The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A. V. Dicey. But for all of Dicey's influence, little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey's thinking about the rule of law into view. On Dicey's account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey's preoccupations and ambivalences are in many ways our own.     

The Law and the Constitution: Manifesto of the Progressive Party

This paper analyses the argument of Jennings' path-breaking work, The Law and the Constitution , and assesses its importance. The argument of the paper is that a basic tension runs through the evolving work: between celebrating the democratic nature of the contemporary constitution whilst expressing certain concerns about democracy's potential implications. This is a tension that Jennings was never able satisfactorily to resolve. The Law and the Constitution nevertheless remains a landmark text, especially in reminding lawyers of the need to look to the social and economic explanations for constitutional change. Although the constitution Jennings was writing about has altered, his public law method of examining the purpose for which public power is acquired before reflecting on desirable constraints remains of value today.     

'Talking in Fictions': Jennings on Parliament

Sir Ivor Jennings made many ground-breaking contributions to the study of Parliament. Among them are two books written in the 1930s, while Jennings was at the peak of his powers: Parliamentary Reform in 1934, ¹ and Parliament in 1939. ² This essay offers an assessment of Jennings' scholarship on Parliament. It commences with some observations on his method, and this is followed by an outline of the argument in Parliament and an appraisal of the book's originality and ongoing significance. The essay closes with some brief remarks concerning Jennings' Parliamentary Reform .     

无涉道德的宪法--重读戴西的宪法理论

戴西的宪法理论在中国颇有影响,其著作常被奉为“宪法经典”,但并不等于这部著作成为了应变万事的“真理”。本文从三个方面剖析了戴西的宪法理论中缺乏司法违宪审查的根源,即议会主权原则确立了法律的不可审查地位,形式化的法治原则绝断了追问法律是否正当的可能性,将宪法惯例故意释为宪法道德误导了对司法审查的认识。戴西宪法理论的这些特征与其法律实证主义的理论背景不可分,他通过对立政治与法律,使宪法与政治道德无涉。但是,戴西的宪法理论并不是无懈可击,本文在上述三方面的基础之上进一步揭示了其理论的“缺陷”,而这些“缺陷”为建立司法违宪审查制度给予了充分的提示。     

现代英国法治理论的经典表述--戴雪的法治观及现代批判

1885年英国著名宪法学家戴雪在他发表的<英宪精义>中,第一次明确界定了"法治"的含义.强调了法治原则.认为法治有三种含义.其强调的法治为法律至上、司法独立、司法救济和人人平等守法,并主张贬抑日益扩张的行政权.他的法律哲学理念基本上是洛克式的.他的法治主张受制于当时的时代,至50年代英国宪法学家对戴雪的法治提出质询和批判,但20世纪英国法治理论是对戴雪法治观批判的基础上建构的,后人只能是批判、修补或发展.