Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution
28 Pages Posted: 24 Jul 2018 Last revised: 29 Jul 2018
Date Written: July 5, 2018
Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.
(This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming 'Handbook on the Rule of Law' edited by Christopher May and Adam Winchester and due to be published in 2. Chapter 10 is available at: https://ssrn.com/abstract=3219209.)
Keywords: Magna Carta, Dicey’s rule of law, historical constitution, modernisation, historical comparison, normative interpretivists
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