Lectures on the Relation between Law and Public Opinion during the 19th Century – Albert Venn Dicey
A course of lectures delivered at the Harvard Law School in 1898 form the basis of the book; but these have been modified and altered in subsequent presentation at Oxford University. Three opening lectures discuss the relation between law and public opinion, the characteristics of law-making opinion in England, and the influence of democracy on legislation. These prepare the way for the central theme, an analysis of the leading tendencies of English legislation during the past century. Three periods are marked off, in each of which the main current of legislation is clearly shown to be in accordance with certain definite principles: first, the Blackstonian period of Old Troyism from 1800 to 1830, marked by legislative quiescence; second, the period of Benthamism from 1830 to 1870, marked by profound legislative changes in accordance with individualistic ideals; and third, the period of collectivism, from 1865 to 1900, marked by the same Benthamite method of legislative activity, but by an antithetic socialistic or collectivistic ideal. This central discussion is followed by two chapters on counter-currents and cross-currents of legislative opinions and on illustrative tendencies in judicial legislation during the period under review. A final lecture discusses the relation between legislative opinion and the general tendencies of English thought in other spheres and in the writings of notable individuals, such as Harriet Martineau, Charles Dickens and John Stuart Mill.
Lectures on the Relation between Law and Public Opinion during the 19th Century.
Format: eBook.
Lectures on the Relation between Law and Public Opinion during the 19th Century.
ISBN: 9783849653408.
Excerpt from the first lecture:
My aim in these lectures is to exhibit the close dependence of legislation, and even of the absence of legislation, in England during the nineteenth century upon the varying currents of public opinion.
The fact of this dependence will be assumed by most students with even too great readiness. We are all of us so accustomed to endow public opinion with a mysterious or almost supernatural power, that we neglect to examine what it is that we mean by public opinion, to measure the true limits of its authority, and to ascertain the mode of its operation. Surprise may indeed be felt, not at the statement that law depends upon opinion, but at this assertion being limited to England, and to England during the last century. The limitation, however, is intentional, and admits of full justification.
True indeed it is that the existence and the alteration of human institutions must, in a sense, always and everywhere depend upon the beliefs or feelings, or, in other words, upon the opinion of the society in which such institutions flourish.
“As force,” writes Hume, “is always on the side of the governed, the governors have nothing to support them but opinion. It is, therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan of Egypt, or the Emperor of Rome, might drive his harmless subjects, like brute beasts, against their sentiments and inclination; but he must, at least, have led his mamelukes, or prætorian bands, like men, by their opinion.”
And so true is this observation that the authority even of a Southern planter over his slaves rested at bottom upon the opinion of the negroes whom he at his pleasure flogged or killed. Their combined physical force exceeded the planter’s own personal strength, and the strength of the few whites who might be expected to stand by him. The blacks obeyed the slave-owner from the opinion, whether well or ill founded, that in the long run they would in a contest with their masters have the worst of the fight; and even more from that habit of submission which, though enforced by the occasional punishment of rebels, was grounded upon a number of complicated sentiments, such, for example, as admiration for superior ability and courage, or gratitude for kindness, which cannot by any fair analysis be reduced to a mere form of fear, but constitute a kind of prevalent moral atmosphere. The whites, in short, ruled in virtue of the opinion, entertained by their slaves no less than by themselves, that the slave-owners possessed qualities which gave them the might, and even the right, to be masters. With the rightness or wrongness of this conviction we are not here in any way concerned. Its existence is adduced only as a proof that, even in the most extreme case conceivable, Hume’s doctrine holds good, and the opinion of the governed is the real foundation of all government.
But, though obedience to law must of necessity be enforced by opinion of some sort, and Hume’s paradox thus turns out to be a truism, this statement does not involve the admission that the law of every country is itself the result of what we mean by “public opinion.” This term, when used in reference to legislation, is merely a short way of describing the belief or conviction prevalent in a given society that particular laws are beneficial, and therefore ought to be maintained, or that they are harmful, and therefore ought to be modified or repealed. And the assertion that public opinion governs legislation in a particular country, means that laws are there maintained or repealed in accordance with the opinion or wishes of its inhabitants. Now this assertion, though it is, if properly understood, true with regard to England at the present day, is clearly not true of all countries, at all times, and indeed has not always been true even of England.
For, in the first place, there exist many communities in which public opinion—if by that term be meant speculative views held by the mass of the people as to the alteration or improvement of their institutions—can hardly be said to have any existence. The members of such societies are influenced by habits rather than by thoughts. Their mode of life is determined by customary rules, which may indeed have originated in the necessities of a given social condition, or even in speculative doctrines entertained by ancient law-givers, but which, whatever be their origin, assuredly owe their continuance to use and wont. It is, in truth, only under the peculiar conditions of an advanced civilisation that opinion dictates legislative change. In many Eastern countries, opinion—which is better described as traditional or instinctive feeling—has for ages been, in general, hostile to change and favourable to the maintenance of inherited habits. There, as in the West, opinion, in a very wide sense of that word, rules; but such aversion to change as for ages keeps a society within the limits of traditional action, is a very different thing from the public opinion which in the England of the nineteenth and twentieth centuries has demanded constant improvements in the law of the land.
It is possible, in the second place, to point to realms where laws and institutions have been altered or revolutionised in deference to opinion, but where the beliefs which have guided legislative reform have not been what we mean in England by “public” opinion. They have been, not ideas entertained by the inhabitants of a country, or by the greater part thereof, but convictions held by a small number of men, or even by a single individual who happened to be placed in a position of commanding authority. We must, indeed, remember that no ruler, however powerful, can stand completely alone, and that the despots who have caused or guided revolutions have been influenced by the opinion, if not of their own country, yet of their generation. But it may be asserted with substantial truth that Peter the Great laid the foundation of Russian power without much deference to the opinion of Russia, and that modern Prussia was created by Frederick the Great, who certainly drew his ideas of good government from other than Prussian sources. It was not, then, the public opinion of the Russian people or the public opinion of the Prussians, but the convictions of a single man which in each case moulded the laws and institutions of a powerful country. At this moment legislation in British India is the work of a body of English specialists who follow to a great extent the current of English opinion. They are, indeed, it is to be hoped, guided far more by their own experience and by their practical knowledge of India, than by English sentiment; but Anglo-Indian officials though they may not always obey the transitory feelings of the English public, certainly do not represent Indian public opinion.
In the third place, the law of a country may fail, for a time, to represent public opinion owing to the lack of any legislative organ which adequately responds to the sentiment of the age. A portion, at least, of that accumulation of abuses, which was the cause or the occasion of the French Revolution, may fairly be ascribed to the want of any legislative body possessing both the power and the will to carry out reforms which had long been demanded by the intelligence of the French nation. Some critics may, it is true, deny that a legislative organ was lacking: a French king held in his hands under the ancien régime an authority nearly approaching to sovereign power, and an enlightened despot might, it has been suggested, have conferred upon the country all the benefits promised by the Revolution. But the power of the French Crown was practically more limited than modern critics always perceive, whilst the circumstances no less than the character of Louis XV. and Louis XVI. disqualified these monarchs for performing the part of enlightened despots. The “Parliaments,” again, which assuredly possessed some legislative power, might, it has been argued, have reformed the laws and institutions of the country. But the Parliaments were after all Courts, not legislatures, and represented the prejudices of lawyers, not the aspirations of reformers; Frenchmen, zealous for the removal of abuses, looked, as a matter of fact, with more hope to the action of the king than to the legislation of Parliaments which represented the antiquated conservatism of a past age. The want, then, of a legislative organ was in France a check upon the influence of public opinion. Nor can it be denied that even in England defective legislative machinery has at times lessened the immediate influence of opinion. The chief cause, no doubt, of the arrest of almost every kind of reform during the latest years of the eighteenth and the earlier part of the nineteenth century, was a state of feeling so hostile to revolution that it forbade the most salutary innovations. But “legislative stagnation,” as it has been termed, lasted in England for at least ten or twenty years beyond the date when it ought naturally to have come to an end; and it can hardly be disputed that this delay in the improvement of English institutions was due in part to the defects of the unreformed Parliament—that is, to the non-existence of a satisfactory legislative organ.
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