Albert Venn Dicey y la escuela de derecho de Oxfordciencia frente a tradición en una época progresiva (1835-1922)

Abstract

Albert Venn Dicey holds a prominent place in the English law of the late nineteenth and early twentieth centuries. It has been said of him that he set the tone for the teaching of 20th century British constitutional law. The prestige of his figure has been intimately linked to the Vinerian Chair of English Law at Oxford University, whose first incumbent was William Blackstone (1758). William Holdsworth, the ninth occupant of the chair, stated that Dicey would remain in the history of nineteenth-century legal literature in a place not inferior to that which Blackstone occupied in that of the eighteenth century. The eleventh professor, Harold Hanbury, in turn called Dicey the "prophet of the constitution." His greatest critics also extolled his figure. "The incomparable grace of his style, the lucid depth of his thought," wrote Laski, “have given the book [Law of the Constitution] a place alongside Bagehot and Bryce and De Tocqueville as an irreducible minimum of the political analysis which the modern student of government must read”. Jennings in turn proclaimed that only Dicey, among English jurists, could be compared with Laband, Jellinek, Duguit or Hauriou. A brilliant student, he obtained a first class in Literae Humaniores, but also passed the School of Jurisprudence and Modern History. His time at Oxford coincided with a keen interest in the reform of legal education in England. In 1846 a committee appointed by the Commons had published a Report on Legal Education on legal education which recorded the parlous state of legal education. Dicey was socialized in his Oxford undergraduate years in liberal milieus in favor of Oxford curricular reform, specialization, and for the case of law, the construction of an English legal science. Dicey was admitted as a student at Inner Temple in 1858 and became a barrister in 1863. It was a disruptive time for English jurisprudence. In 1861 the second edition of John Austin's Lectures on Jurisprudence was published and Maine published his Ancient Law – a year earlier Macaulay's Indian Penal Code was adopted. The London Inns of Court organized some legal education for barrister candidates, although compulsory examinations were not implemented until the following decade. An attendee at the Maine lessons, Dicey recognized their importance. During the 1960s and 1970s, Dicey devoted himself to law and journalism. He was assistant to important law officers in the service of the Crown such as John D. Coleridge (1820-1894) or John Holker (1828-1882) and in 1876 he was appointed to the post of Junior Standing Counsel to the Commissioners of the Inland Revenue. At the same time he was involved in political projects together with the group of former University liberals from Oxford and Cambridge. They were especially active in three parliamentary or judicial battles: the repeal of the Test Acts, the parliamentary reform of 1867 and a Jamaica Committee led by Mill not to criminally charge the governor of the island for the violent suppression of a protest. The young Dicey and his group of jurists showed great enthusiasm for the codifying enterprise during the sixties and seventies and he personally devoted themselves to the composition of digests of different branches of English law: "The aim of this treatise" - reads the first line of his first treatise - "is to reduce or digest the law of parties into a series of rules". His Parties to an Action (1870) and his Law of Domicil (1879) were digests of these branches of English law whose sole aim was the exposition of English law in a scientific, exact and systematic manner. Dicey was appointed Vinerian Professor at Oxford in 1882. His inaugural lecture (1883) belonged to that preceding intelectual current. The professor advocated a jurist’s universitary training in otder to promote the codification and production of digests. After Law of the Constitution (1885), Dicey occupied himself with four different projects: England's Case Against Home Rule (1886), Conflict of Laws (1896), Comparative Constitutionalism (1895-1900) and Law and Opinion (1905). They all have a common element: the Austinian theory became a mere empty category, an artifice more grammatical than material. In Conflict of Laws, the most technical work, it the analytical theory could be discarded without detriment to the exposition of English private international law, self-sufficient in reports and to a lesser extent in laws, without the need to imagine any unlimited sovereignty coming from the entity called sovereign and from his orders. The great novelty of the period 1886-1905 is the emergence of the State, seriously challenged according to Dicey by the Home Rule of 1886, but also by the agitation of religious or workers’ social groups. A State that juridically did not exist for his Law of the Constitution, appeared later clearly although not without contradictions as a product of English history, tending to become concrete in the English judiciary .