On Humean sovereignty; Dicey, Hayek, Foucault, Schmitt, and (darn) Trump
A.V. Dicey's life (1835-1922) and work is known almost exclusively for the 'rule of law.' I have some amusing, reductive evidence for this claim: the one and only annotation by Foucault on Dicey is the definition of the rule of law (see here). Presumably the annotation was prompted by Foucault's reading and use of Hayek's Constitution of Liberty, where Dicey's Law of the Constitution is treated as a classic (as the editors of Foucault's Biopolitics lectures note in their endnotes 23-25 on p. 282 in the English translation). One of the best essays on Dicey's significance on thinking about the rule of law to political theory, "Dicey and his Legacy" (Political Theory, 1995) by Julia Stapleton, explores its impact on especially what she calls English liberal-conservative thought.
But it is not impossible that Foucault also read Dicey's Lectures on the Relation between Law and Public Opinion for the very passage in his lecture that elicited the editors' comment is this: "the Rule of law is clearly defined as a state in which the state itself does not organize administrative courts which arbitrate between citizens and the public authorities; the Rule of law is a state in which citizens can appeal to ordinary justice against the public authorities. The English say: If there are administrative courts, then we are not living under the Rule of law." (p. 170, 21 February 1979). This echoes the introduction to the second edition of Lectures on the Relation between Law and Public Opinion (hereafter LRLPO):
But administrative law has two defects which have till very recent years forbidden its existence in England. Administrative tribunals always tend to exclude the jurisdiction of the ordinary law Courts. Administrative Courts are always more or less connected with the Government of the day. Their decisions are apt to be influenced by political considerations. Governmental officials cannot have the thorough independence of judges....An administrative Court is never a completely independent tribunal. (p. 373 in the Libertyfund edition)
Anyway, as I have noted before (recall; here), Dicey's LRLPO (sorry) had a significant impact on mid-twentieth century neo-Liberal thought (including Lippmann, Milton Friedman, and Hayek (see also this paper by Nathanaël Colin-Jaeger).* But to the best of my knowledge there has been no real attempt to explore LRPLO's political theory in light of some of their theoretical concerns, and the viability of liberalism.
At the very start (pp. 4-5) of LRLPO, while drawing on the opening lines of Hume's "Of the First Principles of Government," Dicey notes that "Hume’s doctrine holds good, and the opinion of the governed is the real foundation of all government." (This Humean stance has been explored in my own scholarship, and also in book-length works by Andy Sabl and Paul Sagar.) Dicey then turns this into a Humean theory of sovereignty that is, as it were, neutral among constitutional forms:
This conclusion, however, though roughly true, cannot be accepted without considerable reservation. The sovereign power may hold that a certain kind of legislation is in itself expedient, but may at the same time be unwilling, or even unable, to carry this conviction into effect, and this from the dread of offending the feelings of subjects who, though they in general take no active share in public affairs, may raise an insuperable opposition to laws which disturb their habits or shock their moral sentiment; it is well indeed, thus early in these lectures, to note that the public opinion which finds expression in legislation is a very complex phenomenon, and often takes the form of a compromise resulting from a conflict between the ideas of the government and the feelings or habits of the governed. This holds good in all countries, whatever be their form of government,--Albert Venn Dicey Lectures on the Relation between Law and Public Opinion, p. 10 (libertyfund edition)
So, if I understand Dicey correctly, sovereignty is constituted by the effectual public opinion that governs the country (which we might call 'conventional wisdom') but this opinion is self-limited by considerations of practical wisdom or prudence. I set aside the non-trivial challenges in measuring effectual public opinion in ways that would meet contemporary standards of rigor in political science. Dicey's lectures are a game attempt at exhibiting its existence, but does often flirt with the 'post hoc ergo propter hoc' fallacy.+
Now, as is well known, in the preface to the (1934) second edition of Political Theology, Schmitt presented his account of sovereignty as a polemic with 'liberal normativism and its kind of "constitutional state.' And certain radical-chic scholars with contempt for liberalism have been all too willing to echo Schmitt's three-fold typology: among (i) "the pure normativist [who] thinks in terms of impersonal rules, and [(ii)] the decisionist [who] implements the good law of the correctly recognized political situation by means of a personal decision, and [iii)] institutional legal thinking unfolds in institutions and organizations that transcend the personal sphere" and then associate liberalism exclusively with the proceduralist-normativist (by taking Rawlsian intellectual hegemony as a kind of natural outgrowth of liberalism or the only liberalism left standing).
Now, I would argue that Dicey's Humean approach to sovereignty formally anticipates the Schmittian decisionist, but without Schmitt's focus on the decisive individual leader (or Führerprinzip) because, to put it classically, Dicey's approach also allows for complex, collective forms of (aristocratic and democratic) leadership. So, to put this as a serious joke: Schmitt's approach is a subset of Dicey's analytically purer approach.
In fact, from a liberal perspective, Dicey anticipates the main problem in Schmitt's analysis of sovereignty, the absence of accountability (a word and its cognates wholly absent in Schmitt's Political Theology and Dicey's LRLPO). By contrast, Hume would also emphasize the role of accountability (recall this post inspired by Lazar's States of Emergency in Liberal Democracies; and this earlier post). [I don't mean to suggest Dicey ignores accountability of government officials.]
Now, it's important that in LRLPO, Dicey recognizes that the actions of the sovereign can be balanced and frustrated by the "checks imposed on such opinion by the existence of counter-currents and cross-currents of opinion." Elsewhere in his theorizing Dicey explored other, institutional checks (like referenda) on sovereignty (especially that effected by parliament).* But without mechanisms of accountability (be it symbolic, formal, political, or juridical) Dicey's Humeanism slides into illiberalism. For, it is not sufficient that there are checks and balances or fractured sovereignty even when the form of the law is obeyed; accountability is required from a liberal perspective. Interestingly enough (in light of efforts to claim that Hayek, who is very influenced by Dicey, is a neo-Schmittian), Hayek does emphasize the significance of accountability to the rule of law by quoting this passage in “Declaration of Parliament Assembled at Westminster” approvingly: “There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for mal-administration." (chapter on the Origins of the rule of law" Constitution of Liberty, p. 251 in Volume XVII of the Collected Works. n.)
These digressions are all very theoretical, I recognize. And perhaps it would help if we put it in more concrete form if we think of a concrete example: then President Donald Trump's attempted usurpation (starting, roughly, with the phone call to Brad Raffensperger, the Georgia Secretary of State, and culminating in the events of Jan 6, 2021). His actions generated a hasty (second) impeachment on january 13, 2021, by a 232–197 vote. There is no doubt that this impeachment had the support of conventional wisdom. But it lacked sufficient votes in the Senate for conviction, primarily, I think, because too many Republican Senators feared the governed, especially their own primary voters' wrath. (Of the seven Republicans who voted to convict only one had to face her voters within two years.)
The dangerously slow investigation of and legal procedures against Trump's efforts to overturn the Georgia results have undermined accountability and, thereby, help undermine the constitutional order (and risks shifting toward forms of plebescite despotism). I would be amazed if the delay isn't caused by a general unease felt by prosecutors over the prosecution of a vindictive politician who could return to power and whose supporters are feared. (The perceived odds of his winning again are better than the perceived odds ahead of his first primary run.)
Unfortunately, the conventional wisdom already reflects this shift to some degree by its tendency to deplore the fact that Trump is being prosecuted for mere hush money payments (in a different jurisdiction) without a willingness to urge on prosecution for actions surrounding his attempted usurpation. Noticeably, and in striking contrast, in living memory the French were willing to prosecute (and covinct) former President Sarkozy thereby also derailing any attemp at re-election.
Now, in closing, before you accuse me of Trump derangement syndrome, I don't mean to suggest that lack of accountability is unique to our era or Trump among US presidents. As I have noted in my blogging (recall here; here), since, say, 1940, plenty of US Presidents have committed egregious war crimes (or worse) abroad, including internment of innocent US citizens and assassination of US Citizens on foreign soil, without (symbolic, legal, political, etc.) accountability. To what degree this gap in American political practice reflects a tacit approval of the American people I leave to the reader.
*I don't mean to suggest that LRLPO exhausts Dicey's political theorizing. I warmly recommend Mads Qvortrup's "AV Dicey: the referendum as the people's veto." History of Political Thought 20.3 (1999): 531-546.
+If you are a very strict Humean or Spinozist it's not obvious it is a fallacy.