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

Pragmatism and Theory in English Law 25
declarations of constitutional rights, and effective means of
enforcement as well. 58 But he was at pains to insist that the
American Bill of Rights had little in common with European
declarations of rights, and was in truth more on a par
with the English Petition of Right; the English and the
American "rights" were not in truth "declarations of
rights" in the "foreign" sense of the term, but rather
judicial condemnation of claims and practices on the part of
the Crown thereby declared to be illegal. 59
The answer to this apparent counter-example to Dicey's
views may also have come from Sir Henry Maine. In his
Popular Government, Maine had demonstrated to his own
satisfaction, and perhaps also to Dicey's, that the American
Constitution was in truth founded on the principles of the
British Constitution of the late eighteenth century. It could
thus be exempted from the criticisms directed against European
constitutions, notwithstanding its Bill of Rights. In
any event, it is fair to say that the American experience was
not much known or studied in England until after the
Second World War, and it is, of course, also true that the
American Bill of Rights was not in practice such a potent
source of practical and effective rights until quite recent
times. So it is hardly surprising if in the nineteenth and
early twentieth centuries English lawyers should have taken
some satisfaction in the apparently greater ability of their
own legal system to provide some effective guarantees for
civil rights in comparison with European countries. For my
purposes, it is really quite immaterial whether this view of
English law was a grossly exaggerated picture of political
reality, seen through rosy coloured Whiggish eyes, as some
Ibid, at pp. 199-200.
• w Ibid, at p. 200, n. 1.