Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter D.4: Dicey, Albert Venn
Albert Venn Dicey (1835–1922) was the author of a treatise which was first published in 1896 as A Digest of the law of England with reference to the p. 530conflict of laws and which became, as Dicey’s Conflict of Laws, the leading book on private international law in the British Commonwealth. Dicey came from a distinguished family. His mother’s brother was Sir James Stephen, a senior civil servant who was instrumental in the passage of the Slavery Abolition Act in 1833. Sir James Stephen was the father of Sir James Fitzjames Stephen, the judge and author of History of the Criminal Law of England, and of the critic Sir Leslie Stephen. Dicey was thus the second cousin of Sir Leslie Stephen’s daughter, Virginia Woolf.
Dicey was educated at Balliol College, Oxford, which he entered in 1854. He obtained a first class degree in classics, and was president of the Oxford Union. At Oxford he helped found the Old Mortality Society, which included a number of individuals who afterwards attained great distinction, including the poet Algernon Charles Swinburne, Thomas Hill Green (later a very distinguished philosopher), and James Bryce (later Viscount Bryce), who became Dicey’s lifelong friend and who was successively Regius Professor of Civil Law, a member of the British parliament, a member of the cabinet, British ambassador to Washington, and author of The American Commonwealth. A photograph of the Old Mortality Society in the National Portrait Gallery shows that the young Dicey bore a close resemblance to his novelist cousin, Virginia Woolf.
In 1860 Dicey was awarded a fellowship at Trinity College, Oxford. He moved to London in 1861 and became a barrister at the Inner Temple in 1863. His practice at the bar was never very lucrative. In 1876 he was appointed junior counsel to the Commissioners of Inland Revenue and he was appointed Queen’s Counsel in 1890.
In 1870 Dicey published A Treatise on the Rules for the Selection of the Parties to an Action (1870). This was arranged in the form of illustrations and rules, as was his second book, The Law of Domicil, as a Branch of the Law of England, Stated in the Form of Rules, published in 1879. This was not just a book on the ascertainment of domicile (→Domicile, habitual residence and establishment) but also included its legal effects, and, as he said, therefore covered two-thirds of the subjects covered in Story’s Conflict of Laws or Westlake’s Private International Law: ‘The law of domicil is therein reduced into a series of definite rules, which being based on statutory enactments, decided cases, or inferences drawn from authoritative dictator or admitted principles, constitute, in so far as my work has been successfully performed, a code of what might be termed the English law of domicil’ (Dicey, The Law of Domicil (1879), preface, p. v).
In 1881 the Vinerian Professorship of English law in the University of Oxford became vacant. Dicey decided to become a candidate and he was elected to the chair in 1882, and became a fellow of All Souls College. He had been interested in politics and constitutional law from an early age. In 1885 he published what became known as Introduction to the Study of the Law of the Constitution, which was based on his Oxford lectures, and went into seven editions in his lifetime, and in 1905 he published Lectures on the Relation between Law and Opinion in England in the Nineteenth Century, which was based on lectures he gave at the Harvard Law School in 1898. In England and elsewhere he is best known in educated circles for these influential and widely read works, rather than for his Conflict of Laws, and his principal biographer, Professor Richard Cosgrove, regards these as his greatest achievement.
Dicey began work on his Conflict of Laws in 1882, and it was not finished until 1896. As he wrote to Justice Oliver Wendell Holmes in 1898: ‘It began as a sort of expansion of my Domicile & now alas has misdeveloped into a huge unwieldy “Digest”.’ In the preface to the first edition Dicey said that his aim was to apply to the whole field of private international law the method treatment already applied in his book on domicile, and he acknowledged his debt to Story, Westlake, Foote, Wharton and to Piggott’s work Jurisdiction and Foreign Judgments. He also added that he had not neglected to consult Savigny and von Bar, but ‘to no single English writer, let me add, am I more deeply indebted than to Mr Westlake’. But privately he wrote to Oliver Wendell Holmes that Story and Savigny were the only authors worth reading on the subject, although he also acknowledged his debt to Westlake.
Dicey was profoundly dissatisfied with his work. In 1894 he wrote to James Bryce ‘I wish less of my time had been given to this horrible conflict of laws’, and after its publication, he wrote to Bryce ‘I am well assured that Story and Savigny have written the only great books on the subject and, considering the state of legal speculation in Story’s time and country, I am not sure that his is not the greater achievement of the two. If I had Westlake’s knowledge or if Westlake could have expressed himself as clearly as I can, a considerable book might have been produced . . . Why should I have ever become involved in this conflict of laws?’
It was published in 1896, and, despite Dicey’s misgivings, became a great success. Westlake wrote a long and favourable review of the book, which he hailed ‘as long expected’ in the Law Quarterly Review. Professor Joseph Beale, later the author of the First Restatement on the Conflict of Laws and of a three- volume treatise on the subject, reviewing the book in the Harvard Law Review, while questioning the use of rule, comment and illustration, found the book ‘highly satisfactory. He has succeeded in a few lines in stating the fundamental principles of his subject better than they have ever been stated before . . . Starting with these principles, Professor Dicey could write, and has written, the best book on the subject. His analysis and arrangement are strikingly novel, and commend themselves entirely . . .’ (Joseph H. Beale, ‘Dicey’s “Conflict of Laws”’ (1896) 10 Harvard L. Rev. 168).
In order ‘to render the treatise useful to American readers’ it also contained at the end of each chapter a statement of United States law contributed by the very distinguished jurist Professor John Bassett Moore, of Columbia University, who Westlake said in his review had ‘a scientific position in his country equal to that of the principal author in England’. John Bassett Moore is now known exclusively to public international lawyers, as the author of the multi-volume works History and Digest of International Arbitrations and Digest of International Law and later a judge of the Permanent Court of International Justice.
Dicey produced a second edition in 1908, and in the following year he resigned from the Vinerian chair. A third edition was produced in 1922 in collaboration with Professor Arthur Berriedale Keith, who was by no means a specialist in the field. Berriedale Keith had been a senior civil servant, and in 1914 became Regius Professor of Sanskrit and lecturer in constitutional history in the University of Edinburgh.
Dicey died shortly after the publication of the third edition in 1922. Oliver Wendell Holmes wrote to Sir Frederick Pollock: ‘What a dear, naïf, ingenuous creature he was, and how modest as to his own powers’ (Holmes-Pollock Letters, The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874–1932, vol 2 (ed Howe 1941) pp. 155–56).
In the introduction Dicey praised the positive method adopted by English academic writers on private international law who seek ‘to discover not what ought to be, but what is the law’, but he acknowledged that English writers will also find ‘opportunities for the legitimate application of the theoretical method’, ie the more normative style of analysis adopted by continental jurists, for when ‘as often happens’ legal problems have no obvious answers one must look to ‘arguments drawn from general principles’.
Professor Yntema said in 1951 that Dicey’s Conflict of Laws had exerted a profound influence on the writings of Beale, and therefore on the First Restatement of the Conflict of Laws. But the book went into a decline after Dicey’s death. Berriedale Keith produced two more editions but the book was not what it was, and in 1935 Dr (later Professor as holder of the same chair as Dicey) Geoffrey Cheshire produced his Private International Law, mainly a student text but more modern than Dicey.
Berriedale Keith died in 1944, and in 1945 Dr JHC Morris, of Magdalen College, was invited by the publishers to undertake the editorship, but by 1946 he felt that the task was beyond his strength and he invited what he described as seven friends to help him, all of whom were very distinguished. They included Zelman (later Sir Zelman) Cowen and (among many other distinguished positions) Governor-General of Australia, Rupert (later Sir Rupert) Cross, Otto (later Sir Otto) Kahn-Freund, Dr (later Professor) Kurt Lipstein, and two public international lawyers, Dr (later Professor) Clive Parry and Professor Ben Wortley.
Under the general editorship of John Morris the work was revitalized and it was in this period that its worldwide fame and influence spread even further than it had before the war. Although John Morris was primarily an academic, with only a modest practice at the bar, he treated it as ‘essentially a practitioners’ book, not a work on theoretical jurisprudence’, as he put it in the preface to the sixth edition. As Lord Scarman said in the foreword to an entire p. 531issue of the International and Comparative Law Quarterly in 1977 devoted to essays in honour of John Morris, ‘the depth and range of his learning coupled with his gift of critical analysis brought the flattering consequence that what Dicey said on a point mattered as much to the judges who made the case-law as did their case-law to the editor of Dicey.’
Dr Morris produced as general editor five editions of the book, and from the seventh edition in 1958 it became Dicey and Morris on the Conflict of Laws. He died in 1984, and Lawrence Collins (later Sir Lawrence Collins, as a judge of the High Court and of the Court of Appeal, and Lord Collins of Mapesbury, as a member of the Appellate Committee of the House of Lords and then as Justice of the Supreme Court of the United Kingdom) became general editor for the 11th edition in 1987. The work is now known as Dicey, Morris and Collins on the Conflict of Laws and is in its 15th edition (2012).
The work is constantly cited in judicial decisions in the United Kingdom and throughout the Commonwealth. The influence and popularity of the work has had much to do with the exposition of the law by rule, comment and illustration. The method of rule and comment has not been without criticism from the earliest days, not least from Professor Beale himself. That structure is, in particular, not easy to fit the structure of rule, comment and illustration into the ever-growing incorporation of European Union law in private international law, but there can be no doubt that the authority of the work for judges and practitioners has been aided immensely by the use of that structure to expound the law in this difficult and sometimes over-theoretical area.
GW Bartholomew, ‘Dicey and the Development of English Private International Law’ (1959) 1 Tasm U.L.Rev. 240;
Joseph H Beale, ‘Dicey’s “Conflict of Laws”’ (1896) 10 Harv.L.Rev. 168;
Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) xxi–xxv, biographical notes on Albert Venn Dicey and John Humphrey Carlile Morris;
Richard A Cosgrove, Albert Venn Dicey, Victorian Jurist (University of North Carolina Press 1980);
Richard A Cosgrove, ‘Albert Venn Dicey’ in Oxford Dictionary of National Biography (online edition, 2004);
Mark D Walters, ‘Dicey on Writing the Law of the Constitution’ (2011) 32 Oxford J.Leg.Stud. 21;
John Westlake, Book review (1896) 12 LQR 397;
Hessel E Yntema, ‘Dicey: An American Commentary’ (1951) 4 ILQ 1.