Lectures on the Relation between Law and Public Opinion in England during the 19th Century (review)

Here is the question: can a book published at the start of the twentieth century, based on lectures in the United States exploring the relationship between public opinion and legislation in nineteenth-century England, resonate with a twenty-first-century Canadian reader? The answer, unquestionably, is yes.

Albert Venn Dicey (1835-1922) still casts a long shadow over all common law jurisdictions, particularly for his vivid analysis of the rule of law's relationship with democracy. In this study, one Dicey referred to often as 'the best thing' he had written, he views the nineteenth century as comprising three distinct phases of public opinion: the first third of the century as characterized by 'Toryism,' the second third as characterized by individualism, and the final third by collectivism (which spills into the early years of the twentieth century, reviewed by Dicey in his introduction to the second edition in 1914).

Much of Dicey's lectures dwells on legislation that forms the foundation of the administrative state - attempts to regulate workplaces through a series of Factory Acts (like the pivotal Ten Hours Bill of 1850), or prototypes of welfare legislation (Poor Laws), or trade legislation (Corn Laws). In discussing the origins and implications of this legislative journey from Toryism to individualism to collectivism, Dicey describes and engages with debates among Benthamites, Peelites, Tory philanthropists, Whigs, liberals, Jacobins, chartists, nonconformists, dissenters, and socialists, just to name some of the diverse players in nineteenth-century British politics.

Dicey's Law and Public Opinion, first published in 1906, with a second and revised edition in 1914, constituted a marked shift in legal scholarship. It attempted to understand the context within which law (and in particular legislation) arises rather than attempt to analyze the doctrines within legal texts alone. Focusing on currents and cross-currents of public opinion, Dicey's study represents a thoughtful and thought-provoking treatise on the nature of democratic legitimacy. The idea that law should be seen in its social, political, and economic context is taken for granted today, but represented a significant innovation a century ago. Richard VandeWetering's introduction enriches the context of Dicey's contextualism.

While some of Dicey's analysis is now esoteric (he writes 'Bright was not a Legree; Peel was not a Bounderby, nor Gladstone a Gradgrind; Lord Shaftsbury was no political Pecksniff,' Lecture VII, 167), most of it reads as fresh as ever. If anything, the relationship between public opinion and law is even more intertwined today, and even less clear. In an era of instant polling, online protest, and Wikileaks, political action has become more porous, and legislation even more attuned to political consequences, but the fundamental debates between individual and collectivism in legislative trends remains as relevant today as ever.

Dicey's overarching point in Law and Public Opinion is that we are all products of our time, but equally that history cannot determine the pre-eminence of certain ideas that come to define a particular age. As Dicey observed, 'An English lawyer should insist upon the consideration that the relation between law and public opinion has been in England, as elsewhere, extremely complex; that legislative opinion is itself more often the result of facts than of philosophical speculations; and that no facts play a more important part in the creation of opinion than laws themselves' (Lecture XII, 330). We see the intertwining relationship between the development of law and public opinion in very much the same way today. Did the Court's recognition of same-sex marriage lead to a change in public opinion, or was it the product of such a change, or was it a little bit of both? Interestingly, while this dialectic remains as relevant and complicated today, the issues that are determined by it now range well beyond individualism and collectivism. Reconciling diversity, pluralism, and minority rights with majoritarian...