I.

In his final lecture as the Vinerian Professor of English Law at Oxford in 1909, Albert Venn Dicey reviewed the state of legal literature in England. He argued that there had been a dark age for legal writing and then a renaissance. The renaissance dated, he said, “from 1861… [with] the publication of Maine’s Ancient Law and the republication of Austin’s forgotten The Limits of Jurisprudence Determined”. The appearance of their books in the same year meant that the approaches of Sir Henry Maine and John Austin were “placed in curious juxtaposition”: for late-Victorian legal scholars, the field of jurisprudence came to be dominated by Maine’s “historical method” and Austin’s “analytical method”.

It is often assumed that Dicey followed Austin rather than Maine. In the first chapter of his most famous book, originally published in 1885 as Lectures Introductory to the Study of the Law of the Constitution, Dicey explained that he would adopt a legal perspective for his examination of the British constitution rather than an historical or political perspective. He insisted that historical accounts of the constitution often amounted to “mere antiquarianism” that was unhelpful for lawyers, and he gave as an example Edward Freeman’s book The Growth of the English Constitution from the Earliest Times. After a brief discussion of Freeman’s book, Dicey added the following qualification:

Let no one suppose that to say this is to deny the relation between history and law. It is far better, as things now stand, to be charged with heresy, than to fall under the suspicion of lacking historical-mindedness, or of questioning the universal validity of the historical method. What one may assert without incurring the risk of such crushing imputations is, that the kind of constitutional history which consists in researches into the antiquities of English institutions, has no direct bearing on the rules of constitutional law in the sense in which these rules can become the subject of legal comment.

The passage is curious. Although Dicey claimed to accept a link between history and law, he acknowledged the historical method with a sarcastic tone which may suggest insincerity. A review of Dicey’s book in The Spectator went so far as to describe the passage as a “sneer at the historical writers”. But which historical writers? Dicey clearly rejected Freeman’s work as relevant for the legal analysis of the constitution; however, his sneer, if that’s what it was, appeared directed not just at Freeman but at the historical method generally. He did not refer expressly to Maine here or elsewhere in his first chapter. However, it is reasonable to conclude that his reference to the historical method in this passage was a reference to Maine’s work. Maine was, Dicey had said several years earlier, “the greatest living master” of “the historical method”.

It is often thought that Dicey’s objective in the opening chapter of Law of the Constitution was to set the stage for a legal analysis of the constitution insulated from historical and theoretical contexts—that Dicey adopted an “anti-intellectual” approach that severed law from history leaving the lawyer as a mere “mechanic”. This reading is consistent with the standard view of Dicey as “the high priest of orthodox constitutional theory” whose method was analytical, mechanical, and positivist. Dicey may have acknowledged Maine’s historical method, but only in a backhanded way. In the end, Dicey was “[a] n exponent of analytical legal positivism”, “the first to examine the British constitution using an analytical legal method”. Dicey sided with Austin over Maine.

There are several problems with this reading of the first chapter of Dicey’s Law of the Constitution. To begin with, the claim that Dicey sought to sever the study of law from historical (or other) contexts bears no relation to the rest of Dicey’s book. As The Spectator review observed, Dicey’s Law of the Constitution was (despite the “sneer”) “full of evidence of historical-mindedness on the part of its author”; indeed, the reviewer thought that Dicey was indebted to both Freeman and Maine.

The apparent discrepancy between Dicey’s stated rejection of the historical perspective and his subsequent use of historical and comparative analyses might suggest methodological confusion or incoherence. The better interpretation, however, is that Dicey’s sarcastic reference to the historical method in the first chapter was not a rejection of the relevance of history to law, but it was his way of signaling a concern about the relevance of a particular kind of history to law. Dicey’s meaning may have become lost on later readers because the subject of his concern, the historical method, was soon to fall out of fashion and into obscurity within the field of legal scholarship. Maine’s application of the historical method to jurisprudence was for a time a defining feature of English legal philosophy—and then almost overnight it wasn’t. What was the historical method and why would its application to the constitution have concerned Dicey?

In this essay, I return to Dicey’s critique of the historical approach to the constitution in the first chapter of Law of the Constitution, and in particular his critique of Freeman (II). I then compare Freeman’s method with Maine’s method and consider whether Dicey, by rejecting Freeman, also rejected Maine (III). I will then reconsider Dicey’s responses to Maine and his arguments for and against the historical method in his writings beyond Law of the Constitution (IV). I will conclude with some reflections on Dicey’s approach to the question of law, constitutionalism, and the idea of continuity (V). Although I have considered Dicey and Maine in previous work, this essay provides an opportunity to explore the relationship in greater detail. Dicey’s concern with Freeman, and perhaps by implication Maine, was not with constitutional history as such but with an approach to constitutional history that purported to find in ancient law an ancient constitution of freedom that progressed through time to become the modern British constitution. Dicey may have been a Whig, but his relationship to so-called whig theories of ancient constitutionalism was multi-layered and complex.

II.

With the decision of Sir Henry Maine to leave Oxford for Cambridge in 1878, the Corpus Professorship in Jurisprudence was left vacant. A.V. Dicey applied for the chair, but in late 1882 he was appointed Vinerian Professor of English Law instead and Frederick Pollock was then appointed Maine’s successor as Professor of Jurisprudence in early 1883. Edward Freeman would join the professorial ranks at Oxford the next year when he was appointed Regius Professor of Modern History. Maine, Dicey, Pollock, and Freeman were part of the group of “academic liberals” that formed a subset of the influential “public moralists” that were drawn mainly from the close-knit “intellectual aristocracy” of nineteenth-century Britain. These are labels imposed later, of course, but they capture the close personal and professional relationships between members of the overlapping intellectual circles of the day. It is worth considering how those connections influenced the articulation of ideas. We may note, for example, that Maine had read relevant parts of Dicey’s Law of the Constitution, perhaps in manuscript form, and in an undated letter questioned Dicey about his failure to consider parliamentary sovereignty within an historical context, adding: “Don’t trouble yourself to answer these heresies of mine. When we next meet at the Athenaeum, you can tell me what you think”. So both Dicey and Maine accepted that they might be seen as committing either heresy or worse according to the perspective of the other, though they appeared to do so in a tone of subtle jest that made sense given the conversations that they had been having about their respective ideas.

The three new Oxford professors proceeded to give inaugural lectures in 1883-1884 that shared some common themes but also revealed distinctive styles and interests—and each was affected in some way by the powerful legacy of Maine. Dicey gave his inaugural lecture in April of 1883. As he informed Freeman, the title of his lecture, “Can English Law Be Taught At The Universities?”, was perhaps “wanting in dignity”, but his objective was to defend university legal education in the “plainest terms”. Later, when preparing the lectures that would become Law of the Constitution, Dicey said to Freeman that his decision to focus on “what the law actually is” rather than “the historical aspect” was based upon his sense of “what the men here really need”—“men” being students studying for a degree in law. Dicey’s inaugural lecture offered an accessible, at times entertaining, critique of professional legal education and it carved out a future for university legal studies that challenged orthodoxy; but his message was not anti-intellectual and he paused to emphasize the importance of scholarly work by Austin, Maine, and his new colleague Pollock.

In his inaugural lecture delivered in October 1883, Pollock acknowledged Dicey’s lecture and then turned to Maine, explaining in ponderous tones that the “historical and comparative” method was the “formed and polished” instrument “that my predecessor in this Chair has wielded in your presence and before the world: and from his hands I take it in reverence and not without fear, as a common mortal essaying to lift the spear of Achilles.” The two new professors had distinguished themselves in their inaugural lectures by, at very least, a difference in style.

Dicey’s first substantive lecture on constitutional law was a public lecture entitled “The True Nature of (so-called) Constitutional Law” delivered in April of 1884. This lecture became the first chapter of Law of the Constitution. It was on this occasion, then, that he made his point about heresy and the historical method and critiqued Freeman, but he also made a passing reference to “my friend the Corpus Professor of Jurisprudence” whose “vocation” is (he said in obvious jest) “to deal with the oddities or the outlying portions of legal science”. One wonders whether Dicey, in adopting an irreverent tone on the question of historical method, was not simply having a bit of fun with Pollock—offering, with a knowing wink of his eye to those present, a light jab at Pollock’s laboured discussion of Maine’s historical method given a few months before. Dicey was known for his sense of humour. Pollock was not.

Dicey was serious, however, about his critique of Freeman’s Growth of the English Constitution on this occasion. It is important to recall Freeman’s basic thesis in this book. In his view, the history of English constitutionalism was the story of an “immemorial Teutonic constitution” of liberty that had emerged from the “German forests”, was brought to England by the Angles and Saxons in the fifth and sixth centuries, survived the Norman conquest in the eleventh century, was suppressed for three or four centuries by the “cunning of lawyers”, and then gradually restored starting in the seventeenth century largely through non-legal conventions. Freeman opened his book with a description of an existing example of Teutonic constitutionalism that manifested a broader Aryan ideal of liberty, the Landesgemeinden of Uri that he witnessed in Switzerland. There, in local assemblies in the open mountain air, an Englishman could feel “the thrill of looking for the first time face to face on freedom in its purest and most ancient form”, for there “the oldest institutions of our race… still live on in their primæval freshness”. For Freeman, there was an unbroken line of continuity between the ancient Germanic tribal assemblies described by Tacitus in the first century, the pre-Norman Saxon Witenagemót in England, and the modern British Parliament. Constitutional history was a story of return to ancient freedom. “[T] he most wholesome improvements in our Law and Constitution,” he insisted, involved the restoration of principles “as old as the days when we get our first sight of our forefathers in their German forests”; “[w] e have advanced by falling back on a more ancient state of things”.

Dicey had little patience for this kind of constitutional history. He defined law as rules enforced by courts, and for the purpose of understanding the law of the British constitution today, he wrote, “it boots nothing to know the nature of the Landesgemeinden of Uri, or to understand, if it be understandable, the constitution of the Witenagemót.” This is not to say that history is unimportant for the lawyer. But he insisted that history matters for the lawyer differently from the way it matters for the historian.

Dicey and Freeman kept up a friendly correspondence, but they could be hard on each other. In an earlier review of Growth of the English Constitution, Dicey stated that Freeman is “an historian” and “he is not, though he himself seems scarcely aware of the fact, a jurist or even a competent lawyer.” For his part, Freeman held lawyers in contempt, referring to the law school at Oxford as “Dicey’s paradise of a crowd of savage attorneys knowing no Greek”. In his first set of lectures at Oxford, delivered in the autumn of 1884, Freeman did not refer to Dicey expressly but he seized the opportunity to offer a counterview to Dicey’s.

In his inaugural lecture, Freeman began in characteristically florid language to define the domain of the “modern” historian as beginning with the settlement of the Teutonic tribes of the Aryan race after the end of Roman dominance in Europe, “that great day in the history of our race, in the history of the whole world, when it was ruled by the Teutoburg wood that there should be a free Germany to plant a free England, and a free England to plant a free America.” In his second lecture, Freeman addressed the relationship between history and other disciplines, arguing for a “triple alliance” between history, philology, and law. However, in what was perhaps an implicit dig at Dicey’s inaugural lecture, he argued that the perspective of the “professional lawyer” was, for academic inquiry, useless—unless, that is, the lawyer was willing to join “the new school” that had been initiated upon the delivery of lectures “in this place” bearing “the emphatic title of ‘Ancient Law’”, unless, in other words, the lawyer was, like Pollock, ready to lift the heavy spear of Maine’s historical method. Only by doing so could the lawyer read, think, compare, and infer like the historian and “trace the origin … of our English common law through its kindred institutions among every branch of the Aryan family”.

In Law of the Constitution, Dicey would follow Pollock in relation to the nature of common law reasoning and the idea of legal sovereignty. But he would not follow him into the new school of lawyers that Freeman described. The lawyer did not need to follow overgrown paths through the German forests in search of Aryan tribal assemblies of ancient times to understand the law of the modern British constitution. It was not that Dicey denied the relevance of history to law. In the lecture that became the first chapter of Law of the Constitution, Dicey insisted that history does matter for the professional lawyer—but history starting in the seventeenth not the seventh century.

Many historians are, he said, “infected with a love which, in the eyes of a lawyer, appears inordinate, for the germs of our institutions”, but to understand “existing law” only the “later annals” of history will be relevant. Exploring constitutional “germs” was not, in itself, a problem; the question was whether this history was relevant for the lawyer. Dicey’s next comment is important not only because it identified examples of relevant history for the lawyer, as well as an historian able to assist in these areas, but because he also identified another concern about Freeman’s account of ancient law separate from the concern about remoteness and relevance:

[T] hings being as they are, the historian who most nearly meets the wants of lawyers is Mr. Gardiner. The struggles of the seventeenth century, the conflict between James and Coke, Bacon’s theory of the prerogative, Charles’s effort to substitute the personal will of Charles Stuart for the legal will of the King of England, are all matters which touch not remotely upon the problems of actual law. A knowledge of these things guards us, at any rate, from the illusion, for illusion it must be termed, that modern constitutional freedom has been established by an astounding method of retrogressive progress; that every step towards civilisation has been a step backwards towards the simple wisdom of our uncultured ancestors. The assumption which underlies this view, namely, that there existed among our Saxon forefathers a more or less perfect polity, conceals the truth both of law and of history.

The argument Dicey expressed here is complex. He accepted, on the one hand, that tracing the “germs” of the modern constitution back to, say, the ancient Saxon Witenagemót may be relevant to understanding constitutional history, though it will be too remote to be relevant for understanding existing constitutional law; but, on the other hand, he thought that the idea that “modern constitutional freedom” had been established through the recovery of an ancient Saxon constitution involved a method of “retrogressive progress” in historical interpretation that distorted the truth for both history and law. The line that he drew between the former and latter lines of inquiry is not self-evident, though he clearly thought that Freeman was guilty of crossing that line. One difficulty to arise from Dicey’s analysis, however, is that in the seventeenth century, i.e., in the period that he thought was not too remote to be relevant for understanding existing law, lawyers and parliamentarians themselves had advanced, as a matter of history and law, the idea that an ancient free constitution constrained Stuart claims of royal absolutism. Were they guilty of retrogressive progression too? Was their position perhaps bad history but good law?

Although Dicey set out to defend a legal perspective on the constitution, he ended up battling Freeman on Freeman’s own turf, the historian’s turf. To engage in retrogressive progression may be a sin within historical reasoning, but it may also be, in appropriate circumstances, a virtue in legal reasoning. Dicey shifted back and forth between legal and historical perspectives. Much as Freeman would later write, Blackstone had claimed that the British constitution was the result of “a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman”. Dicey of course insisted that this too was a manifestation of “retrogressive progress”, a problem that he defined by reference to historical not legal standards: Blackstone’s statement on the recovery of the ancient constitution was “opposed to the facts of history”; Blackstone had “judge [d] the past by the sentiments or principles of his own day … exhibit[ing] an unhistorical attitude of mind”. Dicey’s verdict was the verdict of the historian. But what of the verdict of the lawyer? Could a legal understanding of the common law’s relationship with the past suggest an alternative assessment of Blackstone’s or Freeman’s claims about the ancient Saxon constitution?

It is worth noting that the historian that Dicey thought would be helpful for lawyers, Samuel Rawson Gardiner, denied the theory of an ancient Saxon or Teutonic constitution and insisted instead that both common law and parliamentary institutions had emerged through the dynamic relationships that defined English politics in the centuries after the Norman conquest. These ideas aligned with Dicey’s own account of English constitutional history, developed in his 1860 essay The Privy Council, which also contains his earliest statement against what he would later call “the astounding method of retrogressive progression”. Paul Vinogradoff would observe that although Dicey in his later work on the constitution would “invariably” (in light of the above observations I would say “mostly”) remain “faithful to a legal approach”, in this short book he engaged in “an historical treatment” of his subject. Sometimes Dicey was the lawyer and sometimes he was the historian.

What should we make of Dicey’s rejection of Freeman’s method of retrogressive progress? Looking at Dicey’s position within the broad sweep of English constitutional historiography, we may say that Dicey rejected the kind of history that Herbert Butterfield would famously denounce in his 1931 book the Whig Interpretation of History—a history that “studies the past with reference to the present”, a history that “imagine[s] the British constitution as coming down to us by virtue of the work of long generations of whigs and in spite of the obstructions of a long line of tyrants and tories.” Dicey also appeared to reject the myth of the “ancient constitution” that Butterfield’s student J. G. A. Pocock exposed in his 1957 book, The Ancient Constitution and the Feudal Law.

True, Pocock focused on a version of the ancient constitution that identified the origins of English law and parliamentary institutions in customs dating from time immemorial, a time of ancient Britons and Druids before Norman, Danish, Saxon, and even Roman invasions, a law with no real beginning at all, a law that therefore was said to precede, define, and condition the authority of all subsequent kings. In Pocock’s account, this ancient constitution emerged from “the common law mind” exemplified by the seventeenth-century jurist Sir Edward Coke, a mentalité resulting from “deep-seated and unconscious habits of mind”. This mentalité formed a distinctive way of understanding constitutional politics and shaped the case against royal absolutism in the seventeenth century. Even in Coke’s day, however, an alternative and a somewhat more historically plausible ancient constitution had begun to emerge that served a similar purpose: the Germanic or Teutonic constitution brought to England by the Angles and Saxons. In the eighteenth century, the hold of the ancient-constitution theory weakened significantly, but the Teutonic version, that the English constitution was invented in the German woods, was still sometimes invoked, for example, in Montesquieu’s L’Esprit des lois, and, as we have just seen, in Blackstone’s Commentaries. It was this version of the ancient constitution that would make a comeback in the work of nineteenth-century historians like Freeman.

The additional historical plausibility the ancient constitution gained by moving from immemorial to Saxon origins, slight as it may be, arguably came at the cost of legal plausibility. In imagining a law with no beginning, the common law mind entered into a normative world of mythical narrative defined by metaphor not fact, a legal narrative that did not purport or need to meet the evidentiary standards of the historian—a kind of reasoning that Maine would scornfully describe (albeit not in relation to constitutional law in particular) as “legal fiction”.

And that is what Dicey thought it was. In an 1872 review of Freeman’s book, Dicey said that the establishment of free institutions through some sense of “restoration of old rights” was an “amiable delusion” that Freeman was under because he had been taken in by a “fiction” about legal continuity that, though “very useful in its day”, was still a fiction. Picking up on this point again in Law of the Constitution, Dicey praised the “enlightened statesmanship” of seventeenth-century jurists like Coke in securing “that rule of equal and settled law which is the true basis of English civilisation”, but described Coke’s reasoning as based on “fallacies” and “fiction”; he then implied that historians like Freeman had been gullible in believing the fiction, that “the astuteness of lawyers has imposed upon the simplicity of historians”.

There is thus not only sarcasm but irony in Dicey’s treatment of the historical method in the first chapter of Law of the Constitution. In arguing that the legal interpretation of history is a different thing from the historical interpretation of law and in rejecting retrogressive progression in historical interpretation, Dicey advanced ideas that a newer generation of historians would come to accept as commonplace. It is not surprising, then, to find Frederic Maitland praising Dicey for his approach to legal history. Yet Dicey neglected to consider how the legal perspective on the constitution that he made such an effort to define and defend might suggest a different response to claims about constitutional continuity over time. Elsewhere in his work, and indeed elsewhere in Law of the Constitution, Dicey would take up the internal interpretive attitude of the lawyer on these questions and offer a subtler account of legality and continuity.

Dicey’s argument against ancient constitutionalism and retrogressive progression seems to have gone largely unnoticed in the vast literature on the ancient constitution. However, it was noticed by a French scholar who had a profound impact on Dicey’s work—Émile Boutmy. In the preface to his 1887 book, Le développement de la Constitution et de la société politique en Angleterre, Boutmy said that Freeman’s historical method, by seeking to understand institutional history as the restoration of a free Germanic or Saxon government, delights the imagination; however, he added, it will lead to grave mistakes if the object is to discover in the remote past the details of well-defined institutions, to understand their operation, or to show how later institutions emerged from them, and on this point Boutmy cited with approval the pages on historical method from the first chapter of Dicey’s Law of the Constitution.

III.

What do Dicey’s arguments against Freeman tell us about his views of Maine? At a basic level, Maine and Freeman shared the same understanding of the historical method. However, they started their analyses with somewhat different objectives and reached somewhat different conclusions. Freeman was an historian whose primary interest was the history of political institutions, especially in England, and lawyers were often the villains in his story. His focus is captured by his famous assertion: “history is past politics and politics are present history.” In contrast, Maine was a lawyer whose focus was law and philosophy of law based upon the history of law and society. His stated objective was to articulate a philosophy of law or “jurisprudence” on a scientific basis: the “science of jurisprudence”, he wrote, is like the physical sciences in the sense that the “primitive history of society and law” are to the “jurist” “what the primary crusts of the earth are to the geologist”—data supporting general inferences. Whereas Freeman was a legal outsider, Maine was a legal insider, taking his place with Austin as a leading figure in the field of English nineteenth-century jurisprudence. It was possible for Dicey to write dismissively about Freeman’s constitutional history in 1885, but it is not clear that, given Maine’s stature as a jurist at that time, he could have written dismissively about Maine’s historical jurisprudence even if he wanted to. But did he want to? Did Freeman serve as a kind of proxy target?

We should not overplay the differences between Maine and Freeman as jurist and historian respectively. The historical element in Maine’s work often overwhelmed the jurisprudential element. As John Stuart Mill said, Austin investigated “the philosophy of law” while Maine investigated “the philosophy of the history of law.” Conversely, Freeman’s history of political institutions had an inevitable legal aspect. Indeed, Maine saw Freeman as engaged in a parallel project to his own: they both traced usages and institutions to their ancient origins but in Freeman’s case the usages and institutions were “political [rather] than legal; or, to put it in another way, th [ose] belong[ing] to the domain of Public rather than to that of Private law.” Indeed, the parallels between their projects are hard to ignore. In 1871, Maine wrote that his inquiry may be said to belong to “Comparative Jurisprudence” if the word “comparative” is understood in the same way that it is used in “Comparative Philology” and “Comparative Mythology.” In 1873, Freeman wrote that he wanted to extend the “Comparative Method” found in “Comparative Philology” and “Comparative Mythology” to what he called “Comparative Politics”. In doing so, he said, he was following the lessons provided by, among others, “Sir Henry Maine”.

Maine and Freeman both treated comparative method as intimately connected to or perhaps the same as historical method. The historical-comparative school drew upon insights of comparative philology to build theories about the progress of societies within the same Indo-European linguistic family—or “Aryan” societies. They assumed that shared linguistic histories revealed social and political arrangements common to each Aryan society at equivalent phases of development, though not all societies progressed through all phases or progressed at the same rate. It followed that evidence of the early history of more developed Aryan nations for which historical records were limited or non-existent could be gathered from accounts of other Aryan societies for which evidence of earlier phases of development was for various reasons more complete or accessible. Said Maine, “the primitive condition of the progressive societies is best ascertained from the observable condition of those which are non-progressive”. “We take a number of contemporary facts, ideas, and customs,” he wrote, “and we infer the past form of those facts, ideas, and customs not only from historical records of that past form, but from examples of it which have not yet died out of the world”. Freeman described the comparative method as “the greatest intellectual achievement of our time” for “by comparing together the analogous customs of various, often most remote, ages and countries, the scientific inquirer is led up to the root; he is led up to the original idea of which particular customs, ceremonies, and beliefs, are but the offshoots.” Maine thought that Freeman’s assertion that the existing Landesgemeinden of Uri provided evidence of ancient Saxon assemblies in England—an assertion that Dicey said was irrelevant for understanding modern constitutional law—was a “striking” example of the historical or comparative method. Maine and Freeman also drew wide-ranging comparisons from within the written historical record: both saw the history of institutions in England in the observations of ancient Germanic tribes by Tacitus and even in the stories of Greek polities and gods in Homeric legends.

The contexts of nationalism, empire, and race helped to shape the ideas of Maine and Freeman. Freeman stated that in the “mighty drama of European and Aryan history” the “mission” had fallen to the Greek, Roman and now Teuton races “to be the rulers and the teachers of the world”. “History, in its highest and truest sense”, he insisted, “is the history of the Aryan nations of Europe, and of those who have in later times gone forth from among them to carry the arts and languages of Europe to other continents.” There was a certain insular nationalism behind Coke’s ancient immemorial constitution in the seventeenth century, yet the politics of the ancient constitution were primarily about securing the supremacy of law and parliamentary authority over the king—a battle that had been fought and won long before the nineteenth century. Freeman’s ancient constitutionalism continued the story of constitutional freedom, of course, but it also placed a stronger accent on national and cultural identities. It was also arguably coloured by assumptions about race. It is a short step from the celebration of the Teutonic and other progressive Aryan races to the assertion of racial (white) supremacy. So, for example, Freeman is cited throughout an American book that connected Anglo-Saxon liberty with Anglo-Saxon “blood” (allowing for some but not too much mixing from other European nations) and made the case for Anglo-Saxon “supremacy” and ultimately “dominion of the world”. The repulsive examples of anti-Semitism and racism in his private correspondence—flowing from, in his own words, his “Aryan pride” and “Aryan prejudices”—suggest that Freeman may have sympathized with some of these sentiments.

Was there something inherently and darkly nationalist or even racist in the comparative method? Maine insisted that, “happily, it is a distinct property of the Comparative Method of investigation to abate national prejudices”, though he added that the discoveries it prompted into the “common Aryan parentage” of English and Hindu societies had improved British rule over India and had confirmed that the “lewd” customs of Celtic Ireland were not attributable to any “native faults of Irish character”—that, in other words, certain Aryans had progressed in civilization farther and faster than others and were in a position if not to compel then at least to guide others in their own progress. In the end, it may be said, however, that although both Maine and Freeman shared a common commitment to the historical-comparative method, and both appeared influenced (at least in general ways) by the Germanic school of historical jurisprudence developed by the likes of Savigny, Freeman appeared to be drawn toward, whereas Maine resisted, the “ultra-nationalistic version” of the historical method found in the work of Savigny.

Maine and Freeman’s views on historical and comparative method developed in tandem; there is an explicit trading of ideas as their work progresses. However, if we step back from the trees and consider the forest some differences between their views appear. As set forth in Ancient Law, Maine’s historical jurisprudence advanced a theory of law and societal progress: the despotic rule of the paterfamilias in ancient tribal communities shifts to the emergence of customary laws and then codes in early political societies, and then legal change is secured through legal fictions and equity as societies further develop, to the point where legal reform is through legislation in the modern state. Maine insisted that if we are to understand the law today, we need to understand how it was different in earlier phases of this progression.

This seems at first glance to be different from what Dicey called the method of retrogressive progression that saw the story of constitutional history as a backwards one in which an ancient Teutonic tribal constitution was gradually recovered. In Maine’s work, the “primitive tribal society of the Aryan race”, whether found in Brehon law in Ireland or Hindu law in India, was formed from kinship or family units and these laws were “mixed up with discussions on cosmology and logic”. On Maine’s view, it does not seem that anything like modern conceptions of law, state, government, individual, liberty, or equality could have existed until the Aryan society in question made the basic transition “from Status to Contract.” In apparent contrast, Freeman claimed for “political institutions” in England an “unbroken descent from the primitive Teutonic stock”; that despite differences between “our present constitution” and the “rude traditions and customs of [our forefathers]” there was “no break between them: all is growth within the same body”. The story of progress for Maine was one of change as societies progressed, but for Freeman it was one of continuity and even of recovery from earlier times.

Yet, even so, Maine wrote favourably of Freeman’s approach to constitutional history. Maine said that he had focused in his own work on “the history of private institutions”, but, he added: “If I were to apply the historical method and insights drawn from ancient Brehon law to political history, I should be only repeating much of what has been said by Mr. Freeman in his excellent work on ‘Comparative Politics’”. Echoing Freeman, Maine wrote that “the beginnings of that representative system which has done so much to continue the English form of Teutonic liberty in life” can be perceived “[f] rom very early times [in] the English Hundred and Shire Courts”. At times, the influence of Freeman on Maine on constitutional development went unacknowledged. In 1873, Freeman wrote: “Ekklêsia of Athens, the Comitia of Rome, and the Parliament of England, are all offshoots from one common stock”. In 1875, Maine wrote: “[w] herever the primitive condition of an Aryan race reveals itself” the elementary organ, the village council, is always discernible, and “[f] rom this embryo have sprung all the most famous legislatures of the world, the Athenian Ekklesia, the Roman Comitia, Senate and Prince, and our own Parliament”. The similarities in wording is striking. Yet there are also differences in terms of detail. Whereas Freeman saw evidence of democracy in the Landesgemeinden of Uri, Maine’s work on village councils often revealed custom-bound even despotic bodies with little resemblance to modern democratic legislatures. Fundamental change separated the embryo of the village council from the fully grown legislature.

In his 1885 book Popular Government, Maine explained that Ancient Law had been an attempt to apply the “Historical Method” to the study of “private laws and institutions”. “It has always been my desire and hope”, he continued, “to apply the Historical Method to the political institutions of men”. However, the possibility that the result of such an analysis would have shown the evolution of political institutions as tracking the same societal phases that shaped the development of private law, a result that would presumably have differed from the “retrogressive progression” theory of the ancient constitution developed by Freeman and rejected by Dicey, seems to be contradicted by Maine later in the book. After the fall of the Roman Republic, he wrote, there followed seventeen centuries during which there was an all but universal movement towards absolute kingship; although the invading “barbarian races”—the Germanic or Teutonic tribes—brought with them “some amount of the [ir] ancient tribal liberty”, and this “seemed for a while likely to prove the seed of political freedom”, with one exception it did not. The one exception was, of course, England:

In our own country, the popular government, born of tribal freedom, revived sooner than elsewhere; protected by the insularity of its home, it managed to live; and thus the British Constitution became the one important exception to the ‘tendency of the ages,’ towards absolute kingship, and through its remote influence this tendency was reversed, and the movement to Democracy began again.

What would Dicey have said about these various passages from Maine? As we have seen, Dicey did not reject the possibility that sound historical analysis might involve tracing the “germs” of the constitution through time in order to reveal connections between past and present constitutions, though this history would likely be irrelevant for understanding existing constitutional law. Are Maine’s references to the constitutional “seed” or “embryo” provided by ancient Teutonic tribes for the modern constitution simply that? Or did Maine follow Freeman and engage in what Dicey called the flawed historical method of “retrogressive progress”?

I think Dicey would have imposed the same verdict on Maine as he did on Freeman: Maine found modern constitutional freedom in an idealized tribal past that was recaptured, in his words, when the tide of history, the tendency of the ages, was reversed. It may be argued, then, that in rejecting Freeman in the first chapter of Law of the Constitution, Dicey was also, in effect, whether he knew it or not, rejecting Maine.

However, I do not wish to push this argument too far. Dicey’s statement in Law of the Constitution, that it would be heresy to deny the universal validity of the historical method, leaves his position on both the historical method and Maine ambiguous. Even if he rejected Freeman’s and by implication Maine’s application of the historical method to the constitution as retrogressive, it does not necessarily follow that he rejected the method itself—especially when its application to jurisprudence is considered.

IV.

The discussion so far suggests that the term “historical method” had acquired a specific meaning by the time Dicey wrote Law of the Constitution. It was not just any method that an historian adopted when doing history. In the hands of scholars like Maine and Freeman, it was a method for understanding the practices or institutions of a society within certain phases of their social progress by comparing them with analogous practices or institutions in other phases of its social progress or analogous practices or institutions in other societies in the equivalent phases of their social progress. The historical method was a form of comparative method.

The historical-comparative method was an obvious way of doing history, but it was also thought to be a method for pursuing other branches of human inquiry. Maine’s work provides a case in point. In Early History of Institutions, he wrote: “next to a new history of law, what we most require is a new philosophy of law”. He (rightly) concluded that legal history and legal philosophy are different kinds of inquiry. But he also thought that the “historical method” was a method that could be adopted in the “history of law” or in the “philosophy of law”. John Stuart Mill may have been right to say that Maine was engaged in “the philosophy of the history of law”, that did not seem to be Maine’s principal objective. Maine had lots to say about the history of legal ideas. But his primary objective was not to write a philosophy of legal history, but to use the historical method to understand better the nature of law—to contribute to “a new philosophy of law”, a new “science of jurisprudence”. In his view, the historical method could be employed by the historian of law interested in understanding history, but it could also be employed by the philosopher of law interested in answering the classic questions of legal philosophy about the general idea of law.

Maine thought that the intellectual task of exploring the history of law is different from the intellectual task of theorizing about the philosophy of law, and he would have agreed with Dicey that the intellectual task of exploring the history of law is different from the intellectual task of expounding or interpreting the law as an existing normative order. Yet, of course, as an advocate of the historical method, Maine would also have said that just as the philosopher of law can use the historical method so can the expounder of substantive law. On this point, I think Dicey agreed. Dicey’s decision to explore the constitution from a legal not historical perspective—his decision to expound the law of the constitution not the history of the law of the constitution—did not mean that he rejected either the relevance of history generally for his task or that he rejected the historical method specifically. Maine himself provided the example of someone who adopted a juridical rather than historical objective yet adopted the historical method to pursue that (non-historical) objective.

Dicey appears to have appreciated this aspect of Maine’s work. He seemed to see Maine’s historical jurisprudence as the pursuit of legal rather than historical analysis. For example, Dicey wrote of Maine that he, together with Austin, had “revive [d] in England the study of jurisprudence”; he rivalled Blackstone in the art of “dealing with law” and following his example “lawyers attempted again to write in the spirit of men of letters”; he “opened a new train of ideas to the English world” that challenged the established view of law “either as a branch of technical training, or, by the school who followed in the steps of Bentham or Austin, as a portion of applied logic.” Dicey saw Maine as a jurist and his method as part of a juridical science.

The place of the historical method within academic or intellectual inquiry was, however, contested at this time, at least when it was applied beyond the discipline of history. There was a valid concern about how a method that focused upon historical progress of practices or institutions by comparing different phases of societal development amongst different societies could provide the sole or principal frame for inquiry into fields like ethics, morality, politics, and perhaps jurisprudence, that were essentially normative in their character. In 1886, Henry Sidgwick raised the concern that the “Historical Method” had “invaded and transformed all departments of thought” and its advocates were insisting that the method served to identify not just the steps or phases by which beliefs developed but the “criteria of the truth or falsehood of current beliefs”—which he insisted was impossible. Sidgwick was the last person to think that the facts of past practice or ideas were irrelevant to moral reasoning; but he insisted that facts can only gain moral relevance through their integration within an interpretive process of critical reflection grounded in moral value. One cannot (as Hume said) derive an ought from an is.

Dicey had in 1877 already identified this problem with the historical method when pursued as “the idol of contemporary thinkers”, illustrating the point by referring to the campaigners against the slave trade (who included his grandfather and uncle) who he thought had rightly focused on the injustice of slavery without being distracted by its long institutional history in different phases of social development. Dicey thought the historical method could be useful but never determinative in relation to questions involving normative evaluation: “The historical method is, after all, to us not more than syllogism was to Aristotle, or than induction was to Bacon. Yet neither the deductive nor the inductive method has revealed all the secrets of the universe, and blind devotion either to the one or to the other has not been found conducive to the ascertainment of truth.” Dicey did not mention Maine in this article, but his writing at the time suggests that he saw the value of Maine’s historical jurisprudence if integrated within a broader legal framework with Austin’s analytical jurisprudence. Dicey thought Oliver Wendell Holmes’ book, The Common Law, was “the most original work of legal speculation which has appeared in English since the publication of Sir Henry Maine’s Ancient Law” in part because Holmes combined both Austin’s analytical and Maine’s historical methods. The historical method could never answer normative questions about law or the philosophy of law on its own; but it might supplement or complement other juridical methods. (Of course, Austin’s legal positivism eschewed normative evaluation as well, so it too needed to be integrated within a larger interpretative theory of law to make full sense—but I leave this point for another day.)

Although Dicey appeared to accept a reconciliation of different jurisprudential viewpoints, grasping the full nature of his position is complicated by the way in which he linked the historical method to questions of race and nationalism in his later work. In 1875, Dicey had raised a worry that Maine, by focusing on similarities between “Aryan sub-races”, accentuated differences between Aryans and other racial groups. He reminded his readers, if they needed reminding, that “ [n] on-Aryan races are after all human beings”, but otherwise avoided direct confrontation with Maine on the point of race on this occasion. However, in his 1905 book, Law and Public Opinion, Dicey did not hold back. The respect for the individual demanded by liberalism, Dicey wrote, “rests upon a strong and even an excessive appreciation of the characteristics which are common to all men”, but the historical method, especially when carried back to “the earliest stages of civilisation”, brings into prominence and exaggerates “the dissimilarities between different classes and especially between different races of mankind, and thus tends, not indeed to remove the reasonable grounds for securing to all men, as far as may be possible, an equality of rights, but to quench the confident enthusiasm necessary for the carrying out even the most well approved and the most beneficial among democratic innovations.” Returning again to the abolition of slavery, Dicey argued that the cause depended upon accepting “the essential similarity and equality of all human beings whether blacks or whites”. In making the point about how the historical method discouraged reforms aimed at racial equality, Dicey brought Maine into the discussion, stating, rather cryptically: “It is no mere accident that Maine, who in his Ancient Law undermined the authority of analytical jurisprudence, aimed in his Popular Government a blow at the foundations of Benthamite faith in democracy.” Dicey then linked the historical method with irrational and dangerous forms of populist nationalism: “a narrow spirit of nationalism, fostered […] by historical traditions” often produces “racial divisions and animosities”, an “evil” contrary to the “rational” reform of laws and institutions. Of course, like Maine and Freeman (and other Victorian historians and jurists), Dicey held views on empire and race now regarded as offensive. However, Dicey’s views on race were substantially different from those of Freeman and his liberalism produced responses to questions on race and equality that were sometimes forward-looking for the time—and these ideas did not sit comfortably within a theory of social evolution that placed its focus on the progressive or Teutonic Aryan races.

V.

Despite his harsh criticism of the historical method in Law and Public Opinion, Dicey never rejected the historical or the comparative method as a supplement to legal analysis—a point confirmed in his unpublished work on comparative constitutionalism. In a 1894 public lecture that was to have become the introductory chapter to an unfinished book on the topic, Dicey insisted that the commentator on constitutional law must use the “analytical method”; but, he added, the analytical method required for its “completeness” the “subordinate aid” of the “historical method” and the “comparative method.” Dicey then, perhaps surprisingly, acknowledged authors like “Hallam, Stubbs, Freeman, or Gneist” who had “traced out” the growth of English institutions “from their earliest origin down to modern times”: their “high repute” made it almost unnecessary to dwell on the merits of the historical treatment of the constitution.

In another draft chapter of his unfinished book on comparative constitutionalism, Dicey concluded that because the English constitution is an “historic” constitution defined by the qualities of antiquity, continuity, spontaneity, and originality, it was often necessary for the constitutional historian to inquire into the “earliest known stage” in the history of the English people; although “Montesquieu’s dogma” that a more-or-less complete version of the English constitution had been “invented in the forests of Germany” was absurd, the “primitive conceptions of our German and barbarous ancestors contain[ed] the germs from which were developed the elaborate fabric of English constitutionalism.” In various places in his draft manuscripts, the old Saxon Witenagemót returns—but this time Dicey conceded that examining its link to Parliament may be useful in showing that “unbroken continuity” is a defining feature of the English constitution.

Dicey’s approach to legal and historical analyses in these draft chapters appears strikingly different from Law of the Constitution. Had the substance of his opinions changed? As we saw, Dicey had all along been prepared to accept that historians might trace the “germs” of the constitution back to ancient times; he conceded that this might be a valid historical exercise so long as the error of retrogressive progression was avoided and subject to the caveat that remote histories about origins would likely be irrelevant for understanding present-day constitutional law. In his incomplete book on comparative constitutionalism, however, he appeared, in places at least, to accept that an understanding of remote history might well be relevant to the task of understanding the essential features or characteristics of today’s British constitution, in particular the importance of continuity and continuous development as a distinctive constitutional characteristic not shared by other constitutions. There appeared to have been a shift in his thinking.

In other places, however, his scepticism about remote constitutional history remained. Despite his reference to the “germs” to be found in the German “woods”, Dicey remained doubtful of the value of ancient constitutionalism of the kind that Freeman and perhaps Maine advanced, at least for legal analyses.

He asked the question directly: are there lessons for today to be derived from “ancient constitutionalism” as authors like “Arnold, Freeman, [and] Maine” argue there are? After a comparison of ancient and modern societies, Dicey’s answer was—no. This answer tracks observations he had made before. In Law of the Constitution, he argued that to ask how ancient Saxon earldormen would have understood constitutional questions today would be to enter upon an inquiry which involved “an untenable assumption”: it would be like asking “what a Cherokee Indian would have thought of the claim of George the Third to separate taxation from representation.” Putting aside the offensive language Dicey then used to describe North American Indigenous and European tribal societies, he proceeded to make a point that is central to the theory of ancient law advanced by Maine (but perhaps not by Freeman), namely, that ancient tribal societies in Europe and elsewhere were societies governed by status not contract that held conceptions of law and liberty fundamentally different from those adopted in non-tribal societies. In his later work on comparative constitutionalism, Dicey was, in effect, applying these ideas: given the differences between ancient tribal communities and city-states on the one hand and modern nation states on the other, it would be a “delusion” to think that the “constitutionalist”, the expounder of present-day constitutional law, could derive any direct value from the study of ancient constitutionalism. His notes leave many loose ends and how this conclusion fits with his point about constitutional germs in the German woods is one of them.

Because his work in comparative constitutionalism remained incomplete, it is difficult to draw firm conclusions on many of the promising and/or troubling lines of thought Dicey was following. However, there is some evidence to suggest that Dicey had turned his mind to the problem of legality and continuity noted above. In Law of the Constitution, Dicey assumed that retrogressive progression makes for bad history, but despite adopting a legal rather than historical perspective on the constitution he did not explain how or why it makes for bad law. Indeed, at times he seemed to imply that retrogressive progression, as manifested in “fictions” about “precedents”, had been useful, even essential, for securing the rule of law—that common law arguments about continuity might be good law. In his later work on comparative constitutionalism, Dicey continued to express the concern that history might be “obscured” when the “fictitious appeal to precedent” fosters the belief that the establishment of new rights “was the recovery of old rights.” Yet he was also far more open to considering the matter from the internal legal perspective. He accepted that there were revolutionary breaks and new constitutional settlements at key moments in English constitutional history; however, he treated with respect the viewpoint of participants, especially lawyers but also parliamentarians and other political actors, and he accepted that their arguments based on the continuity of fundamental laws were remarkably powerful.

Even the Glorious Revolution in 1688 was not “knowingly” a revolution; rather it was, for the successful Whigs, in “their own minds”, a “return to those fundamental laws of the lawful monarchy”. Dicey accepted that this internal legal perspective defined the essential character of the constitution: “The English constitution is much more than ancient, it is the result of development or growth which has never been interrupted. This is what we mean by continuity.” Dicey now saw value in the distinctive national trait of perceiving revolutions as restorations. “A restoration in the strict sense of that word,” he wrote, “is an effort to relink the present with the past”, and is “natural to a people who like the people of England … are imbued with legalism & who import into their political arrangements that love of precedent & acquiescence in fictions which is proper to the law courts”, but it is “utterly unnatural to people like the French who are much more influenced by logical than by legal conceptions”. In his view, the conception of the English constitution depended on “the existence among a people of a legal turn of mind & a love for forms & precedents”, a disposition that might from its “bad side” be called “formalism” but from its “good side” may be described as “a rational dislike to break with the past.” Retrogressive progression may make for bad history, but it may be central to the lawyer’s understanding the law of the constitution—at least within the common law constitutional tradition.

Dicey valued what Pocock would later call “the common law mind”, the unconscious habit of mind or mentalité that seeks to explain political change through an interpretive lens that celebrates an organic, dynamic sense of precedent and continuity. Dicey is often thought to have rejected Maine and the historical approach to the constitution. The ironic reality is that Dicey’s insistence upon historical realism sometimes got in the way of the legal perspective on the constitution to which he was so committed. How can we reconcile his common law constitutionalism with his scepticism about ancient constitutionalism? Developing a full answer to this question lies beyond the scope of this essay. However, the ingredients for an answer lie in Dicey’s insistence upon viewing the constitution in a legal rather than an historical light. To say, like Coke, that the common law constitution is in a legal sense immemorial, or legally without beginning, only makes sense if we are prepared to leave the realm of historical or empirical fact and enter into an interpretive dimension of a different and distinctive kind. We need to adopt, in other words, what Dicey called a legal turn of mind. Dicey’s work may not articulate a full theory of this dimension of legality, but it offers some important points of reference that might structure the task of building such a theory.

Mark D. Walters

Mark D. Walters is Professor of Law at Queen’s University in Kingston, Ontario, Canada. Professor Walters researches and publishes in the areas of public and constitutional law, legal history, and legal theory, with a special emphasis on the rights of Indigenous peoples, institutional structures, and the history of legal ideas.