Albert Venn Dicey and the Constitutional Theory of Empire

Abstract

In the post-1945 world, constitutionalism has transcended the nation-state, with an array of transnational arrangements now manifesting constitutional characteristics — so says a growing number of scholars. This paper reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late-nineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the paper shows that, when the Empire was at the height of its power and prestige, British constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This paper focuses in particular on parliamentary sovereignty, a constitutional principle that for Dicey was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the paper rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to bring empire back into the picture.

Keywords: constitutional theory, Albert Venn Dicey, legal history, British Empire, transnational constitutionalism