Erin Delaney 'Paradigm Lost?'

Professor Delaney's research focuses on the intersection of law and politics, with particular emphasis on constitutional design and reform. At UCL, Professor Delaney currently serves as the inaugural director of the new Global Centre for Democratic Constitutionalism launched in early 2025.

Here is the abstract for the talk:

Albert Venn Dicey—a scholar with outsized and lasting influence on the self-understanding of the United Kingdom’s constitutional order—drew from comparison with no real pretension to comparativism. In his introduction to the 2013-issued two volume set of Dicey’s work, JWF Allison explains that Dicey’s comparative work served to enrich “Dicey’s constitutional thought as expressed in The Law of the Constitution and related controversies about English constitutionalism.” Dicey thus wove his comparative insights into British constitutional theory, making it difficult to disaggregate the two.

Dicey’s best known comparative turn is his analysis of the French administrative state, which he used as a point of contradistinction with Britain. His understanding of France was criticized at the time, and his efforts to amend and update themselves generated any number of articles and further critiques, limiting the influence of this portion of his work. His commentary on the United States, in contrast, has garnered almost no attention. But it is his understanding of U.S. federalism that has anchored debates in the U.K., preventing adoption of an alternative federal paradigm.

In this paper, I first situate Dicey’s understanding of federalism as rooted in nineteenth-century U.S. dual federalism, and demonstrate how this view, in conjunction with his explication of the British constitution, serves as the backdrop against which devolution today has been structured. I then explain the major paradigm shift that occurred in the United States in the 1930s—the shift from dual to process federalism, that largely denied the ongoing relevance of the Diceyan-espoused framework. Process federalism is still the dominant view of federalism in the United States but is lost to the debate about devolution in the U.K., to the detriment of constitutional development and political stability. In the final section, I raise questions about how we should think about the relationship between the methodology of theory creation and comparativism, in light of this Diceyan story.