Democratic Governance by Bevir Mark

Author:Bevir, Mark
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2010-07-28T16:00:00+00:00

After Dicey

Dicey’s constitutional views proved extremely influential among both academics and political actors. Even if Bagehot loomed as large over the imagination of political scientists interested in government, Dicey clearly defined the agenda for legal scholars and others interested in the constitution and the judiciary.[9] For most of the twentieth century the dominant image of the British political system was of a Westminster model defined in terms of parliamentary sovereignty. The Westminster model suggests that the courts merely interpret acts of Parliament to the best of their abilities. Judges are meant to rule in accord with the intention of the legislature: their decisions are meant to reflect how a given act was designed to function. Judges are not meant to challenge, let alone overturn, legislation as they can in, for example, the United States. Indeed, by combining parliamentary sovereignty with a concept of the rule of law that was based on precedent, Dicey’s followers implied that a judge should never actually challenge an existing law, regardless of whether that law arose from a legislative act or from the past decision of a judge. Any attempt by the courts to reexamine the content of law appeared to be an abuse of their power.[10]

Social scientists and legal scholars have been slow to recognize the impact of their work on the world they study. It is thus important to mention the extent to which Dicey and his followers helped to construct the very world about which they wrote. Their constitutional views influenced political and legal actors, thereby helping to bring into being the kind of constitution they argued existed. One prominent example is the comparatively weak development in the twentieth century of administrative laws covering the expanding welfare state. Britain proved slow to devise an administrative law that applied solely to government actions and procedures and not to private corporations or individuals. Many jurists believed that such an administrative law was incompatible with Dicey’s account of the role of equality and precedent in the rule of law. British administrative law thus tended to develop through the application of case law based on private law.

For a hundred years Dicey’s Law of the Constitution was the preeminent work in the field. Of course, Dicey’s views were challenged often and vigorously during that time. Sir Ivor Jennings in particular argued that the constitution should be understood in the context of social and economic changes.[11] Yet, despite such challenges, Dicey’s authority began to crumble only in the 1970s. Just as Dicey’s views reflect the problems of nineteenth-century democratization, so the turn away from his views owes much to the new theories and worlds of governance. New theories, such as behavioralism and rational choice theory, undermine his assumptions about the behavior of political actors and institutions. New international worlds, notably the rise of the European Union, challenge the practicability of his concept of parliamentary sovereignty. New domestic worlds, including contracting out and regimes of regulation, challenge his concept of the rule of law.

Juridification and Governance

The new theories and worlds of governance decisively undermine the Westminster model.

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