Autonomy, Informed Consent and Medical Law: A Relational Challenge Book

On one hand, this book represents much of what its critics claim it represents: an early 20th century lament by an aged laissez-faire believer who was horrified by the socialistic tendencies of his age. On the other hand, Dicey makes no bones about his own beliefs, but contains them inside a powerful intellectual history of England in the 19th century, one that relates those intellectual tendencies to concrete legislative changes. Even if much of his analyses have been superseded, Dicey has a peculiar insight due to his being in this time but not of it.

Dicey shows his awareness when he relates England's peculiar dominance in the early 19th century, accompanied by its fear of French-style revolution, to the quiescent Toryism of the era. As he said, the younger Pitt governed for decades, but there was probably not one significant social enactment to his name. Legislation was not in the air, and Blackstone's faith in the common law and judge-made law was triumphant against concrete legislative reforms. After 1830, however, he shows how utilitarian ideals, and Jeremy Bentham's obsession with legislative reform, led to everything from the Reform Act of 1832 to the Divorce Act of 1857, all of which hoped to replace British "status" with a belief in "contract" between individuals. He also tied these ideas to the resurgence of Evangelicalism, with its belief in individual conversions, human happiness, and its distrust of history and institutions.

But Dicey is at its most astute when he analyzes the rise of "collectivism" after 1870. He shows how the "High Church" Oxford Movement led to a resurgence in romantic feeling and art, which the cold calculations of utilitarians seemed to contradict. He shows how the resurgence in historical method, as in Henry Maine's "Ancient Law" in 1861, led to suspicions of deductive instead of inductive reasoning and towards the idea of a path of historical development. It also led to a resurgence of race-based theorizing and nationalism which contradicted utilitarian's innate cosmopolitanism. Finally, these ideas were both tied to the rise of imperialism and the need for a "muscular" state to control colonial dependencies. As Dicey shows, the fruits of these were everything from the Workmen's Compensation Act of 1896 to the Aliens Act of 1906 (which was the first to try to block immigration to England.)

So this is a wonderful intellectual and political history of England in the 19th century, one which has been superseded in some respects, but which always must be consulted.