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Accountability in the Contemporary Constitution$
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Nicholas Bamforth and Peter Leyland

Print publication date: 2013

Print ISBN-13: 9780199670024

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199670024.001.0001

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The Spirits of the Constitution

The Spirits of the Constitution

Chapter:
(p.27) 2 The Spirits of the Constitution
Source:
Accountability in the Contemporary Constitution
Author(s):

J W F Allison

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199670024.003.0002

This chapter addresses the dichotomy between legal and political accountability in the English context by suggesting a transformation of Dicey's legal view of the constitution, and thus also of the polemical political view it provoked. In his comparative constitutional lectures, Dicey adapted Montesquieu's ‘Spirit of the Laws’ to speak of a constitution's spirit, attributing a legal spirit to the English constitution. He contrasted that with the civil administrative spirit of French constitutionalism and the military spirit of Prussian constitutionalism. This chapter inverts the contrast by suggesting how the constitution and its legal spirit developed, in European interaction, through the proliferation of administrative tribunals, the evolution of administrative law around the prerogative writs, political constitutionalism, and the judicial response to extraordinary necessities in wartime cases. The outcome, it concludes, has been a trichroic constitution with complementary and mutually interactive basic forms of accountability?civil administrative and legal, with lasting military manifestations.

Keywords:   Dicey, Montesquieu, spirit of the laws, comparative constitutional, administrative tribunals, prerogative writs, administrative law, political constitutional, wartime cases, precedent

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