Thursday, July 26, 2018

Allison on Dicey, Magna Carta, and the Rule of Law

John W. F. Allison, University of Cambridge Faculty of Law, has posted Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution, a draft of a chapter accepted for publication in the forthcoming Handbook on the Rule of Law, edited by Christopher May and Adam Winchester (Edward Elgar Publishing).
Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.