Albert Venn Dicey

A. V. Dicey was a constitutional theorist. He was one of the key writers looked to by the authors of the Australian constitution. Lewans suggests that ‘Dicey revered Bentham’s utilitarian principle – that legislation should promote the greatest happiness of the greatest number’.¹ Dicey himself stated that:

The history of modern English law is the history of a gigantic revolution produced by the ideas of one man. Under the influence of Bentham, half a century or more of stagnation has been followed by half a century of innovation…. Hardly a single portion of English law has, since George the Fourth came to the throne, escaped the influence of reform. The constitution of Parliament has been changed. … For half a century the thoughts of Bentham have been working in the minds of men, many of whom have forgotten or have never known the name of the great jurist. The fruit of his ideas has been a movement of which the last generation saw the beginning and of which the present generation will not see the end.²

The book by Dicey most referred to by the Australians was Introduction to the Study of the Law of the Constitution. In that book Dicey looks (more or less) approvingly to John Austin’s distinction between political and legal sovereignty, and the real limits placed upon the capacity for a sovereign to make laws – be that sovereign a despotic individual or an elected parliament.³. Despite this political reality, parliament knows no legal limit to its law-making capacity. It thus has (legal) sovereignty. This is a single sovereignty. For some constitutional theorists this idea of a single sovereignty that can be readily identified is important.

There is another work that is also of use to illustrate Dicey’s interest in the Benthamite influence on British law and society.  That is Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. This book deals extensively with Benthamism, though, according to Lewans, Dicey casts that influence exclusively as a philosophy of individualism.⁴ As can be found in these posts, even Engels agrees that Benthamism lay behind more collective endeavours.⁵

What was the effect of Dicey’s work? Well, because it conceptualised the federal structure as a single sovereignty divided between the federal sphere and the states, and because, accordingly, it looked to the Australian people as a single mass as well as being citizens of individual states, Dicey’s theories allowed for a national Australian identity as well as a state identity, rather than an identity that remained fixed in the states. One could be as much an Australian as, for example, a Tasmanian or a South Australian. For further discussion of this see Nicholas Aroney, Imagining a Federal Commonwealth: Australian Conceptions of Federalism, 1890-1901, Federal Law Review [2002] 10.

It is arguable, therefore, that the very idea of an Australian identity can be traced, at least in part, to Benthamite sources and their conception of sovereignty. But remember, similar ideas can be found in Madison’s Federalist No 39. The USA, after all, is not short of a national identity. Anyhow, this collective identity that unites sovereign units might well be traced back to the battle of Thermopylae – or at least, to Greek federalism. For a discussion of Greek federal identity, see Freeman’s History of federal government in Greece and Italy. This book, too, was influential amongst the authors of the Australian federal constitution. Freeman was clear in his book about the debt he owed Grote and his History of Greece. Grote was a key utilitarian whose history helped make democracy acceptable to his British audience.

1. Matthew Lewans , Rethinking The Diceyan Dialectic, University of Toronto Law Journal, Volume 58, Number 1, 2008, p97 [↩]

2. A. V. Dicey, ‘Modern English Law’, The Nation (2 Nov. 1876), xxiii, 273, p273 [↩]

3. A. V. Dicey, Introduction to the Study of the Law of the Constitution, London, MacMillan & Co Ltd, 1961, 72ff [↩]

4. Lewans, Diceyan Dialectic, pp98-99 [↩]

5. See also, for example Axel Kirk Davies – The Utilitarian Foundations Of Collectivism, No. 15 in Series Libertarian Heritage, London: Libertarian Alliance, 1995, Mary Peter Mack, The Fabians and Utilitarianism, Journal of the History of Ideas, Vol. 16, No. 1. (Jan., 1955), pp. 76-88. There are relevant links to Engels’ work in these posts. [↩]