Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow LECTURE IV: The Three Main Currents of Public Opinion - Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)

Return to Title Page for Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)

Search this Title:

LECTURE IV: The Three Main Currents of Public Opinion - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


LECTURE IV

The Three Main Currents of Public Opinion

the nineteenth century falls into three periods, during each of which a different current or stream of opinion was predominant, and in the main governed the development of the law of England.

I.

The Period of Old Toryism or Legislative Quiescence (1800–1830)1

This was the era of Blackstonian optimism reinforced, as the century went on, by Eldonian toryism or reaction; it may be termed the period of legislative quiescence, or (in the language of censors) stagnation. Political or legislative changes were first checked by that pride in the English constitution, and intense satisfaction with things as they were, which was inherited from a preceding generation, and is best represented by the studied optimism of Blackstone; they were next arrested by that reaction against Jacobinism and revolutionary violence which is represented by the legislative timidity of Lord Eldon; he devoted his great intellectual powers (which hardly receive justice from modern critics) at once to the cautious elaboration of the doctrines of equity, and to the obstruction of every other change or improvement in the law. The reactionary character of this period increased rather than diminished as the century advanced. The toryism of 1815 or 1817 was less intelligent and more violent than the toryism of 1800. Laws2 passed during this period, and especially during the latter part thereof, assumed a deliberately reactionary form, and were aimed at the suppression of sedition, of Jacobinism, of agitation, or of reform. But though it is easy to find examples of reactionary legislation, the true characteristic of the time was the prevalence of quiescence or stagnation. Optimism had at least as much to do with the condition of public sentiment as had the dread of revolutionary propagandism.

II.

The Period of Benthamism or Individualism (1825–1870)3

This was the era of utilitarian reform. Legislation was governed by the body of opinion, popularly, and on the whole rightly, connected with the name of Bentham.4 The movement of which he, if not the creator, was certainly the prophet, was above all things a movement for the reform of the law. Hence it has affected, though in very different degrees, every part of the law of England. It has stimulated the constant activity of Parliament, it has swept away restraints on individual energy, and has exhibited a deliberate hostility to every historical anomaly or survival, which appeared to involve practical inconvenience, or in any way to place a check on individual freedom.

III.

Period of Collectivism (1865–1900)5

By collectivism is here meant the school of opinion often termed (and generally by more or less hostile critics) socialism, which favours the intervention of the State, even at some sacrifice of individual freedom, for the purpose of conferring benefit upon the mass of the people. This current of opinion cannot, in England at any rate, be connected with the name of any one man, or even with the name of any one definite school. It has increased in force and volume during the last half of the nineteenth century, nor does observation justify the expectation that in the sphere of legislation, or elsewhere, its strength is spent or its influence on the wane. The practical tendencies of this movement of opinion in England are best exemplified in our labour laws, and by a large amount of legislation which, though it cannot be easily brought under one head, is, speaking broadly, intended to regulate the conduct of trade and business in the interest of the working classes, and, as collectivists believe, for the benefit of the nation.

Our study of each of these currents of opinion in its bearing on legislation will be facilitated by attention to certain general observations.

First. Each of these three schools of thought has, if we look at the nineteenth century alone, reigned for about an equal number of years.

This statement, however, needs qualification if we take into account the years which preceded the commencement, and the years, few as they are, which have followed the end of the nineteenth century. We then perceive that while the unquestioned supremacy of Benthamism lasted for a more or less assignable and limited time—that is to say, for the thirty-five or possibly forty years which begin with 1828 or 1830—it is impossible to fix with anything like equal precision the limit either of the period of quiescence or of the period of collectivism. The intimate connection between the name of Blackstone and the optimism which was one main cause of legislative inaction, suggests that the period of quiescence must be carried back to a date earlier than the end of the eighteenth century, and that it may possibly at any rate be forced back to the accession of George the Third (1760), if not even to an earlier time. On this way of looking at the matter the age of legal quiescence covers some seventy years (1760–1830).

There is no possibility of fixing with any precision the limits to the period of collectivism. Socialistic ideas were, it is submitted, in no way a part of dominant legislative opinion earlier than 1865,6 and their influence on legislation did not become perceptible till some years later, say till 1868 or 1870, or dominant till say 1880. This influence is still, however, not apparently on the decline, and may well, for years to come, leave its impress on the statute-book. The very dates assigned to each of our three periods bear witness to the fact that periods of belief run into one another and overlap. It is absolutely impossible to fix with precision the date at which a body of opinion begins to exert perceptible influence or even to become predominant.

Secondly. The relation to legislation of each of the three currents of opinion is markedly different.

The legislative inertia which, at the beginning of the nineteenth century, discouraged changes in the law was no theory of legislation. It was a sentiment of conservatism which, whether due to optimism or to hatred of revolution, opposed innovation in every province of national life.

Benthamism was a definite body of doctrine directly applied to the reform of the law. It was a legal creed created by a legal philosopher. Hence its direct and immense influence upon the development of English law.

Collectivism has been, during the nineteenth century, rather a sentiment than a doctrine, and in so far as it might be identified with socialism has been rather an economical and a social than a legal creed.

Thirdly. The examination into the character and the influence of collectivism presents certain peculiar difficulties which do not meet us when studying either the old toryism of Blackstone or Eldon, or the Benthamite individualism which, in accordance with popular phraseology, may often be conveniently called liberalism.

The general characteristics of the age of toryism are well-ascertained historical facts which have become the object of common knowledge. Benthamism is a definite creed. Its formulas are easily discoverable in the works of Bentham and his disciples; its practical results are visible in one statute after another. Collectivism, on the other hand, is even now rather a sentiment than a doctrine; hence it is a term which hardly admits of precise definition, and collectivism, in so far as it may be considered a doctrine, has never, in England at least, been formulated by any thinker endowed with anything like the commanding ability or authority of Bentham; its dogmas have not been reduced to the articles of a political or a social creed, still less have they been applied even speculatively to the field of law with the clearness and thoroughness with which Bentham and his followers marked out the application of utilitarianism to the amendment of the law. Hence a curious contrast between the mode in which an inquirer must deal with the legislative influence on the one hand of Benthamism, and on the other hand of collectivism. He can explain changes in English law by referring them to definite and known tenets or ideas of Benthamite liberalism; he can, on the other hand, prove the existence of collectivist ideas in the main only by showing the socialistic character or tendencies of certain parliamentary enactments.

The difficulties of the investigation, moreover, are increased by a peculiarity of the mode in which the ideas of collectivism have gradually entered into or coloured English legislation. The peculiarity is this: a line of Acts begun under the influence of Benthamite ideas has often, under an almost unconscious change in legislative opinion, at last taken a turn in the direction of socialism. A salient example7 of this phenomenon is exhibited by the effort lasting over many years to amend the law with regard to an employer’s liability for damage done to his workmen in the course of their employment. Up to 1896 reformers, acting under the inspiration of Benthamite ideas, directed their efforts wholly towards giving workmen the same right to compensation by their employer for damage inflicted through the negligence of one of his workmen as is possessed by a stranger. This endeavour was never completely successful; but in 1897 it led up to and ended in the thoroughly collectivist legislation embodied in the Workmen’s Compensation Acts, 1897 and 1900,8 which (to put the matter broadly) makes an employer the insurer of his workmen against any damage incurred in the course of their employment.

The difference in the spirit of the three great currents of opinion may be thus summarised: Blackstonian toryism was the historical reminiscence of paternal government; Benthamism is a doctrine of law reform; collectivism is a hope of social regeneration. Vague and inaccurate as this sort of summary must necessarily be, it explains how it happened that individualism under the guidance of Bentham affected, as did no other body of opinion, the development of English law.

[1. ]See R. K. Wilson, Modern English Law, chap. iii., and Lect. V., post.

It is for our present purpose convenient to treat 1800, in accordance with popular phraseology, as belonging to the nineteenth century.

[2. ]E.g. the great Combination Act, 1800, 40 Geo. III. c. 106; the Act of 1817, 57 Geo. III. c. 19, for the prevention of seditious meetings.

[3. ]See Lecture VI., post.

[4. ]In the whole field of economics Adam Smith and his disciples exerted a potent influence, but it is not necessary for our purpose to distinguish between the influence of jurists and the influence of economists: they both represented the individualism of the time.

[5. ]See Lects. VII.–IX., post. Murray’s Dictionary gives no authority for the use of the word collectivism earlier than 1880. It is there defined as “the socialistic theory of the collective ownership or control of all the means of production, and especially of the land, by the whole community or State, i.e. the people collectively, for the benefit of the people as a whole.” H. Sidgwick, in his Elements of Politics (2nd ed.), p. 158, uses the word to denote an extreme form of socialism. These are not exactly the meanings given to collectivism in these lectures. It is used as a convenient antithesis to individualism in the field of legislation. This use appears to be etymologically correct, and to be justified by the novelty and vagueness of the term. The very indefiniteness of the expression collectivism is for my purpose a recommendation. A person may in some respects be a collectivist—that is to say, entertain views which are not in harmony with the ideas of individualism—and yet not uphold or entertain any general belief which could fairly be called socialism; but though the vague term collectivism is for my present purpose preferable to socialism, I shall on occasion use the more popular and current expression socialism as equivalent to collectivism.

[6. ]An early example of such influence may be found in the Metropolitan Commons Act, 1866. It reversed that policy of breaking up commons which met with the enthusiastic approval of Bentham. See Bentham, Works, i. p. 342.

[7. ]See Lect. VIII., post.

[8. ]Workmen’s Compensation Act, 1897, 60 & 61 Vict. c. 37; 1900, 63 & 64 Vict. c. 22. [Editor’s note: This footnote was added in the second edition.]