Pragmatism and Theory in English Law - College of Social Sciences ...

Pragmatism and Theory in English Law 23
In the late nineteenth century Dicey canonised this remedy-based
approach of English law by arguing that the rule
of law on which the fundamental rights of Englishmen
depended, derived in part from the very fact that these fundamental
rights were all based on remedies obtainable in
ordinary litigation. It was not merely chauvinism which led
Dicey to be so contemptuous of the practice adopted by so
many foreign constitutions of granting fundamental rights
to their citizens. 51 "Foreign constitutionalists," he insisted,
had given insufficient weight to the practical remedies by
which constitutional rights needed to be enforced. 52 England,
by contrast, protected fundamental civil rights more
effectively even in in the "absence of those declarations or
definitions of rights so dear to foreign constitutionalists." 53
"The Habeas Corpus Acts," he went on, "declare no principle
and define no rights, but they are for practical purposes
worth a hundred constitutional articles guaranteeing
individual liberty." 54
Dicey was supported in all this by Sir Henry Maine who
pointed out in his essays on Popular Government, first published
in 1885, 55 that out of some 350 constitutions said to
have been adopted since 1800, the worst and the least successful
had been those "which announcefd] their character
by beginning with a Declaration of the Rights of Man." 56
50 Dicey's scepticism about constitutions which contained
mere paper declarations of rights may have been fully justi-
51 Dicey, Law of the Constitution (9th ed.), p. 195-196 (first published 1885).
52 Ibid, at p. 198.
53 Ibid, at p. 197.
5 * Ibid, at p. 199.
55 The first edition in book form appeared in 1885, but the essays had previously
appeared in the Quarterly Review so they were presumably available
to Dicey when he was writing The Law of the Constitution.
56 (2nded., 1890), p. 175.