Gathering the water: abuse of rights after the recognition of government failure. (2024)

One of the many achievements of the late Professor Mike Taggart ofthe Faculty of Law of the University of Auckland is the most thoroughanalysis ever made of the leading English case on 'abuse ofrights', Bradford v Pickles. (2) Published in 2002, Taggart'sPrivate Property and Abuse of Rights in Victorian England (3) was thefirst of the books in the distinguished Oxford Studies in Modern LegalHistory Series edited by Professor Brian Simpson. Taggart's book isan exercise in what has come to be called the 'legalarchaeology' pioneered by Simpson, (4) and he (Taggart) tells usthat those to whom he described his research whilst it was in progresstypically responded: 'Oh, you are doing a Simpson' (xi). Ifthat were not daunting enough, after he had begun his research, Taggartlearned of Simpson's substantial discussion of BvP in his 1994Selden Society lecture on Victorian Law and the Industrial Spirit (xi).(5) We may be thankful that Taggart did not abandon his research as heunderstandably says he considered doing, not only because of theintrinsic value of his book, which discusses the case at much greaterlength than did Simpson, (6) but because the attitude to the case whichevolves in Taggart's book can be very interestingly contrasted tothat taken in Simpson's lecture. The disapproval of BvP thatdominates commentary on the case is powerfully expressed inSimpson's lecture, but this disapproval significantly is much moreequivocal in Taggart's book.

The main reason for this, I will argue, is that the dominantattitude to BvP rests on an assumption that intervention in the publicinterest generally is beneficent which Taggart himself stated withpronounced conviction in other work, but which does not survive his veryclose study of the case. This study shows that the contrast betweenPickles' selfishness and the beneficence of the Corporation ofBradford, on which the criticism of BvP as an obstacle to a doctrine ofabuse of rights rests, is implausible, largely because the Corporationactually went about securing its water supply in a highly objectionablemanner. I will explore the implications of this for the attitude weshould currently take towards intervention in the public interest, andthis will take us on to a consideration of the role of abuse of rightsin an area in which Professor Taggart made a first rank contribution:modern administrative law.

The absolutist interpretation of BvP

The facts of BvP (7) arose from the nineteenth century growth ofBradford, from a market town of some 6,000 inhabitants in 1801, into'Worstedopolis', the 'worsted' or 'wool capitalof the world', which, in 1901, was the ninth largest city inBritain, with a population of over 400,000. This growth of course placedenormous demands on Bradford's water supply and, amazing to say,for a considerable period from 1846 onwards this was substantially metfrom a single source, the incredibly productive 'Many WellsSpring', which rose some seven miles to the west of Bradford inwhat was then the hamlet of Hewenden. By the time of the litigation, itwas estimated that the enormous sum of 200,000 [pounds sterling] hadbeen spent in order to add this spring to the Bradford supply (42).After the municipalisation of the supply in 1854, the Corporation ofBradford undertook extensive works which reduced its dependency on ManyWells, to the point where, in the early 1890s when the facts of BvParose, it was providing less than 4% of the Bradford supply, and by thebeginning of the twentieth century, Bradford had a superabundance ofsupply which made it immune to shortage (21).

The Many Wells Springs was fed by water which gathered under theland of East Many Wells Farm. (8) With one exception, at no time did theCorporation or the private Company which preceded it pay the Picklesfamily which had owned East Many Wells Farm since the 1790s (12 n 31, 13n 37) anything for the water extracted from the spring (2). Theexception is that, in the 1860s, the Corporation paid thedefendant's father 400 [pounds sterling] to desist from coal miningwhich it was feared would interfere with the spring. This payment (and apayment of 600 [pounds sterling] to a third party coal merchant alsoinvolved) would appear to reflect the lost value of the coal as thestatutory procedure for making this payment would have provided, butunarguably it was indirectly a payment for the water (39 n 56). In the1890s, the defendant, Edward Pickles, then owner of East Many WellsFarm, devised a similar plan to mine a seam of flagstone under his land.This plan would involve drainage of the water which fed the spring in away which certainly would seriously interfere with and perhapsextinguish the spring. The litigation was conducted in the twocirc*mstances that Pickles' works certainly threatened the ManyWells supply, but that critical, or even really important, dependency onthat supply had ended prior to that litigation.

From the outset, Mr WT McGowen, the long-serving, very highlyrespected Town Clerk of Bradford, a solicitor by training and clearly aformidable holder of his office (28-32), whose influence on theCorporation's conduct throughout this episode Taggart shows to begreat, took the view that Pickles had no real interest in mining andthat the threat to the spring was an attempt to, in a lay sense, (9)blackmail the Corporation into paying for the water (36-8). (10) MrMcGowen's 'intransigent' attitude (72) seems to date backto the defendant's father's success against the Corporation(30, 25). Mr McGowen pressed his view on the Corporation, which Taggartconcludes was always minded or even resolved to 'have no truck withEdward Pickles' (72). As for Pickles, by thorough analysis of theproposed works which builds on dicta particularly of North J (11) and onclear suggestions in Simpson, (12) Taggart puts it beyond argument thatPickles was, at the very most, only tangentially interested in the stoneprior to the litigation (44-7, 72). Negotiations which Taggart describesas desultory (39, 72) understandably therefore having failed, theCorporation refused to pay anything at all, and instead obtained aninjunction to prevent Pickles carrying out his plan, which Pickleschallenged.

BvP is a classic case because, on what I will call the absolutistinterpretation of it, Pickles' motive was deemed irrelevant as hehad (as close as it is possible to conceive) an absolute right to dowith his land as he wished, and the injunction was lifted by the Courtof Appeal, which was affirmed by the House of Lords, becausePickles' motive was irrelevant. The absolutist interpretationcannot be stated more forcefully than it was by Simpson in a paper onKeeble v Hickeringill and the common law attitude to the maliciousexercise of rights:

 The House Lords, with what can only be called glee, ruled that [Pickles'] motive was quite irrelevant to the legality of his action. Just as the owner of a box of matches can while away the time by striking them to watch them burn simply to irritate a passing boy scout who has urgent need of two to pass his fire-lighting test, so could Mr Pickles abstract the water just to annoy the Mayor of Bradford. (13)

Now, it has long been observed that the absolutist interpretationof BvP is wrong, (14) and, especially as Taggart teases out the nuancesof Pickles' supposedly absolute right more thoroughly than anyoneelse has ever done (chs 5-6, Epilogue), I want to put consideration ofthe absolutist interpretation as precedent to one side. As we will see,Simpson himself focuses on something much more interesting. I do notwish to deny that much of the dicta in the Appeal Court judgmentssupports the absolutist interpretation, but much of it does not, and,for what it is worth, I myself believe that those Courts, had they notthought Pickles actions had some colour, would have found it entirelypossible to distinguish BvP from previous authority interpreted assetting up an absolute disregard of motive. (15) Let us also ignore thetedious paradox whether any sane person, even the bad character inSimpson's example of the match burner, can ever act out of pure,disinterested (16) malice, for even the match burner presumably foundsome gratification in irritating the boy scout, and recognise thatPickles did not do as he did 'just to annoy the Mayor ofBradford' (73). He did what he did to force payment for the water,that is to say, out of self-interest, and what the case was about iswhether this form of exercise of self-interest was legitimate.

Prior to the publication of his essay on Keeble v Hickeringill inLeading Cases in the Common Law, Simpson had already, in his SeldenSociety lecture, levelled the accusation that the Lords' opinions,particularly the famous speech of Lord Macnaghten, evidence 'a hintof what can only be called glee at the grasping, greedy behaviour ofEdward Pickles', (17) and his own opinion of the case is that itis:

 a most striking illustration of the persistence, in the common law tradition, of the individualistic conception of property rights celebrated, over a century earlier, in the passages of Blackstone which I have quoted. The claims of public interest surely favoured the Corporation against Edward Pickles. But Pickles' despotic dominion triumphed in spite of the obvious awareness of the judges of the potential consequences of their decision. Let there be sanctity of property even if the heavens fall, or even if the City of Bradford is converted into a howling desert. (18)

What really interests Simpson about BvP is not the absolutistinterpretation but rather the 'clash between private propertyrights and the public interest' which he believes the casearticulates. (19) He is in particular anxious to argue againstBlackstone's definition of the right of property as 'that soleand despotic dominion which one man ... exercises ... in total exclusionof the right of any other individual in the universe', (20) andBlackstone's drawing the following implication of that definition:

 So great ... is the regard of the law for private property that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, without consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community. (21)

What Simpson fundamentally finds objectionable about Pickles'actions is not that he could do anything he liked, which hecouldn't, but that, as a 'greedy Yorkshireman' motivatedby the Victorian industrial spirit, he was the hom*o economicus of hisday when, for reasons of his own self-interest, he opposed the publicinterest in economic development represented by the Corporation ofBradford. (22)

Simpson has been highly critical of the law and economics of theSecond Chicago School, and, in particular, has enjoyed considerablesuccess in challenging the treatment of property rights in the work ofRonald Coase. The dismissive reference in his Selden Society lecture to'some ideal theoretical world' in which, as 'everyonebehaves with economic rationality', 'it may well be thatabsolute rights of private property are perfectly compatible with rapideconomic development', (23) is a criticism of Coase's'The Problem of Social Cost' (24) as an exercise in meretheory. Simpson made a similar criticism of Coase in the course of otherof his legal archaeological studies, (25) and has made a direct attackupon Coase (26) of the first importance which should be a focal point ofany discussion of the 'liberal economic' and the 'publicinterest' attitudes towards intervention. I believe thatSimpson's argument against Coase is misdirected in large partbecause he (Simpson) fails to see that Coase is at least as great acritic of the 'ideal theoretical world' in which'everyone behaves with economic rationality' as Simpsonhimself. (27) But Coase is also to the forefront of those who haveargued against the public interest case for intervention by showing thatit is much more difficult, but not impossible, to identify the actionrequired by the public interest than typically is appreciated, and Ibelieve that Taggart's book provides more than sufficient evidencethat this was the case in BvP.

Though his explicit writings on law economics are entirely enpassant, Taggart certainly shared Simpson's views about them, andhe particularly focused his obvious wrath on the 'publicchoice' economics which have been to the forefront of pointing outthe problems of the concept of the public interest. Taggart'sexplicit comments on these economics are not, in truth, especiallypenetrating, and I do not wish to argue against them directly, but I dowish to argue against at least part of Taggart's important views onadministrative law from which his views on law and economics arise.Taggart did not come to BvP as a tort lawyer. His principal strengthswere in public law, and, in particular, he was amongst the first rank ofthose engaged in the most recent attempt to develop a distinctadministrative law appropriate to the Commonwealth jurisdictions stillhaunted, to varying but always significant degrees, by the ghost of AVDicey. (28) Taggart was interested in 'the reasons why the commonlaw rejected [an abuse of rights doctrine] and in the light this shedson the different starting points of private and public law' (166).The rejection of a doctrine of abuse of rights in BvP is a'symbol' of all that Taggart thought wrong about the divisionbetween public and private law (201), and in an important 1997 paper on'The Province of Administrative Law Determined?' he attackedthe case as he then understood it:

 The marked difference in public law and private law approaches ... is underpinned by the absence of an abuse of rights doctrine in the common law. This French-inspired doctrine is widely accepted in civil law countries and the Canadian civil law Province of Quebec, and basically prevents a right-holder abusing the right by exercising it for the sole purpose of harming another or for a purpose other than that for which it was granted or in an unreasonably disproportionate fashion. The common law turned its face against such a doctrine at the end of the 19th century, (29) refusing to investigate the motives or reasons for the exercise of lawful powers by private individuals or corporations, no matter how discriminatory or harmful to the public interest. Nothing could be more at odds with the starting point of administrative law, and the absence of such a doctrine--unless and until this position is re-examined--will hinder to some extent the blending or synthesis of public and private law. (30)

By 're-examined', Taggart meant reversed, and he intendedPPARVE to contribute to the reversal. But Taggart had sufficientopenness of mind that, on examining this great Victorian case on therelationship of citizen and state, he began to see things were not as heimagined. I do not say that Taggart changed his mind about abuse ofrights. He didn't. But I do think his book on BvP gives greatweight to the argument that such a change of mind would be justified,and that he to some extent recognised this.

Gathering the Water

Whilst I certainly would have read Taggart's book in anyevent, I took it up with a particular, personal interest. Hewenden Beck,the (I think) natural water course fed by the spring harnessed to theBradford supply, is a subtributary of one of West Yorkshire's mostimportant rivers, the Aire, and between 1989 and 1999 I had a house 5miles north of Hewenden on the other side of the Aire Valley. I knew thearea that Taggart describes well from walking there, and, for what it isworth, I must say I was surprised and impressed at his grasp (70) of thegeography of a landscape complicated by extensive, impressive Victoriancivil engineering works which had in part been allowed to collapse intoa confusing decay. Since the time of Taggart's researches,considerable restoration of the works has been undertaken, and Hewendenis in fact a tourist destination in a small way, because of the worksand because, as it descends, Hewenden Beck runs over an attractivewaterfall in a particularly nice bluebell wood. However, I cannot saythat the upland landscape around Hewenden gives rise to an immediatefeeling of affection. It is bleak and in poor weather harsh, and theprincipal feeling to which it gave rise in me was admiration for thosewho had made a living in it without benefit of modern amenities. By farthe most famous account of the general atmosphere of this landscape isWuthering Heights, although, to be accurate, Catherine Earnshaw'smoors and the now ruined house thought by some to be the inspiration forWuthering Heights itself are four to five miles to the west of Hewenden.So strong is the pathetic fallacy generated by the unfolding of thisstrange and morbid story in this sometimes grim landscape that oneimagines that this atmosphere will never be better captured.

But in 2006, Robert Edric, (31) the distinguished contemporaryYorkshire novelist, added a strikingly original touch to our conceptionof the Victorian Yorkshire landscape in his Gathering the Water. (32)Edric's story is situated in North Yorkshire some 20 miles north ofHewenden, (33) but whilst this is, at least to a Yorkshireman such asmyself, in important ways a quite different setting to that of WutheringHeights and BvP, in substantial part it shares its bleakness, and Edricconveys this in a way which, one can say without absurdity, may becompared to Wuthering Heights. One critic, making the point, albeitstriking rather too facetious a tone doing so, headed her review'Wuthering Depths'. Gathering the Water has gothic featuresakin to Wuthering Heights, but much of its power is derived from aquality completely absent from Emily Bronte's on the face of itderanged narrative, for its gothic features are contrasted to a matterof fact plot which will call BvP to the mind of any reader who hasstudied the common law. Its central character, Mr Charles Weightman, isa surveyor charged with overseeing the 'drowning' of aninhabited valley to create a reservoir which will supply inter aliaBradford and Leeds with water. As the story begins, most of the affectedpopulation have left the area, but not all, much to the disappointmentof Weightman, who had been given a different impression by the Boardwhich employed him:

 To hear the Board men speak, you might think I had been bound for a wilderness of unmapped moor crying out only for the civilising of their scheme. To hear these men speak, you might think I had been handed the crown and sceptre of a fabulous kingdom, as yet unexplored, and over which I exercised sole and absolute dominion. I see now ... why they might have encouraged me in such a belief. (34)

Gathering the Water describes Weightman's trials as he triesto remove the remaining population, for, the point of relevance to us isthat, as he does so, he is, of course, roundly hated, and, being a manof sensibility, he to some extent comes to hate himself. Abandoned homes(but 'mistakes were ... made') (35) are smashed by gangs of'wreckers' brought in by railway, and Weightman feels his lotto be worse than theirs:

 I cannot ignore the obvious comparison between the wreckers and myself. These other men are skirmishers, come seemingly out of nowhere, destructive and quickly withdrawn; and, allowing the comparison, I find myself little more than a camp follower, a scavenger, benefitting from this brutality, and trudging with my account book through the aftermath, the mess and loss and suffering of battle. (36)

Of course, there is a benefit. The growth of manufacture in whatwere becoming great cities is 'yet another weight placed upon thescales of loss and gain', but, to those losing their homes throughcompulsory purchase followed by wrecking, 'the loss was all hereand the gain all elsewhere'. (37)

Edric brings to the foreground what does not emerge at all fromSimpson's lecture and emerges only incidentally from Taggart'sbook. They draw a clear contrast between commendable public interest andselfish individualism, but it cannot have appeared like this toPickles' contemporaries, and, in an important sense, the attitudeSimpson is attacking in the judgments, which we will see Taggart showswas shared by significant elements of public opinion, is evidence ofprecisely this. To contemporaries, the public interest must have been,not merely unclear, but contested. Simpson's entire argument restson the following sentence: '[s]ince economic development wasconceived to be broadly in the public interest this conflict could beseen to be between private property and public interest'. (38) But'broadly' hardly captures the range of things, good and bad,done in the name of economic development in industrialising England, andit will not have been the guide to right action at the time whichSimpson retrospectively believes it to have been, even if, a hundredyears later, one agrees with it. Was it so clear to contemporaries thatthe growth of Bradford in this way was in the public interest? If itwasn't, then the badness (71) of Pickles' conduct must be seenin a different light, for the moral quality of that conduct is notentirely defined by itself but by the interest to which it is opposed,and it cannot have been black and white in the way Simpson says andTaggart set out to say (72). Pickles' behaviour is greedy andgrasping only if it can be contrasted to the virtue of direct pursuit ofthe public interest, and this, of course, requires us to know what thepublic interest was, and to be able to have confidence in theCorporation of Bradford acting in its name.

It is very paradoxical to see Simpson and Taggart so keen toendorse the supply of water to Bradford, and I am at a loss tounderstand how the Victorian industrial spirit which Simpson so deploresin Pickles and the judges who find for him does not seem to taint thegrowth of Bradford, one of laissez faire capitalism's greatestsuccesses. I have made almost no inquiry into the facts, but, whilst Idoubt neither the influence of the public interest nor the overallwisdom of public acquisition of the supply, as a reader of Engels and JBPriestley, I surmise that in Worstedopolis the public interest will havebeen given concrete form by a powerful class of men who, to useMarx's word (Trager), were bearers of the industrial spirit to afar higher degree than the rather pathetic self-proclaimed 'QuarryOwner' Edward Pickles (35), and that their concern for the watersupply of industrial Bradford will have been informed by that spirit.(39) I do not want to hold Simpson and Taggart at all responsible for,in the end, an incoherence that is characteristic of all theories of thecapitalist state, but to portray Pickles as representing the industrialspirit against the capitalists which used the state to provide a watersupply to Worstedopolis is implausible.

The significance of statute

Though the overwhelming preponderance of commentary on BvP issolely concerned with the common law position on abuse of rights, therights of the parties were mainly determined by statute and it isimpossible to understand the case without appreciation of the statutoryposition. The common law argument was a residuum of the statutoryargument. The Corporation, in order to distinguish its buying out of thedefendant's father's mine from its refusal to buy out thedefendant's, had to stress that the defendant's behaviour wasillegitimate in a way his father's had not been (50). (40) Thoughthe wording of the relevant provision, which is quoted below, makes noreference to this whatsoever, establishing it would no doubt have helpedsecure the interpretation of the statute the Corporation required. NorthJ alone of those who heard the case found for the Corporation on thestatute. This finding rendered his statement that the nature ofPickles' conduct was irrelevant obiter, but, alerted to thepossibility of an appeal, he felt obliged to discuss that conduct, ofwhich he manifestly disapproved, even going so far as to use the word'blackmail'. (41) Once the Corporation lost on the statute, itbecame essential to mount an argument about the defendant's stateof mind in interfering with the supply, for the interference arose fromthe exercise of rights the Corporation was then obliged to acknowledgehim to have. Let us, then, turn to the statute.

Obviously, major works such as taking Many Wells water to Bradfordwould involve interference with the property of others, and s 233(supported by other sections) of the Bradford Waterworks Act 1842, (42)the Local Act which incorporated the private Company that first broughtthe Many Wells Spring into the service of the Bradford supply, gave theCompany the right to take the Many Wells water by consensual orcompulsory purchase as the legitimate means of effecting suchinterference, under a procedure which included identification ofpossibly affected land prior to Parliamentary approval (16). But,although the Company bought the land on which the spring actually rosefor 2,000 [pounds sterling] (11); incurred very substantial expense indealing with affected downstream landowners (14), including building the6,500 [pounds sterling], 16 acre Hewenden Reservoir at the boundary ofthe Pickles' land and in view of their farmhouse (38) to preservethe water supply to others (11, 14); and had every opportunity topurchase sufficient of the Pickles family's interest as to protectthe spring (16, 79, 118), it did not do so. The Pickles family were noteven formally notified or given a chance to object to the proposed useof Many Wells under the 1842 Act (14).

s 234 (supported by other sections) of the 1842 Act sought toprevent anyone interfering with the Many Wells spring after the Companyhad purchased it. s 234 was reenacted as s 49 of The Bradford WaterworksAct 1854, (43) one of the Acts which municipalised the private Company,and all the judgments in all the litigation accepted that the twosections were in legal effect identical. s 49 provided:

 It shall not be lawful for any person other than the said Company to divert, alter, or appropriate in any other manner than by law they may be legally entitled, any of the waters supplying or flowing from steams and springs called "Many Wells" ... the same, or to sink any well or pit, or do any act, matter, or thing whereby the waters of the said springs may be drawn off or diminished in quantity.

The litigation was required because s 49, which was excoriated inthe litigation for its ambiguity, was not drafted in a way which clearlygave the Corporation power to stop Pickles' mining plans.

The parallel I have drawn between Edric's Gathering the Waterand BvP is weak in at least one way. BvP could never have arisen if theMany Wells works necessitated physical invasion of East Many Wells Farm(14, 20). The typical circ*mstance envisaged by Edric is compulsorypurchase of a dwelling and Edward Pickles was concerned only with anunderground flow of water which it was not clear prior to BvP was hisproperty in such a way as to exclude the Corporation's use. Taggarttells us that '[a] constant refrain of Edward Pickles ... was thatall he wanted to do was ... "exercise ordinary landowners'rights"' (35, 35 n 48), but Taggart essentially concludes thatSimpson was right to say that BvP was a case of first impression aboutwhat these rights were. (44) But, after it was found that Pickles hadthe necessary property in the water, then we must say that, not havingbought out the Pickles family, the Corporation wished to use s 49 tocurtail their property rights without paying to do so.

Taggart argues that, unless s 49 did just this, it had no purposewhatsoever. This makes the 'clash between private property rightsand the public interest' Simpson identifies stark, and is theground of Taggart's brilliant but, in my opinion, wrong argumentthat BvP is not a case of statutory ambiguity at all but of outright'disobedience of the legislature' (94). The choice, Taggartwould have it, is between an interpretation of s 49 which benefitsPickles by reducing s 49 to nothing, or an interpretation which gives itthe effect sought by the Corporation which reduces Pickles'property right to nothing. I myself do not agree with this, for s 49seems to me to be directed at those without a proprietary interest whointerfere with the supply. I can see a value in this even in thecirc*mstances of the case, and the principal ambiguity that arose did sobecause s 49 was to be used against a defendant whose proprietaryinterest had not previously been made clear.

This is not a sufficient argument against Taggart, but there is noneed to persist with it because, in respect of understanding abuse ofrights, I am afraid I see no point to Taggart's interpretation,other than setting up Simpson's stark 'clash', for itruns against the surely unarguable fact that ambiguity was perceived bythe parties, by contemporary commentators, and by all those who heardthe case (88-92), including, as Taggart is obliged to admit, North Jhimself (87-8). Fundamentally, this is the ambiguity of it beingnecessary, in order to give s 49 effect, to believe that Parliament hadintended to expropriate without compensation, and had not made thisprima facie implausible construction stick by use of as close aspossible to crystal clear language to that effect (91). In my opinion,it didn't use such language because it would not have had such anintention. (45)

There was, I submit, no a 'clash between private propertyrights and the public interest'. That the public interest could beexercised through compulsory purchase was never at issue in BvP. Thepossibility that 'Blackstone's despotic dominion [might] reignuncontrolled', as Simpson put it elsewhere, (46) never existed.This was not a case about whether the public interest could be exercisedbut in what manner it should be exercised. And it seems a point ofgeneral agreement that the overwhelming contemporaneous opinion was thatthe legitimate form of expropriation of private property was compulsorypurchase (104-5). The question, then, is why compulsory purchase was notmade. Taggart's principal contribution seems to me to show that thefailure to buy out the Pickles family was the result of a negligentmistake, or of two negligent mistakes. (47)

I have mentioned that the Company did purchase the land on whichrose the particular spring from which it took the water, Trooper'sor Many Wells Farm (81), and it would appear that it must have thoughtit had secured the supply by doing so. However, not only is the easternboundary of East Many Wells Farm only 20 yards from the mouth of thespring, but the property is largely situate upland of Trooper'sFarm (12, 94), and, as Taggart puts it, '[i]t would have been plainas a pikestaff (to anyone who had inspected the property) that the watergushing from the Spring came from underneath the upland farm' (93).Even North J found essentially this as fact. (48) BvP may have been acase of first impression over rights to water such as Pickles claimed,but, allowing this, Taggart rightly goes on to say, in serious criticismof the Company, that the unclear legal situation prior to 1842 therefore'would have alerted even the dimmest of investors and theiradvisers to the need to ascertain the legal position and make provisionaccordingly' (108). On the basis of materials available to him(Appendix n 3), Taggart is unable to explain why the Company took theline it did, though he does argue that the actual drafters of the 1842Act (31) would not have visited the site (93 n 79). However this is, thefailure to buy out the Pickles family created a situation in which theCompany was exposed to threats to a spring in which it proceeded to makean enormously costly investment and on which it proceeded to place asimply immense reliance. Looking back on this having seen North Jreversed by the Court of Appeal, the Corporation's own WaterEngineer, Mr James Watson, wrote to Mr McGowen to say that the Company'must have been little short of simpletons' to put themselvesat this risk (61).

Simpson quotes Mr Watson's letter to back up his conclusionthat '[w]hether the outcome of the case made much sense can well bedoubted'. (49) The argument is that, as the Company must have beensimpletons to do what they did in 1842, and as s 49 (ie s 234)'could be interpreted as covering Pickles' scheme', (50)as of course it could, then, in the public interest, it should have beeninterpreted as covering Pickles' scheme. With some further argumentabout the Corporation's actions in 1854, this essentially was theposition of Mr McGowen (68, Appendix n 3). But it is here that Taggartsubstantially departs from Simpson and advances the fundamentalcriticism of the Corporation. For, although Taggart cannot explain theCompany's mistake, the conclusion he draws from showing that theymade it is that '[i]t is difficult to acquit the actual legaladvisers and Parliamentary agents of the promoters of the BradfordWaterworks Company of the charge of negligence in this respect'(118-9). The risk to the spring existing, there is no doubt thateveryone except North J who heard this case read s 49 contra preferentumagainst the expropriating authority, and their reward has been to beregarded with contempt or outright animosity. But should statutes be'benevolently' interpreted to give a green light to publicundertakers by covering up the consequences of their negligence to theirbenefit (98-102, 198-201)? Should common law sweeping up doctrines beinvented so that they can be used to do this?

I have spoken somewhat loosely of the Corporation and the Companybecause, though the Corporation's agents such as Mr Watson mightwell have said nasty things about the Company, whatever problem theCompany caused, the Corporation of course reproduced it in 1854 byadopting s 234 as s 49 and not doing anything else (61). As againcontemporary newspaper opinion put it, the Corporation had 'managedto get into a somewhat serious fix' by reproducing the risk to thespring (42), (51) and sympathy with the failure of the s 49 argument wassparse:

 The Corporation had no rights over [Pickles'] land--for the absurd clause on which it relied did not in any way give them more than their common law rights. Bradford had made a mistake in the way in which its waterworks were acquired; and it is nothing but right that Bradford should pay for the mistake (69).

Taggart tells us the author of this newspaper opinion 'put hisfinger exactly on the crucial point' (68). Taggart does much toshow that the Corporation, not being nearly so dependent on Many Wellsas it had been when it settled with the defendant's father (25),took the line it did towards Pickles because it could not find it initself to acknowledge its mistake. As I have noted, Mr McGowen certainlywas aware of Pickles father's success against the Corporationdespite s 49, and, as Taggart says, '[i]t is not clear why McGowenand the Corporation in 1890 thought that "this time" EdwardPickles was in the wrong as a matter of law' (27). Given the veryunclear law about water rights (ch 5), general defects in statutoryprotection of the type offered by s 49 about which the Corporation hadbeen anxious when giving Select Committee evidence (26), the generalsolicitude about ensuring private property could be expropriated onlywith compensation (16), behind which lay a settled rule thatinterpretation of Local Acts should be contra preferentum (96-7), theCorporation's decision to litigate, and to continue to the pointwhere the in the end the litigation fruitlessly cost the ratepayer thevery large sum of 4,000 [pounds sterling] (71), was wholly questionable:'it is at best puzzling and at worst suggests that there may besome truth to Pickles's claim that the deep-pocketed Corporationhad threatened "to swamp" him with the litigation' (27).

I believe the impression to which this gives rise, of, as newspapercomment had it, a 'powerful corporation' acting in an'undignified and unfair', 'high-handed, overbearing andunreasonable' manner (68), is confirmed in what Taggart rightlycalls an 'extraordinary' (59) episode during the litigation,about which he does great service in uncovering important information(5961). After the Court of Appeal had decided to reverse North J butbefore its judgment was published, Lord Herschell LC, a member of thatCourt, told the plaintiff s leading counsel, Cozens-Hardy QC, that, ifthe plaintiff would apply to Parliament for the power to compulsorilypurchase the water, the Court of Appeal would not publish its judgmentuntil after Parliament had passed the necessary Local Act. Despite MrCozens-Hardy being of the opinion that his client should do as LordHerschell suggested, it did not do so, and appealed the case to theLords. Whatever sympathy one has for the Corporation when it becameaware of Pickles' mining plan, I submit one can have none for it inrespect of this refusal to accede to a compromise offered in what musthave been most awkward circ*mstances by the Lord Chancellor, (52) whichTaggart can only attribute to the Corporation continuing to not beingable to admit to its mistake in 1854 (61). (53)

Simpson puts Lord Herschell's offer down to the Court ofAppeal being 'not a little nervous of the possibly appallingpractical consequences of their decision [which] appeared to enableEdward Pickles to hold the City to ransom'. (54) But, with respect,there never was a threat of ransom. Bradford always had the possibilityof obtaining the power to compulsorily purchase Pickles' interest,and Lord Herschell was, I submit, merely trying to bring it to itssenses about this. Taggart puts forward, albeit in a footnote (59 n 57),the far more plausible 'competing explanation' of LordHerschell's offer 'that the Court thought that the Corporationshould pay for the water rights'. Simpson then puts forward theCorporation's refusal to reluctance to pay the expense ofsponsoring the necessary Bill. I leave this to the reader to evaluate.(55) But Simpson does make it clear that, had the Corporation soughtcompulsory purchase powers, the price would not have been anyextravagant sum Pickles asked but the 'fair price' thecompulsory purchase procedure determined. Mr Cozens-Hardy told hisclient this. Taggart very valuably adds from unreported notes of theproceedings that Mr Cozens-Hardy would have been aware that the Court ofAppeal disapproved of the size of Pickles' demands (60 n 58), andthat Lord Herschell had predicted that 'the compensation to Picklesprobably would not be a very big sum' (60). The Corporation stillignored his advice.

To this picture of deplorable official obduracy I will only addmention of one point where Taggart's account of the facts differsfrom Simpson's. Pickles 'was not a rich man' (70), and,although he will in the end have been able to recover costs, thisepisode must have been tantamount to ruinous for him (71), for though hemay have won the battle, he lost the war (69). After the litigation hecontinued with his stone works and made repeated offers to sell his landto the Corporation, but the Corporation continued to refuse to deal withhim, and he emigrated to Canada in, Simpson no doubt is right toconclude, defeat. (56) For Simpson, this is a tale of evil getting itsdue reward: Pickles' 'greed ... caused his downfall', forhis 'very success doomed his plan; it is in the nature of blackmailthat the threat must never be carried out. He had so successfullydisrupted the underground supply that [he] made the land useless as asource of water'. (57) But Taggart tells us this was not the case(69), and this improving story is unfounded. In June 1897, theCorporation undertook works to tap Many Wells by alternative means, andused the supply, although of greatly diminished relative importance, fora further half century (70). It 'had had in mind this contingencyplan' throughout the litigation (69).

In sum, I can only quote Taggart's own principal explanationof the actions of the Corporation, and his evaluation of those actions.The first is that 'the Corporation never did pay for its mistake of1854, and therefore never publicly admitted to making one' (69).The second is that:

 The Corporation did not take any of the opportunities offered to buy the land or the water rights, neither did it go to Parliament to acquire such rights compulsorily. Instead, it pursued expensive litigation so far as it could go. And when the legality of the matter had been definitively sorted out, the Corporation refused to negotiate (72).

I believe that the material Taggart uncovers shows that the publicinterest which Simpson and he identify with the actions of the BradfordWaterworks Corporation to be a very slippery concept indeed, and BvP isin fact the result of government failure. The Corporation made at leastone extremely serious negligent mistake about its business, andobstinately persisted in a course of action consequent upon that mistaketo the prejudice of an affected private party, rather than admit thatmistake.

Criticism of BvP on the basis of the absolutist interpretation,when it is not just wrong, involves, in my opinion, saying thefollowing: a landowner should, at common law, utilise his land in a waywhich is consistent with the public good as identified by a public body.He should not be able to insist upon being compensated for this. If, asshould be the case, a statutory procedure for compensation exists buthas negligently and then obstinately not been exercised by the relevantbody, this is of no relevance to the common law position, which requiresthe private party to fill in the gaps left by the state by surrender ofthat part of his ownership which is causing a problem for the body whichcites the public interest in support of its activities. I do not findthis an attractive position. It amounts to a servility I find worrying.The particular thought which led me to write this paper was that I couldnot see how to distinguish BvP understood in this way from the Congrevecase, (58) surely one of the foundations of modern administrative law,and a number of the common like cases. It is important to question howthis servile position could become so dominant that it seems quiteunproblematic to the great majority of those who have considered BvP,including, in Simpson, one of law's greatest commentators and, inTaggart, a highly distinguished one.

Taggart's engagement with the case led him into ambivalenceover this, and, as a result, I think it fair to say his book readsunevenly and, in particular, the paragraph headed 'Time forReconsideration?' at the end of the last chapter proper reads alittle strangely. Taggart gives a list of distinguished commentators whoover the course of the 20th century attacked the absolutist ratio of BvPjust as he intended to do, and concludes with the question '[i]s ittime to heed these persistent calls for a reconsideration of the commonlaw position' (193). But Taggart's book has shown that thesecommentators have not understood BvP as it can now be understood on thebasis of Simpson's and his legal archaeological research, and sothe answer to this question to which his book leads is 'I am notsure', which I think was Taggart's position, or'no', which is mine.

I think that those who understand BvP in terms of the absolutistratio will read this question as merely rhetorical, but in the even morecurious 'Epilogue' which follows his last chapter proper,Taggart says that this question was 'deliberately lefthanging'. This Epilogue also leaves the question hanging. It reallyis as if Taggart did not know how to finish his book after his researchhad disrupted his own original understanding of BvP. Looking at thisfrankly, he says PPARVE does not answer this question because this:

 would require another book, and a different kind of book, than this one has become. This is a different book than the one I set out to write. I first became interested in Pickles for the light it would shed on the public/private law divide, and the implications of (re)privatisation of public utilities, such as water companies. But I soon got drawn into the fascinating story, and realised the importance of understanding the case in the context of its own time and place. It dawned on me that by projecting contemporary concerns back into the past and looking for future guidance, I was misusing historical method in the cause of advocacy (196).

This is very well said. In work published shortly after (thewriting of which perhaps overlapped with) his book, Taggart maintainedthat '[i]t is no doubt time to heed ... persistent calls for areconsideration of [BvP]', but writing his book seems to have givenhim a greater appreciation that the 'the difficulty of doing so ...should not be underestimated', in essence because the absolutistinterpretation was 'far too simplistic', but more because hewas no longer clear about where he stood on the 'tussle betweenindividual autonomy and the public interest'. (59) I have beenunable to piece together from Taggart's subsequent writings what,in the end, he thought could be done about BvP in terms of concrete lawreform. He maintained his general position, but entered into no detail,perhaps because the difficulties of reform, especially reform based onimportations from the civilian tradition, were given greater weight(165) than they would have been were Taggart still of the mind withwhich he began his research. But, in the end, it had all became rathermore abstract: 'a clash of values'. (60) I can, however,confidently say that someone whose last work evidenced a commitment tothe wide use of quantum meruit in determination of utility pricing bycourts (61) would not agree with the view of the case that, in essence,I had formed prior to reading Taggart's book, but which I think hisbook confirms: that development of a doctrine of abuse of rights wouldbe a serious mistake. It is a mistake which follows from a view of therelationship between citizen and government that has been dominant butwhich we should now abandon, the key to which, in Taggart's case,is to be found in public law. Public law discussion of this issue must,of course, begin with Dicey.

Taggart and Dicey on administrative law

Reflecting on Emerson's maxim that 'to be great is to bemisunderstood', I have long thought that Dicey must be a trulygreat figure because he is in a league with Karl Marx and Adam Smithwhen it comes to being subject to criticisms which are based on acomplete lack of sympathy with his work. I am afraid I simply cannot seethe justice of an attack, even when mounted by one of our mostdistinguished administrative lawyers, on 'the denial of the subject[of administrative law] expressed in Dicey's insularindividualism', (62) when this denial made good sense inDicey's own time, even if one doesn't agree with it, and, Iwill argue, makes even better sense now, even if one doesn't agreewith it.

The key to understanding Dicey is the apparent truism that, born in1835 and dying in 1922, he was, as one of his biographers has put it, a'Victorian jurist', whose views were, it appears, essentiallysettled by the 1860s. (63) As an 'old Liberal' extremelyconcerned about the extension of the franchise, it is inevitable thatsome of what he said now seems antediluvian, and either silly orunsavoury or both as a result. In his 1942 essay in defence of Kipling,Orwell began by saying that '[i]t is no use pretending thatKipling's view of life, as a whole, can be accepted or evenforgiven by any civilised person', (64) and surely something milderbut essentially like this must be said of Dicey's view ofdemocracy. But just as Orwell recovered the profound good sense inKipling, I believe we must now see the similar but much greater sense inDicey. Writing of a 'popular faith in the EnglishConstitution' 'which in 1905 has become almostincomprehensible', Dicey asked '[w]here shall we now find theardent believers in the Constitution of England? If they exist at all,they belong in spirit to the past'. (65) Dicey has lacked forreaders who can penetrate the period veneer of passages like this to seethe importance of what he says, and, in particular, that, '[f]orall its conservatism, much of Dicey's constitutional writing alsoreflects a salutary concern with the need to impose effectiveinhibitions on power and the defence of the citizen from power'sall-inclusive claims'. (66) Though he celebrated classical liberalvalues with an enthusiasm which causes embarrassment to almost any legalacademic who reads what now seem to be purple passages indeed, Dicey wasnot remotely foolish enough to end his life as a triumphalist liberal,and the preponderant tone of his work in the twentieth century (puttinghis entanglement with Home Rule aside) is a melancholic if notpessimistic recognition of an 'ominous' growth of'collectivism'. It is remarkable that one of the most acuteanalysts of the shift in English political culture and government thathas produced the maximalist (67) welfare state is preponderantly nowthought in public law circles to have been something of a fool aboutjust this. (68)

Jennings acutely observed that, from 'the Whig point ofview', Dicey saw the constitution as 'an instrument forprotecting the fundamental rights of the citizen, and not as aninstrument for enabling the community to provide services for thebenefit of its citizens,' (69) though, to complete one'sunderstanding of Dicey's position, one should add that Dicey, forreasons he thought good, wanted to keep it the way he saw it. Diceyextolled sovereignty of Parliament and the nineteenth century law andinstitutions that embodied it; insisted that sovereignty of Parliamentas a wonderfully valuable understanding and practice of governmentrested on the nineteenth century liberal political culture which it wasuniquely fit to institutionalise; and foretold the consequences for thepractice of government of the replacement of that political culture witha collectivist one, a process I have said that he believed was ominouslygathering force towards the end of this life, the main constitutionalsign of this being the initial development of an administrative law akinto droit administratif. So far as one can tell, Dicey did not eventoward the end of his life, overall believe the game was up, (70) but hedid believe things were 'vehemently' going in the wrongdirection. (71) I am sufficiently misanthropic to be able to imagine himat this time, in his late seventies, saying to himself: go aheadcontinuing to do what I am counselling you not to do and see where youend up. And, in the welfare state in the maximalist form it has taken aswe survey it 88 years after Dicey died, we have done it, and we haveended up somewhere like where he said we would.

Dicey's principal objections to collectivism were that itwould promote extensive, ill-advised improving projects that are'likely to cause huge loss, and it may be ruin, to England',(72) and will necessarily involve a 'marked decline' in'reverence for [the] rule of law. (73) These quotations are takenfrom the updating 'Introductions' he supplied in 1914 and 1915to the last editions he saw in print of his two great works on theconstitution. I want to quote at length one of these passages in thebelief that it will not be familiar to all readers:

 [I]t is more than possible that English legislation may ... combine disastrously the defects of socialism with the defects of democratic government. Any grand scheme of social reform, based on the real or supposed truths of socialism, ought to be carried out by slow and well-considered steps taken under the guidance of the best and the most impartial of experts. But the democratic idea that the people, or any large number of the people, ought to have whatever they desire simply because they desire it, and ought to have it quickly, is absolutely fatal to that slow and sure kind of progress which alone has the remotest chance of producing fundamental and beneficial social changes. Democratic legislation, on the other hand, ought to have the advantage of harmonising with, or at any rate not going much beyond, the public opinion of a given time. But this harmony between law and sentiment is easily contemned [sic] by socialists, who feel that they know better than do the electors of England what is really good for the English people. Hence it is all but certain that great changes planned by enthusiasts will, if they seem to be popular, be carried out with haste and without due consideration as to the choice of means proper to a given end, and, on the other hand, that on some occasions a party of self-called reformers will force on the electors changes which, whether good or bad, are opposed to the genuine convictions of the people. (74)

As we now live under a system of government which hasauthoritatively been described as having a 'chronic tendency tohyper-innovation' which has led to 'an age of fiasco',(75) who, other than a very staunch collectivist indeed, can nowmaintain that Dicey was entirely wrong about the changes to theconstitution that makes possible these grand schemes? But, if one wishedto describe the development of modern public law in a phrase, one wouldsay it has been based on maintaining precisely this. As a matter ofintellectual history, the twentieth century growth of collectivism inthe advanced capitalist countries no doubt is based on the developmentof welfare economics, put into modern shape by AC Pigou in 1912, (76)which gave a fundamental theoretical justification to piecemeal butextensive state intervention by means of transfers backed by coercion.Such extensive intervention has required a public law which normalisescoercion in the public interest. The process by which this has beenbrought about in respect of administrative law has been felicitouslydescribed by Harlow and Rawlings as giving the 'green light'to state action, as opposed to the 'red light' observed byDicey, (77) and it has involved ridiculing Dicey and those broadlytaking his position in the twentieth century, of whom Allen (78) andHewart (79) have been the most common Aunt Sallies. (80)

Whilst a sense of proportion must be maintained about this, thegreen light has involved unacceptable arbitrariness underpinned by aneven more unacceptable authoritarianism, to the point where the lateProfessor Griffith argued, to my mind convincingly, that what werecalled the liberal democracies can no longer be properly described assuch at all. (81) It is to Taggart's great credit that he drawsattention to an important aspect of this not typically noted in theleading works of the new constitutional and administrative law butrevealed in detailed accounts of specific parts of the welfare system:(82) the 'Kafka-like' (83) aspect of normal life for manyintended beneficiaries of the welfare state which undermines theirconception of their own selves. (84)

In my opinion, Dicey has been anathema to modern administrativelawyers because they have not placed the same value on liberty that hedid. There is a good reason and a bad reason for this. The good reasonis that modern public law works with a superior idea of freedom than didDicey. Dicey's views belong to what TH Marshall called the'civil' stage of the development of a full sense ofcitizenship, and the welfare state is our attempt to institutionalisethe 'social' stage. One way of understanding the relationshipbetween the stages which may be found in Marshall (85) is to say thatsocial citizenship is needed to make formal civil (and'political') rights, and therefore freedom, actual. I myselfthink it is a strong criticism of Dicey (86) to argue that his belief inthe efficacy of the remedies of ordinary law turns on an equation ofcivil citizenship with actual citizenship which is wrong, leading him tothink that tortuous liability for personal wrongdoing (87) could be'the primary means of calling officials to account', whichrightly has been called a 'deterrent theory of liability ... inwhich the deterrence is symbolic'. (88) The facile way he does thisdraws the plausibility it has from the, to contemporary eyes, incrediblesmallness of the size and scope of the government he had in mind, but,nevertheless, it is a rather puzzling attitude as, legal developmentsproper aside, his views must have been formed in a cultural atmosphereof which the Chancery of Bleak House and the Circumlocution Departmentof Little Dorrit were important constituents. (89)

But, turning to the bad reason, and if the anachronism may beexcused, Dicey had a clarity of view about what would be involved in thepursuit of actual citizenship which modern public law has quite wronglyfailed to appreciate. In the last edition of de Smith on which ProfessorStreet worked, the basic point that is urged against Dicey'sinsistence that the executive be 'governed by the same principlesapplied to ordinary citizens in private disputes' is that this'is impossible':

 Once government vests wider discretionary powers in public authorities and creates special tribunals outside the ordinary court system there are no private law principles which can be applied when the powers or proceedings of an authority or tribunal are called into question. Like it or not, the common law courts were forced to develop a system of principles of administrative law. (90)

I submit this is a petitito principii. What Dicey urged isimpossible only if we like the state we get with administrative law,but, of course, modern public law does '[l]ike it'. In theheroic mode which they adopt when they consider their actions, as itwere, constitutionally, administrative lawyers see themselves as opposedto executive power, ensuring, as Lord Denning put it in 1949, that the'welfare state' does not become a 'totalitarianstate' by ensuring that 'the new powers of the executive'are '[p]roperly exercised'. (91) But the heroic mode involvesa blindness about the workaday involvement of administrative lawyers inthe extension of the new, arbitrary powers, (92) the proper control ofwhich somehow seems never to be able adequately to be established, andso we are brought to where we are. The creation of modern administrativelaw has, as Professor Street tells us, been a process by which it hasbecome 'an accepted phenomenon in normal times' that 'ouractivities are interfered with or controlled by government in the publicinterest', and if there has been a distinct lack of interest inprinciple about this until relatively recently, this has been because a'yearning for certainty' based on the application of'strict legal rules' has not been uppermost in the minds of'administrators' who 'maintain that they cannot run themodern state like that' and want 'flexible''standards'. (93) This has yielded a law which 'has beenpragmatic, empirical, even adventitious', (94) but this isacceptable because '[w]e look to the state to provide us withsecurity and assistance in so many forms'. (95)

From Dicey's perspective, all this has the look ofinevitability. Nevertheless, Dicey has been roundly criticised for justnot seeing the issue, with his apparently acerbic conversational retortto a French legal academic that 'in England, we know nothing ofadministrative law, and wish to know nothing of it' doing signalservice in exposing him to ridicule in way one feels was intended by WARobson, a public lawyer of diametrically opposed inclination to Dicey,who brought it to wide attention. (96) But I think some feeling of guiltmust motivate this criticism, which is not merely exaggerated butegregious. Putting Dicey's great contribution to the founding ofcomparative law in the UK in general, and in relationship toconstitutional law in particular, (97) to one side, his views aboutvarious components of the omnium gatherum of what is now calledadministrative law were nuanced (98) in a way which will be foundsurprising by many of his critics, his approval in principle of'executive legislation' on a French model being a marked casein point. (99) In relationship to the issues that specifically concernus here, (100) Dicey himself, despite what is often said, (101) wasperfectly well aware that 'there had been built up since 1832 awhole scheme of administrative machinery', (102) in part becauseeven 'sincere believers in laissez faire [had] found that for theattainment of their ends the improvement and the strengthening ofgovernmental machinery was an absolute necessity', (103) and inpart because of the 'obviously and admittedly true' fact ofthe growth of collectivist government functions:

 During the last fifty years [prior to 1915], and notably since the beginning of the twentieth century, the nation as represented in Parliament has undertaken to perform a large number of duties with which before the Reform Act 1832 no English Government had any concern whatsoever. (104)

Dicey believed that it would be 'conceivable', up to apoint, that 'in a country such as England, where the strict rule oflaw had been for generations accepted by the people, a great number ofadministrative questions might, in the nineteenth or even the twentiethcentury, have been wholly left for their determination to the lawcourts'. (105) This is to say, even a considerable growth of thestate might be deplorable but tolerable. But this could be so only up toa point. Dicey not merely saw the 'distinct merits' of, inessence, efficiency to be gained by extending powers to the executivewhich were not subject to ordinary law, (106) but he believed it wasimpossible to extend the range of powers sought by collectivism withoutisolating their exercise from ordinary law, and thereby creating thearbitrary rule of administrative law in his pejorative sense. :

 when the state undertakes the management of business properly so-called, and business which hitherto has been carried on by each individual citizen simply with a view to his own interest, the Government ... will be found to need that freedom of action necessarily possessed by every private person in the management of his own personal concerns. (107)

Such freedom of action, backed by the state's power ofcoercion, is bound to create arbitrary authoritarianism (as well as havegood effects).

There is really nothing much that distinguishes Dicey'sposition from the position stated by the learned editors of de Smith incriticism of him, except the conclusion that is drawn. For Diceyinsisted that, as a technical matter if it may be put this way, a growthof arbitrary power and a loss of liberty were inevitable costs of theimproving policies of collectivism--this was one reason for his loathingof collectivism--but, unlike those editors, he was not prepared to meetthese costs. It was in the twentieth century, in laws such as theNational Insurance Act 1911 (108) and Local Government Board v Arlidgeof 1915 as he interpreted them, that Dicey came to believe that therewas being created 'in England a system bearing a marked resemblanceto the administrative law of France' (109) which 'saps thefoundation of that rule of law which has been for generations a leadingfeature of the English constitution'. (110) But, as I have said, hebelieved that the issue was undecided, and his last position seems tohave been that ultra vires, impeachment and enforcement by the ordinarycourts ('in some means or other' to be developed) of what'the spirit of judicial fairness and equity [and] the rules of fairdealing' would require of a government department's conductwould perhaps suffice. So long as 'the ordinary law courts can dealwith any actual and provable breach of the law committed by any servantof the Crown', this would still preserve 'that rule of lawwhich is fatal to the existence of true droit administratif'. (111)

In setting himself against administrative law as law other thanordinary law, Dicey, then, sought to prevent the growth of collectivismin a precise way it is important to appreciate. He not only sawadministrative law in the pejorative sense he gave it as a necessaryconsequence, but also, if I may put it this way, as a necessarycondition of collectivism, and so, by working against the development ofsuch administrative law, he believed he could work against thedevelopment of collectivism. Logically, he was right, but practicallyone might think this a rather forlorn effort, the stance of aconstitutional law Canute against the tide of economic forces which,standing on our copies of Das Kapital volume one and The GreatTransformation, we now can clearly see. But Dicey was well aware that itwas a background collapse of faith in laissez faire that was drivingmatters, (112) and we have seen that he cannot be accused of excess ofconfidence in the success of his attempt to make the limited and in asense tangential contribution a constitutional lawyer might hope tomake. It seems to me the height of cheek to blame Dicey for prejudicing'whole generations against administrative law in any form'(113) when, once his readers understand the 'sense' in whichhe meant administrative law, the 'paradox' of his denial ofadministrative law 'disappears'. (114) Robson's anecdoterelates to a conversation which must have taken place in the earliestyears of the twentieth century, and, at that time, Dicey could say thatthe English knew nothing of administrative law because, as he understoodit, they didn't. If his tone was acerbic, this can be put down tohis fear that in the near future they would.

In sum, Dicey could hardly have more strongly insisted that thegovernment should be confined within the framework of the'administrative law' he believed to be a very effective checkon arbitrary power, the ordinary law of the nineteenth centuryconstitution. (115) Those blaming Dicey for this have not clearly seenhis meaning because, being on the whole happy enough with a growth ofgovernment functions in the public interest, they have been sopreoccupied with this interest that they have almost sublimated the factthat departure from the ordinary law does involve the extension ofarbitrary power. Their own thinking ultimately involves a denial of theAustinian analytical connection between law and coercion in the generalclimate of tergiversation about this established by Hart, for it wouldappear that the public interest acts as a sort of moral whitewash forarbitrary power.

Professor Loughlin adds to the stock of superior criticism of Diceyin his essay in Taggart's Festschrift when he acknowledges that'Dicey may have been correct in his assumption that administrativelaw eroded the foundations of the post-1688 settlement'. But hegoes on to say that this 'simply pushes back discussion to ... morebasic questions', the first of which is '[h]ow does ahistoric, evolutionary constitution acquire normative status? Can suchimmanent normativity retain its authority in the light of social,economic and cultural change'. (116) This may be a criticism ofpublic law at some fundamental philosophical level, but how can it be acriticism of Dicey, who had no doubt about, and gave good reasons for,the normative status of the nineteenth century British constitution, andclear indications about what would be the result of collectivist social,economic and cultural change?

I do not doubt that Dicey was wrong about this in ways whichundermine his view of the constitution. It is a rare fair criticism ofDicey from the perspective of modern administrative law, which Loughlinforcefully restated in the paper I have just mentioned, that he (Dicey)seriously underestimated the role of 'administrative law', ofa type of which he could not have approved, in the nineteenth centuryconstitution he celebrated. We have seen that Dicey was not ignorant ofthe growth of administrative law involving a great expansion of statefunctions. 'Nor', he observed, 'is the importance of thisextension of the activity of the State lessened by the considerationthat its powers are in many cases exercised by local bodies, such, forexample, as County Councils', (117) because '[i]t should neverbe forgotten that powers given to local authorities are, no less thanpowers possessed by the central government, in reality powers exercisedby the state'. (118) This growth was part of a process I have saidthat Dicey found deplorable but was ultimately prepared to toleratebecause it did not involve the creation of an explicit droitadministratif. (119) It seems that Dicey was so preoccupied with thismark of the erosion of the rule of law that he did not place sufficientweight on the way that the growth, and, more important, centralisation(120) of local functions meant that, even in its absence, thosefunctions could not plausibly be said to be under the control of theordinary courts. As even now the great works of administrative lawwisely follow de Smith's counsel and do not attempt to'achieve a full mastery of the subject' because this'requires an encyclopaedic range of knowledge which is hardly worthacquiring', (121) one has to be careful about what exactly onethinks it reasonable to ask Dicey to say about the range of localauthority functions in the first modern attempt to describe the detailedlaw of the British constitution before one can pronounce oneselfdissatisfied with what he did. Nevertheless, Dicey's views on localauthority functions do seem to underestimate the significance of whatwas seen as an 'organised oligarchism' (122) by contemporarieswriting from Dicey's perspective.

Far more telling against Dicey, in my opinion, is his failure totake account of what he surely should consistently have criticised asthe arbitrariness inherent in the prerogative powers, for, as Harlow andRawlings justly put it, '[t]he state does not need to possessspecial powers "in its own name" if those powers are held bygovernment ministers acting in the name of the Crown'. (123) Onemight go so far as to say that modern administrative law has been anattempt to fill this 'gaping hole' (124) in Dicey'sconstitutional architecture, but even if this is so, the way it has beendone paradoxically has enormously expanded 'the capacity forexecutive action to regulate the economy free from effectiveParliamentary control', (125) and, the point I am arguing, Diceyshould play in an important role in our attempt to remedy this.

It is, of course, only by public lawyers that these matters areprincipally discussed through reflection on Dicey. By far the mostgenerally influential warning that the growth of collectivism will beharmful is that of the neoliberal movement in economics and politics,and its principal expression ('[t]he classic cri de coeur Taggarthas it (163 n 114)) remains Hayek's 1944 The Road to Serfdom. Thisis a book avowedly in the Diceyan tradition, bringing Dicey'slamentation of the decline of the English liberal tradition into the eraof the established welfare state. (126) Just like Dicey's greatbooks, The Road to Serfdom has, of course, been immensely successful inone sense, but a complete failure in another, for the growth ofcollectivism which it was intended to counter proceeded apace, and,writing of The Road to Serfdom in 1946, Orwell told us why this would beso in the peculiarly direct way so characteristic of him:

 Hayek's able defence of capitalism ... is wasted labour, since hardly anyone wishes for the return of old-style capitalism. Faced with a choice between serfdom and economic insecurity the masses everywhere would probably choose outright serfdom, at least if it were called by some other name. (127)

As it happens, Orwell's own depiction of the consequences ofchoosing serfdom in 1984 is, in my opinion, undermined by a failuresufficiently to link serfdom to the affluence serfdom bought, (128)which leads to a sort of excess of tyranny, more appropriate to thetotalitarian countries, in Orwell's account of Winston Smith'ssubjugation. Nevertheless, I do not know of any other advocate of thewelfare state who has put the trade-off between welfare and liberty inquite this clear a way, which rather illustrates his 'power offacing unpleasant facts'. (129) Richard Crossman'soutstandingly brave but utterly unfailing 1956 attempt to persuadesocialists to take Hewart seriously, (130) commendably cited by Harlowand Rawlings, (131) is the closest statement by a figure of realinfluence of which I am aware. (132) Socialists could say that theadvantages of social citizenship are so great that we should pay thecost of the growth of arbitrary power to obtain them, and perhapsputting it this clear way might have helped in achieving the necessarybalance between affluence and serfdom. (133) But we should not besurprised if frankness over this was rare and that there normally wasequivocation over the necessary cost. This has been expressed in whatHegel surely would have called the 'monotonous formalism' ofthe interminable number of attempts by Labour Party theorists andtheorists manque to strike a middle ground, (134) with'middle' doing miraculous work, which reached their nadir inMr Blair's (135) and Lord Giddens' 'third way'.(136)

One ground on which this equivocation could be based is of greatimportance to us. In his 1945 response to The Road to Serfdom, EFMDurbin, one of the most distinguished and influential economists of thenascent welfare state, rather disparaged Hayek for insufficientlyappreciating the strength of the British tradition of liberty, whichmeant that:

 in this country we have no need to fear the development of a centralised administration. We have a long tradition of increasing democracy combined with the growing activity of the State ... it would be a thousand pities if [Hayek's argument] should lead any of us to doubt our power to combine freedom with [social] security and science with flexibility in the conduct of our economic affairs. If we have "economic planning" it will ... fulfil the wishes of our people. It will be the servant of our freedom and will bring another part of our common life within the control of our social wisdom. (137)

Now, this is a rather ill-directed charge to level at Hayek, whoseentire political thought was, as I have said, an attempt to restatenineteenth century liberalism for the twentieth century, and whosefundamental lament in The Road to Serfdom was that the British were nolonger being true to their strengths. But, even if we allow thatDurbin's confidence had some purchase at the time it was made, atthe time of the creation of Beveridge's welfare state, what Durbinwas wrong and Hayek right about is that the strengths of the Britishpolitical tradition on which Durbin relies are strengths whichcollectivism inevitably works against. Though I will not argue it here,leaving the reader to take it for what it is worth, it is my view thatthe experience of the maximalist welfare state has shown that positiveand negative liberty, civil and social rights, and freedom and socialjustice are, choosing my word carefully, inimical, and this places apersistent tension at the heart of the institutions of the welfare stateand our thinking about them, including administrative law and ourthinking about it. (138)

This tension has been relieved in the case of administrative lawbecause, until recently, the sacrifice of legality for effectiveness hasnot been sufficiently regretted during a period in which, as the studentof regulatory theory has so far seen perhaps more clearly than thepublic lawyer, (139) the advance of the public interest by means of softlaw 'draws gasps of admiration for the efficiency of what is ineffect lawlessness'. (140) To the extent this is so, Durbin couldnot consistently say that the British political tradition will protectone and then go on to undermine that tradition, or, at least, it hasturned out that he would not have been able to do so over the middle andlong terms. It is as if Durbin were sawing away the branch on which hesat, whilst not realising he had a saw in his hand. The link that Hayekstressed between executive contempt for the rule of law andirrationality in policy formulation has been graphically illustrated bythe normalisation of government failure in the hyper-innovative state.But, although developed by Hayek and others in economic andphilosophical ways which are of a sophistication which rather starklycontrasts with the period artlessness of Dicey's views on laissezfaire, the fundamental issues are stated by Dicey.

The constitutional significance of abuse of rights

In a sense, the mischief at which Simpson's lecture andTaggart's book are directed may not be a great one for it must bequestioned whether the mischief which a private law doctrine of abuse ofrights is to remedy exists at all. (141) Taggart tells us that BvP is'seldom cited' (195), and, when he reviews the common law (chs6-7), he draws on some fine scholarship to show that common law andequity are replete with conditions for the exercise of rights thatamount to specific limits on abuse of rights or, to put it the other wayaround, amount to requirements of good faith. It seems strange butcharacteristic that Taggart spent a great deal of time adopting Haar andFessler's use of certain private law good faith requirements to theregulation of public bodies (142) without asking how it was possible forthe private law to do this for those bodies and not for itself. In thelaw of contract and tort with which I am familiar, there is, in myopinion, no such thing as the 'unlovely Pickles doctrine'.(143) In respect of the use of land, I myself believe that the law ofnuisance, based as it is on a balancing of opposed legitimate interests,can readily do the work done by abuse of rights, indeed can hardly avoiddoing so, although Taggart does not seem to think this (188-91) andSimpson certainly does not, (144) which is something that gives me greatpause. There do, however, seem to be particular problems arising fromthe physical nature of underground water flows, (145) which I willignore, though, in a most interesting fashion, they may make these flowsof water refractory to regulation by a law of land.

For our purposes here, all this is by the by. Having noted in hisessay on 'The Province of Administrative Law Determined?' that'there are many doctrines in the common law (quite a few of whichhave an equitable origin) which place limits on private law'sinstinctive privileging of self-regarding behaviour', Taggart wenton to say that 'legislative interventions are even more numerousand invasive'. (146) And surely the most important issue is that wemust evaluate abuse of rights knowing that since, BvP, '[s]uccesivewaves of regulatory legislation have left little room for[self-interested] behaviour' (193).

BvP really speaks not to direct reform of the law of abuse ofrights but to an attitude to the relationship of citizen and state whichinforms our conception of the relationship of private and public law. Inparticular, one now has to ask whether it is now wise to seek further toadd to the extensive powers of government under primary and secondarylegislation by having a background sweeping up doctrine of abuse ofrights. Recognition of the problems of doing so may be traced back atleast to Blackstone, (147) but they were set out for moderns by FHLawson in 1950:

 it is clear that as soon as the theory of abuse of rights passes the stage where subjective malice is the sole test, it is really a socialist doctrine. It implies that a man's right is no longer, as it were, a sphere within which he is sovereign, over which he may dispose according to his own view of his interests and his ideas of right and wrong; it is to be subject to the control of society in the person of the judge, who exercises his a veto over his decisions in accordance with what he considers to be the purpose for which society has conferred the right. (148)

Taggart (158) cites this passage, and his scholarship allows him toidentify another to similar effect but expressed in more florid languageby HC Gutteridge, (149) Reader and then Professor of Comparative Law inthe University of Cambridge between 1930-41, whom Bernard Ruddendescribed as 'undoubtedly' 'the most influential academiccomparatist' of the period between the wars. (150) Apart from someslighting language,

Taggart engages with these passages only by making reference to a'more balanced' treatment of social limits upon private rightsin a 1934 commentary by VE Greaves, a Russian emigre lawyer, upon theSoviet Civil Code! One cannot doubt that this Code made the socialontology of private rights in land more clear than did the nineteenthcentury common law, but we should not allow ourselves to be made dizzywith the success of this argument against 'insularindividualism'. For surely this clarity was bought at a cost, oneinsisted upon by Greaves.

Having noted that the frankly political dominance of the courts bythe Soviet government 'deprives the administration of justice bythe Soviet courts of the stability which is a typical attribute ofjustice in all noncommunist countries', Greaves fatefully predictedthat it was 'not impossible to surmise that the Soviet governmentwill suddenly adopt a new social or economic policy materially differingfrom the present social-economic aims of the Soviets, and as a result,all rights lawfully acquired under the now existing policy may be leftwithout protection, if their exercise should no more correspond to thenew social or economic purposes of the state'. (151) After thechaos of the initial attempted revolutionary restructuring of theRussian economy, the Bolsheviks were obliged to retreat to a period ofsubstantial acceptance of capitalist economics under the 'NewEconomic Plan'. This period of relative quiet and success involvedlimited interference with the ownership of agricultural holdings. It isthis period that Greaves reviewed in his paper. His predictions of thefuture were to be borne out by the forced collectivisation ofa*griculture, to which, of course, rights in land recognised only in sofar as they served the public interest, were no obstacle at all. In thefirst sentence of the paragraph Taggart otherwise quotes, Lawson hadreferred to, precisely, the Soviet Code as 'probably''the most famous statement' of the principle of abuse ofrights, which, Lawson had said in an earlier version of this discussion,'has its natural affinities with public rather than privatelaw'. (152)

I am not making the ridiculous and distasteful accusation thatTaggart, or the strain of administrative law he represents, wouldendorse anything like collectivisation, but I am asking where thestopping point in the trumping of the individual interest by the publicinterest is? Just consider Simpson's attitude to the irritation ofthe boy scout. What sort of 'communitarian' (153) regulatoryregime does Simpson have in mind that would actually ground realisticlegal prevention of this bad behaviour? (154) Sadly, we have examples ofthe answer, and not merely in the fiction of Orwell. Taggart came to BvPwith the intention of throwing it down and with it the distinctionbetween the public and private law as he understood it, and though, tohis credit, he did not carry this through, he does not supply thisstopping point in a theoretically defensible manner. It is to this thatI now turn.

The public interest and the feint of the state

Taggart's writings on public law, which can be traced back toa prize winning paper on administrative tribunal procedure published in1981, are very markedly the product of their time because almost all ofthem are dominated by a concern to oppose the privatisation andmarketisation of much of the service provision which the maximalistwelfare state had taken to itself. Perhaps the most striking instance ofthis is that, when called on to write a chapter on 'The Nature andFunctions of the State' for a work of reference, he did not seek toprovide the Rechtstheorie for want of which Dicey has been so oftencastigated, but a prolonged criticism of the new public management!(155) This intensity of focus might be explained by the fact that theNew Zealand experiment with 'Rogernomics' arguably was themost jarring, if this is a strong enough word, experience of new publicmanagement in the advanced capitalist countries, as Taggart'scolleague in the Faculty of Law at Auckland, Professor Jane Kelsey, hasmade clear in an internationally influential body of work. (156)Concluding that the argument against the new public management had beenin an important sense lost, Taggart argued for continued governance ofprivatised services, such as the water supply, by public law principles,and he was hardly alone in believing this made it urgent to attack thedistinction between private and public law in the way we have seen inhis essay on 'The Province of Administrative Law Determined?'His attack on BvP was given particular impetus by the way he thought itmight well sanction the removal of the particular obligations of publiclaw from privatised services: '[o]n the hoarding around the levelplaying field ... one can imagine the great graffiti artist'sdeviant scrawl "Pickles Rules Okay"' (200).

In a paper on 'British Socialists and the BritishConstitution' which has greatly influenced my thinking on thesematters, Anthony Wright has shown just how happy were the leadingtheorists in and around the Labour Party with the latitude the electivedictatorship allowed them to pursue the public interest as they definedit. (157) They 'had a crash constitutional education' in the1980s as they witnessed 'Mrs Thatcher's march through theconstitution'. (158) If one substitutes David Lange for MargaretThatcher and Roger Douglas for, say, Keith Joseph, one can say thatTaggart got his own constitutional education in this way, and hiscentral concern has been to get lawyers, who '[a]s a group ... wererather slow to appreciate the impact of these changes [and] the threatto their subject posed by "the contracting state"', (159)to face up to that threat. This is so in a way which it is uncomfortablebut essential to note.

Taggart's very strong criticism of the new public managementof course implies that the old public management based on extensivedirect provision was better, and, indeed, he very much believed this wasso. I do not doubt he was right, but I must depart from the way he sawthe issues. Having embarked on the reinvention of administrative law,Taggart has said disparaging things about Wednesbury, (160) ultra vires,(161) etc, (162) but, except in relationship to its becoming clear howlittle the old ways offered the leftwing administrative lawyer opposedto the new public management, these were persuasively measuredcriticisms which led to Taggart insisting on the need for a concept ofjudicial deference appropriate for the era of social rights (163) whichappeals even to one like myself who sees this era as a bout ofself-indulgence by those enamoured of the administrative law of humanrights which will either create a lot of mischief or be seen to be areinvention of the wheel. Taggart does not, in fact, seem much disturbedby what went on under the old public management. His reviews of thesubject are basically paeans to the likes of Robson, (164) who, if hewas subjected to the same standard of criticism as Dicey has been, wouldwidely be called an apparatchik, and, in a paper in the Festschrift forSir William Wade which I read with some amazement, Taggart reviews theUK and Commonwealth law of compulsory purchase prior to Thatcher andfinds nothing much to complain about! We are told that the'administrative law doctrine of ultra vires has been a potentweapon in ensuring private property is only taken for authorised publicpurposes', (165) and, in sum, that the 'leitmotifs in SirWilliam Wade's work--resisting arbitrariness and preservingindividual liberty--can be seen at play in this area'. (166)

There is a passage in Wade's Administrative Law which Taggartquotes repeatedly throughout his work, including in PPARVE (199-200),which is too long and too familiar to quote here in full but which hasBvP in mind when it contrasts the 'unfettered discretion' ofthe private actor with the restraints on a public authority, to which'unfettered discretion is inappropriate' because such anauthority 'possesses powers solely in order that it may use themfor the public good'. (167) Taggart finds this so congenial apassage because he has a naive belief in the self-certifying worth ofthings done, not in the pursuit of self-interest, but in the publicinterest. This reaches a point which brought a wry smile to my face atleast in Taggart's well known 'list of public law values'which 'includes openness, fairness, participation, impartiality,accountability, honesty and rationality'. (168) His omission of thecore value of administrative law--the extension of government powerwithout too punctilious a regard for any or all of the preceding valueswhen they are believed to hamper pursuit of the public interest--isunaccountable unless one sees just how great was his belief in thatinterest. His entire work is motivated by the belief that 'more isexpected of the state' than of private action, but, whilst onehopes that this is so, Taggart does not seem to be aware that, thoughthe criticism of government failure does not fail to point out instancesof want of virtue on the part of those holding power, (169) thefundamental criticism is of virtue itself, for that an effort to act inthe public interest is made with virtuous intent is a necessary but notremotely a sufficient condition of success in doing so. When Hegel toldus that, with Robespierre, virtue was a serious matter, he (Hegel) wasnot pointing to a viable form of politics.

In his work on expropriation, Taggart is happy if the working ofadministrative law has ensured that taking took place only when it wasin 'the public interest', as if this was the end, rather thanthe start, of the problems. I believe BvP is an illustration of theseproblems. Nevertheless, in the 'Epilogue' to PPARVE, Taggartsuggests that the Appeal Courts in BvP, perhaps influenced by a notionof 'the equality of state and citizen ... so admired by AV Dicey(97), were wrong to construe s 49 contra preferentum against theCorporation, because the Corporation was not the Company:

 The fact that the original adventurers (who had established the [C]ompany for personal gain) had sold out to the local municipality, which was a creature of statute and guardian of the welfare of its inhabitants, was not treated as relevant ... Any public interest in the continued supply of water to Bradford was trumped by Pickles' absolute property right (198).

That Taggart can maintain this after what he has shown of theconduct of the Corporation of Bradford is worthy of discussion onlybecause his influential views are what Louis Althusser would have called'symptomatic' of a most important attitude towards the publicinterest which I hope to criticise here, in essence, a bias towardsbelieving that 'public' equals 'good'. The problemsof virtuous action backed by coercive powers, identified by Dicey, arethat it may lead to a vanguard, authoritarian lack of respect for theopposed views of others in the belief that this disregard is in their(via the collectivity's) interest, and that, in this disregard,avoidable policy mistakes can and will be made. The twentieth centuryhas far, far worse cases of this than the growth of the arbitrary andfoolish exercise of executive power in the welfare state made possibleby administrative law, but the maximalist welfare state is a case of it.

And, entirely contrary to Taggart's view, this has got worseover the last thirty years. Taggart's concern to somehow preservegovernance in the public interest over privatised or marketisedprovision can now be seen to misunderstand what the new publicmanagement has actually meant. In my opinion, the undoubtedly extensivereengineering of the technique of public management never called intoquestion the role of the national state, and the development ofquasi-markets as a response to the initially successful neoliberalcritique of government failure has meant that the national state has not'contracted', (170) been 'hollowed out', (171)'retreated', (172) or 'shrunk' (173) since the1970s, much less come to an 'end'. (174) After a period ofinitial retrenchment, the share of gdp under state management in theadvanced capitalist countries had actually increased (prior to theimmense deficits incurred in response to the credit crunch), (175) butmuch of that management is now of a quasi-market form, the change oftechnique having proven to be a most effective way of (to adapt afelicitous phrase) 'bringing the state back in'. (176) Thestate has, very successfully, not retreated in the face of theneoliberal critique, but feinted away from it, and resumed growth. Ihave argued this point in terms of regulatory theory elsewhere, (177)and I am happy to abandon the argument I had drafted in terms ofadministrative law for this paper because in an, in my opinion,pathbreaking essay in Taggart's Festschrift that must provoke afundamental shift in administrative law theory, Professor Harlow hasshown 'that colonisation of the private by the public is the truecharacteristic of contemporary government and that the state, far fromceding power to the public sector, was everywhere active behind thescenes'. (178)

I will give only one brief illustration here. Rawlings has recentlyexamined the attempt to introduce a partial but very substantialprivatised element into the running of the London Underground. Herightly describes this, 'the UK's flagship scheme' ofpublic/private partnership, as a 'spectacular failure' andhopes that 'lessons are learned about the functional limitations ofcontractual ordering and the importance of vindicating public law valueslike transparency and accountability'. (179) But, of course, the'contractual' verdict on running the Tube in its modern formis that one shouldn't do it. What is meant by saying the Tube is aninstance of the public good variant of market failure is that the marketwould not do it, and this is why the Tube since 1933 has effectivelybeen a public concern. And when the pressures on the public running ofthe Tube, manifested in familiar deferred 'long-term maintenanceand renewal' and 'worst-case instances of conventionalprocurement' (180) that left the late twentieth century Tube withthe 'ageing (commonly Victorian) infrastructure', (181) thedeficiencies of which were brought to general attention by the KingsCross fire, there seemed to be no way of getting the requisite financetogether for an adequate response on the basis of continuing to run theTube as a purely public concern, the public/private partnership wasdevised. It just is not accurate to regard this as a private matter. Theentire thing was driven by a public authority in defiance of the marketverdict on the Tube, with a non-market outcome sought and the conduct ofthe project stipulated in detail by that authority. It is, in myopinion, the principal shortcoming of regulatory theory, and of both thenew public management and its public interest critics, including thosein administrative law, that it just is not understood that that onecannot create a 'market' to realise a social goal postulatedby the state, for the essence of a market is that it produces order inthe absence of such a goal, and the imposition of such a goal destroysthe market. (182)

What annoys Rawlings is that a new form of management was adopteddespite it being able to be predicted that it would be worse than theold, but that this form departed from what the market would have doneand what would have been done on old public administration principlesand practices does not stop this being a new form of public management.Financial sense, accountability, etc are casualties in this episode, butthey were casualties of the public sector trying to expand itsactivities, not merely beyond the limits of the market but beyond itsown previous limits, and I am at a loss to understand how administrativelawyers, and their fellows in the other theoretical enterprises of themaximalist welfare state, fail to see this. Administrative law has been(183) based on breaking down the Diceyan limits to executive power. Inthe new public management, it has perceived its own self as a limit, andhas pretty successfully broke itself down. That this is regarded as acriticism of the private sphere just shows the extent of the theoreticalproblem that has beset regulatory theory in general and administrativelaw in particular, which, if the unfairness to certain distinguished,honourable contributors who are exceptions be allowed, has typicallyfailed to look its essential role in the great extension of arbitrarypower in the face.

Conclusion: Socialism, citizenship and the crisis of the welfarestate

I believe Taggart started on his researches into BvP with theintention of showing it was wrong, for he came to the case wishing tofurther tip the balance for the claimed public interest against theprivate interest. In the course of his researches, he began to see thatthis was unwise, and, whilst he never sorted out his thoughts on this,leaving his book something of a tangle at the end, and not developingthe reform of BvP in his subsequent public law works, he rightly andcommendably all but abandoned his initial intention. He concentratedinstead on the nature and scope of administrative law, which was, as itwere, to look at things from the opposite direction, which was morecongenial to him. But his lack of enthusiasm for actual reform of thelaw of abuse of rights after writing his book was not really carriedthrough to his theoretical position on the clash of values involved inthe distinction between public and private law, for the appeal of adoctrine of abuse of rights in the abstract at least never waned for onewho retained his naive belief in the public interest.

As it has been developed in its maximalist form, the welfare statehas not known, continues not to know, and cannot know, any principledbounds. When Dicey wrote the first edition of An Introduction to theStudy of the Law of the Constitution, the state consumed 9% of gdp. WhenPigou wrote the first edition of The Economics of Welfare it consumed13%. When Marshall wrote Citizenship and Social Class it consumed 32%.Prior to the response to the credit crunch, it consumed almost 50%. Thatresponse will take it well in excess of 50%. This has to stop, but onecannot see how as the welfare state has failed to confine itself to theminimalist provision of welfare floors and is beset by a maximalistclamour for the satisfaction of social rights which knows no theoreticallimit. The results of this have been pretty much as Beveridge said theywould be: 'to give by compulsory insurance more than is needed forsubsistence is an unnecessary interference with individualresponsibilities. More can be given only by taking more in contributionsor taxation. That means departing from a principle of a nationalminimum, above which citizens shall spend their money freely, andadopting instead the principle of regulating the lives of individuals bylaw'. (184) All one would add is that Beveridge did not makeexplicit here what he certainly knew, (185) that the law which woulddevelop would principally be the administrative law of the maximalistwelfare state.

Now, Beveridge's welfare state has been in one crisis oranother for longer than I have been alive--Marshall gave 1952 as thedate of its first. (186) But, recognising the possibility of cryingwolf, I do still wish to state that, if they wish the welfare state tosurvive, its citizens must now appreciate that social citizenship hascosts as well as benefits, and is a matter of duties, especially theduty of restraint, as well as of rights. In particular, they mustreassert the primacy of the private in the allocation of economic goods.Whilst, even before the current acute worsening of the situation, thefundamental problem is the fiscal burden of a system that knows nolimit, another grave problem is a loss of liberty. This is inevitablebecause the welfare state rests on coercion, and, whilst it would bewholly wrong to say that the coercion has not been subject to control,it is essential that those on the left now develop a principledopposition to 'the growth of a powerful and uncontrolledsurveillance state' (187) which they have played the main part infostering.

I am aware that I have allowed a personal note to intrude upon thispaper in a way not normally thought proper in academic writing. I mustbeg the reader's further indulgence because I am afraid I am nowgoing to conclude by deepening this personal note. I write as asocialist whose views are a, I hope not unmediated but certainly clearenough, reflection of his having been born in 1958 into a working class,mining community in the North East of England. My family, most of thefriends of my childhood and adolescence, and myself have been greatlyenriched by the welfare state. A necessary condition of my now being anacademic writing this paper was my being provided with a very heavilysubsidised grammar school, undergraduate and postgraduate education bythe welfare state. I write this paper because I wish to defend thewelfare state. But the way now to defend it is to shrink it. We will notdo this whilst we maintain the approvingly naive attitude towards yetfurther, indeed unlimited, extension of the state which would beembodied in the adoption of a doctrine of abuse of rights. Lawson wasright to criticise this attitude as socialist when socialism wasidentified with statism. Socialism now requires the revival of a Diceyanrecognition of the cost to liberty of collectivism which will allow usto look the problem of virtuous authoritarianism and government failurein the face and shrink the state in response to it. But I find thiscongenial as, in my opinion, the only possible justification forsocialism has ever been that it is necessary, as Orwell said in 1940, to'preserve and even enlarge the atmosphere of liberalism'.(188)

David Campbell, Durham Law School, Durham University UK (1)

(1) I am grateful to Gary Armitage, Richard Mullender, ColinMurray, Brian Simpson, Warren Swain and Gary Wickham for their comments.This is the second time Brian Simpson has shown great generosity byassisting me to formulate criticisms of his own work, and on thisoccasion he has asked me to emphasise that he is not, of course,responsible for the views expressed in my paper, and to explain that hisSelden Society Lecture, given at a late afternoon meeting of thesociety, was not an occasion at which it would not have been appropriateto raise the refinements and qualifications which might well have beenmade to the arguments advanced in it

(2) The Mayor, Alderman and Burgesses of the Borough of Bradford[1894] 3 Ch 53 (ChD); [1895] 1 Ch 145 (CA); [1895] AC 587 (HL).Hereinafter this case will be referred to as BvP.

(3) M Taggart, Private Property and Abuse of Rights in VictorianEngland: The Story of Edward Pickles and the Bradford Water Supply,Oxford, Oxford University Press, 2002. Hereinafter this book will bereferred to as PPARVE and references to it will be made, unattributed,in parentheses in the text.

(4) Though the first important example probably was Danzig's1978 The Capability Problem in Contract Law, what Taggart followsNyquist in calling 'single case scholarship' is, as Taggartrightly says (195 n 1), 'known around the world as "doing aSimpson"', in proper acknowledgement of Simpson's masteryof the form. In the US particularly, this approach has come to be knownas 'legal archaeology': D Threedy, 'Legal Archaeology:Excavating Cases, Reconstructing Context' (2005-6) 80 Tulane LawReview 1197. With respect, Professor Threedy ibid, 1198 is wrong to saythat Simpson 'coined' this phrase. Simpson tells us (AWBSimpson, Leading Cases in the Common Law, Oxford, Oxford UniversityPress, 1995, 12) that it was suggested to him by Professor PeterFitzpatrick, who has personally confirmed to me that he did indeedhimself invent this term.

(5) AWB Simpson, Victorian Law and the Industrial Spirit, London,Selden Society, 1995. Hereinafter this lecture will be referred to asVLIS.

(6) Simpson is very generous in his comparison of Taggart'sand his work in his General Editor's Preface to Taggart's book(vii).

(7) This account is based principally on Taggart's book,supplemented by reference to the reported cases, Simpson's paper,some of the accounts of the Bradford water supply to which one is led byTaggart, and my own local knowledge supported by reference to theOrdnance Survey mapping. Taggart's account differs fromSimpson's in ways which are sometimes very significant but which,with one exception, I shall pass over silently.

(8) A substantial part of the land of East Many Wells Farm was tothe west of the mouth of the spring used for the Bradford water supply,and Taggart expresses puzzlement at the Farm's name (12 n 30).Unless my reading of his book is faulty, he seems to be unaware thatthere is a West Many Wells Farm half a mile to the west of East ManyWells Farm, and, most understandably, he does not fully appreciate (8 n19) what I know from personal experience to be the case, that in wetweather this area is peppered over more than a mile with welling, insome cases spouting, springs. If, as I presume, this is the reason forthe name Many Wells, this would seem to reconcile the name and the siteof the Farm. The information about the name of the spring provided byVLIS, 9 n 15 does not support my speculation.

(9) Taggart formed such a view of Mr McGowen's character thathe (Taggart) believed that McGowen would not have baulked at pursuingcriminal proceedings against Pickles if blackmail in the legal sensecould have been argued, but, so far as he (Taggart) could say, hethought that, on the contemporaneous law, this could not be argued(43-4).

(10) VLIS, 12 notes Mr McGowen's attitude.

(11) BvP (Ch D), 60, 63.

(12) VLIS, 10-2.

(13) AWB Simpson, 'The Timeless Principles of Common Law:Keeble v Hickeringill (1707)', in Simpson above n 4, 45, 74.

(14) In work going back to 1940, Lawson raised doubts about whetherthe facts of BvP showed malice: FH Lawson, 'Notes on the History ofTort in the Civil Law' (1940) 22 (3rd ser) Journal of ComparativeLegislation and International Law 136, 162, 165 and FH Lawson, TheRational Strength of English Law, London, Stevens, 1951, 117. Lawsonhimself was clearly of the opinion that Pickles was not actingmaliciously in the sense of fruitless spite but with the purpose offorcing the corporation to buy him out: FH Lawson, Negligence in theCivil Law, Oxford, Clarendon Press, 1950, 17.

(15) Taggart cites Lawson to the effect that '[i]t is arguablethat Bradford Corporation failed merely because it could find notappropriate form of action' (191), with the strong implication thatthis was a merely technical argument (152-5), 'worthless',Lawson tells us, in Scots law. But the 1940 paper in which Lawson saidthis concludes with the observation that the then House of Lords mightwell have built on the Scots position over abuse of rights,'[t]hough not, perhaps, on the actual facts of the Picklescase': Lawson, 'Notes' above n 14, 165 n 3.

(16) Simpson above n 13, 73.

(17) VLIS, 15.

(18) ibid, 16-7.

(19) ibid, 5, 7.

(20) ibid, 6-7, quoting Comm II, 2. In my opinion, Simpsonoverstates the extent to which Blackstone actually treated propertyrights as absolute, but reasons of space prevent further discussion ofthis. Taggart raises the relevant issues (109-10).

(21) VLIS, 7; quoting Comm I, 139-40.

(22) ibid, 9, 3, 8.

(23) ibid, 6-7.

(24) RH Coase, 'The Problem of Social Cost' (1960) 3Journal of Law and Economics 1.

(25) AWB Simpson, 'Victorian Judges and the Problem of SocialCost', in Simpson above n 4, 163, 195.

(26) AWB Simpson, 'Coase v Pigou Reexamined', in GKorngold and AP Morriss, eds, Property Stories, New York, FoundationPress, 2004, 9.

(27) I do not wish to enter into discussion of the wider issueshere, but I will mention that Coase has accepted some of the specificproblems with bargaining solutions that are raised by BvP in RH Coase,'Blackmail' (1988) 74 Virginia Law Review 655, 671.

(28) M Taggart, 'The Province of Administrative LawDetermined?', in M Taggart, ed, The Province of Administrative Law,Oxford, Hart, 2007, 1, 20.

(29) BvP and Allen v Flood [1898] AC 1 are cited here.

(30) Taggart above n 28, 17.

(31) Robert Edric is the pseudonym of Gary Edric Armitage. I amvery grateful to Mr Armitage for answering questions about his book.

(32) R Edric, Gathering the Water, London, Doubleday, 2006. Edrichad discussed this theme in 1994 in The Earth Made of Glass. Therecently published Salvage makes up what Edric himself, though not yethis critics, calls his 'flooding trilogy'.

(33) Edric calls his setting the Forge Valley. There is a ForgeValley in North Yorkshire, but it is not the fictional valley ofEdric's imagination, which is situated in or near the Nidderdalesytem of reservoirs which were developed principally to serve Bradfordand Leeds and which finally made Many Wells much less important (21).Another reservoir serving Bradford and Leeds just to the south ofNidderdale, Thruscross, was created in 1966 by the drowning of West End,a village already largely abandoned for other reasons. During the'droughts' of 1989 and 1990, the reservoir's level fellso low as to reveal the village, which, most eerily, one was able towalk through. Peter Robinson's crime novel, In a Dry Season, turnson the discovery of a body when the waters recede from his fictionalisedversion of West End.

(34) Edric loc cit, 9.

(35) ibid, 56.

(36) ibid, 58.

(37) ibid, 89-90.

(38) VLIS, 6.

(39) Taggart cites WA Robson in order to pass an excoriatingverdict on the performance of the Company in supplying water (18 n 53),but he makes no investigation of the performance of the Corporation,pointing only to a noted local historian's bare statement of abelief that the public acquisition was a great achievement (20). Myvestigial research into the matter does lead me to think thatTaggart's account of municipalisation has some of the quality of apublic interest variant of Whiggism; shall we call it'Webbism'? I repeat, however, that I do not doubt that publicacquisition of the supply was overall a good thing. The best account ofthe municipalisation of the supply I have been led to by Taggart to AElliott, 'Municipal Government in Bradford in the Mid-nineteenthCentury', in D Fraser, ed, Municipal Reform and the IndustrialCity, Leicester, Leicester University Press, 1982, 111, 118-22 and thePhD on which it is based.

(40) The defendant's grandfather also mined coal prior to theconnection of Many Wells to the Bradford supply (23).

(41) BvP (Ch D), 68. I repeat that I do not want to enter into thediscussion of the absolutist interpretation as precedent, but the readermay be interested to note that, shortly before BvP, North J had found nodifficulty in issuing an injunction against a householder who bangedtrays together to annoy his music playing neighbour in Christie v Davey[1893] 1 Ch 316. This nuisance case was not cited to him in BvP. Theissues are discussed by Taggart (179-80).

(42) 5 and 6 Vict ch vi.

(43) 17 and 18 Vict ch cxxiv. The copy of this Act I have used isin a publication prepared by the Bradford Corporation setting out theLocal and General legislation relevant to the municipalisation of thesupply: The Acts Relating to the Transfer of the Bradford Waterworks tothe Bradford Corporation, Bradford, Firth and Field, 1856. Thispublication is available via Google Books. s 49 is at 173.

(44) VLIS, 14.

(45) B Rudden, 'Comparative Law in England', in WE Butlerand VN Kudriatsev, eds, Comparative Law and Legal System, New York,Oceana, 1985, 75, 83.

(46) In his General Editor's Preface to J Getzler, A Historyof Water Rights at Common Law, Oxford, Oxford University Press, 2004,vi.

(47) In my opinion, there was a third mistake, for the terms onwhich the Corporation later settled with the defendant's fatherleft them open to the defendant's later actions, and I should havethought it arguable that the Corporation should have done more at thattime to secure its interests.

(48) BvP (ChD), 56-7.

(49) VLIS, 16. Simpson also conveys Mr Watson's belief, whichTaggart shows was doing the rounds in the Corporation, that the Picklesfamily had lain low by not objecting to their not being included in theregister of interests under the 1842 Act in order to be able later toblackmail the company. Taggart shows this to be completely implausible,not least because objecting to the provisions of a Local Act would havebeen impossibly expensive (13, 27, 94). On the other hand, Taggart alsoshows that the accusation (noted by Simpson loc cit) that the companywas attempting to avoid expense by not buying out the Pickles family wasequally implausible (94-6). It seems we are just dealing with a mistakewhich, even with the benefit of Simpson's and Taggart'sresearch, cannot be satisfactorily explained..

(50) VLIS, 12.

(51) Mr McGowen thought Pickles was behind the newspaper commentary(43), and, for reasons on which I will not expand, this seems plausible,but it does not substantially diminish the point made.

(52) It is mere speculation on my part, which is not directlybacked up by anything in Taggart, but I should have thought theCorporation's stupidity really was enormous because its refusal ofthis compromise effectively ensured it would lose in the House of Lords.It may be significant in this regard that their Lordships did not findit necessary to call upon Pickles' counsel (62).

(53) Taggart exactly says that '[t]he Corporation could notadmit to being duped in 1854'. On what Taggart shows us, I am mostunsure that any party 'duped' the Corporation save itself,but, if it was duped, it was by the Company, not Edward Pickles. I thinkTaggart is using 'duped' in an unusual way.

(54) VLIS, 14-5.

(55) It is inconsistent of Simpson to have the Corporation wishingto avoid this expense and yet give weight to the far fetched possibilityof Pickles, a private person of limited means, opposing the Bill were itintroduced.

(56) VLIS, 17.

(57) ibid, 18.

(58) Congreve v Home Office [1976] QB 629.

(59) M Taggart, 'The Peculiarities of the English: Resistingthe Public/Private Law Distinction', in P Craig and R Rawlings,eds, Law and Administration in Europe, Oxford, Oxford University Press,2003, 107, 114.

(60) ibid.

(61) M Taggart, 'Common Law Price Control. State-ownedEnterprises and the Level Playing Field', in L Pearson et al, eds,Administrative Law in a Changing State, Oxford, Hart, 2008, 185.

(62) R Rawlings, 'Distinction and Diversity: Law and theLSE', in R Rawlings, ed, Law, Society and Economy, Oxford,Clarendon Press, 1997, 1, 7.

(63) RA Cosgrove, The Rule of Law: Albert Venn Dicey, VictorianJurist, London, Macmillan, 1980, 22.

(64) G Orwell, 'Rudyard Kipling', in All Propaganda isLies, Complete Works, vol 13, London, Secker and Warburg, 150, 151.

(65) AV Dicey, Lectures on the Relation Between Law and PublicOpinion in England During the Nineteenth Century, Indianapolis, LibertyFund, 2008, 312-3.

(66) D Sugarman, 'The Legal Boundaries of Liberty: Dicey,Liberalism and Legal Science' (1983) 46 Modern Law Review 102, 110.

(67) I take the terminology from N Barry, Welfare, Milton Keynes,Open University, 1990, 105.

(68) WH Greenleaf, A Much Governed Nation, The British PoliticalTradition, vol 3, London, Methuen, 1987, ch 7. There are extremelyvaluable references to Dicey in The British Political Tradition passim.

(69) WI Jennings, 'In Praise of Dicey' (1935) 13 PublicAdministration 123, 132.

(70) Dicey above n 65, 387.

(71) ibid, 377.

(72) ibid, 397.

(73) AV Dicey, An Introduction to the Study of the Law of theConstitution, 8th edn, London, Macmillan, 1915, xxxviii.

(74) Dicey above n 65, 397

(75) M Moran, The British Regulatory State, Oxford, OxfordUniversity Press, 2003, 171.

(76) AC Pigou, Wealth and Welfare, London, Macmillan, 1912. In1920, Pigou expanded this book in 1920 to produce what remains thefoundational work of welfare economics: AC Pigou, The Economics ofWelfare, 1952 reprint, New Brunswick, Transaction Books, 2002.

(77) C Harlow and R Rawlings, Law and Administration, 3rd edn,Cambridge, Cambridge University Press, 2009, ch 1.

(78) CK Allen, Bureaucracy Triumphant, Oxford, Oxford UniversityPress, 1931.

(79) Lord Hewart of Bury, The New Despotism, London, Benn, 1929.

(80) M Taggart, 'From "Parliamentary Powers" toPrivatisation: The Chequered History of Delegated Legislation in theTwentieth Century' (2005) 55 University of Toronto Law Journal 575.In this paper, Allen and particularly Hewart are contrasted, much totheir disadvantage, with John Willis, whom Taggart greatly admired: MTaggart, 'Prolegomenon to an Intellectual History of AdministrativeLaw in the Twentieth Century: The Case of John Willis and CanadianAdministrative Law' (2005) 43 Osgoode Hall Law Journal 223.

(81) JAG Griffith, 'The Political Constitution' (1979) 42Modern Law Review 4-5.

(82) Taggart, 'From "Parliamentary Powers"'above n 80, 612-3.

(83) Lord Plowden, 'Foreword', in J Simkins and VTickner, Whose Benefit? London, Economist Intelligence Unit, 1978, 11.

(84) '[F]reedom in the management of a personal income'was one of the 'essential liberties' Beveridge sought topreserve in his conception of the welfare state: WH Beveridge, FullEmployment in a Free Society, London, George Allen and Unwin, 1944, 21.For but the latest authoritative description of the consequences of thearbitrariness of welfare support which, concerned with myriad improvinggoals, pays little regard to this freedom see Economic Dependency Unit,Dynamic Benefits, Centre for Social Justice, London, 2009, pt 1. On theadmittedly bad, indeed in my opinion unacceptable, example of the socialfund, written from as sympathetic a viewpoint as it is possible to takewhen one knows the facts, see T Buck and R Smith, eds, Poor Relief orPoor Deal? Aldershot, Ashage, 2003, pt 2. The law, if such it can becalled, is updated in T Buck, The Social Fund, 3rd edn, London, Sweetand Maxwell, 2009.

(85) eg TH Marshall, 'Citizenship and Social Class', inTH Marshall and T Bottomore, Citizenship and Social Class, London,Pluto, 1992, 1, 16: 'The right to education is a genuine socialright of citizenship [a]nd there is no conflict with individual rightsas interpreted in the age of individualism [f]or civil rights aredesigned for use by reasonable and intelligent persons, who have learnedto read and write. Education is a necessary prerequisite of civilfreedom'. For Dicey's view of state provision of education seeDicey above n 65, 195-8.

(86) It is a criticism that can readily be restated and applied tomodern administrative law: A Hutchinson, 'The Rise and Ruse ofAdministrative Law and Scholarship' (1985) 48 Modern Law Review293.

(87) C Harlow, Compensation and Government Torts, London, Sweet andMaxwell, 1982, 18.

(88) C Harlow, State Liability, Oxford, Oxford University Press,2004, 23-4. Professor Harlow has been anxious not to throw out the babywith the bathwater, and has sought to find a defensible role for tort inthe control of government in the works just cited and elsewhere.

(89) Dicey above n 65, 300 n 32 said that, in the CircumlocutionOffice, Dickens 'attacked the action of the State as compared withthat of individuals'! This is one of the few actually outrightsilly things I have read in Dicey.

(90) SA de Smith, Constitutional and Administrative Law, 5th edn,Harmondsworth, Penguin, 1985, 534. Professor Brazier retained thepassage in 8th edn, 1998, 504.

(91) Lord Denning, Freedom Under the Law, London, Stevens, 1949,126.

(92) The spirit of this involvement is captured in WA Robson,Justice and Administrative Law, 3rd edn, London, Stevens, 1951. I cannothope to improve on Professor Rawlings description of this work as'the classic "greenlighter's" handbook': RRawlings, 'Poetic Justice: The Case of the London Tube', in DDyzenhaus at al, eds, A Simple Common Lawyer, Oxford, Hart, 2009, 223,224 n 5.

(93) H Street, Justice in the Welfare State, London, Stevens, 1968,69, 8-9.

(94) de Smith above n 90, 5th edn, 545; 8th edn, 515.

(95) Street above n 93, 1.

(96) WA Robson, 'The Report of the Committee onMinisters' Powers' (1932) 3 Political Quarterly 346. ForRobson's criticism of the attitude he thought this anecdoteillustrated, see Robson, above n 92, 28, 423. Robson, it must berecalled, wanted a droit administratif in exactly the sense Dicey didnot. The contemporary attention paid to this anecdote is no doubt due toits being found in the frontispiece of Harlow and Rawlings above n 77,xii.

(97) AV Dicey, An Introduction to the Study of the Law of theConstitution, 10th edn, London, Macmillan, 1959, 205.

(98) I do not mean only that they changed in the way to whichattention was drawn by FH Lawson, 'Dicey Revisited', pt 2(1959) 7 Political Studies 207. Wade's outstanding introduction tothe 10th edn of An Introduction to the Study of the Law of theConstitution, loc cit, drew heavily on this paper, which he saw inproof.

(99) ibid, 52.

(100) Our focus is on the rule of law, but in relationship tosovereignty, how much criticism has rained down on Dicey in ignorance ofhis many statements to the effect that 'Parliamentary sovereignty... was a an instrument well adapted for the establishment of democraticdespotism.' Dicey above n 65, 217.

(101) Taggart notes the criticism of 'Dicey'speriodisation' (159).

(102) Dicey above n 65, 217 n 6.

(103) ibid, 217.

(104) AV Dicey, 'The Development of Administrative Law inEngland' (1915) 31 Law Quarterly Review 148, 149.

(105) ibid, 149-50.

(106) Dicey above n 65, 371.

(107) Dicey above n 104, 150.

(108) Dicey above n 65, 367.

(109) ibid, 371.

(110) Dicey above n 104, 150.

(111) ibid, 151-3.

(112) Dicey above n 65, 363-4.

(113) de Smith above n 90, 5th edn, 534; 8th edn, 515.

(114) HVR Wade and CWF Forsyth, Administrative Law, 10th edn,Oxford, Oxford University Press, 2009, 20. Professor Forsyth puts thepoint as a criticism of Dicey.

(115) I think some understanding of this lies behind Taggart'scriticism of 'Dicey's persistent denial of any usefuldistinction between public and private law' (Taggart above n 61,204), which represents one of the regrettable 'peculiarities of theEnglish' (Taggart above n 59). But this is rather strangely put asTaggart generally denies this distinction himself, and I am not entirelysure what he means. If he means, as the fact that he makes this point inthe course of a strong criticism of Harlow leads one to suspect, that heactually wants a really separate administrative law, then, for what itis worth, I am at complete odds with him, for, like Harlow above n 88,22, I believe that Dicey's principle of equality within unitarygovernment is overwhelmingly attractive. I do not, however, think hereally means this.

(116) M Loughlin, 'Why the History of English AdministrativeLaw is Not Written', in Dyzenhaus et al, eds above 92, 151, 175.

(117) Dicey above n 97, 389. See also Dicey above n 65, 197-8,201-4, 206-11.

(118) ibid, 206 n 65.

(119) Dicey above n 97, 389.

(120) I use this term because it was the term in contemporaneoususe (it was the subject of one of John Austin's few works inaddition to his lectures), but a modern must take care to see thedifferences between what the term connotes now, when we have a verypowerful central state and an emaciated local tradition, and what itconnoted then, when the opposite obtained: RM Gutchen, 'LocalImprovements and Centralisation in Nineteenth Century England'(1961) 4 Historical Journal 85, 86.

(121) de Smith above n 90, 545.

(122) J Toulmin Smith, The Metropolis and Its MunicipalAdministration, London, T Saunders, 1852, 25. Loughlin above n 116, 174n 91 draws attention to other works of this important defender oftraditional forms of responsibility and accountability in 'localgovernment' against centralisation. On Toulmin Smith see WHGreenleaf, 'Toulmin Smith and the British Political Tradition'(1975) 53 Public Administration 25.

(123) Harlow and Rawlings above n 77, 9. The nature of Dicey'stheoretical mistake is set out in well known works by Sir William Wadeand Professor Harris to which they refer ibid, n 31. An understanding ofthis mistake in the context of a theoretical tradition of analysis of'the state in the common law tradition' is begun in J Allison,'Theoretical and Institutional Underpinnings of a SeparateAdministrative Law', in Taggart, ed above n 28, 71, 74-9.

(124) Harlow and Rawlings above n 77, 9.

(125) P Craig, 'Preorgative, Precedent and Power', in CForsyth and I Hare, eds, The Golden Metwand and the Crooked Cord,Oxford, Clarendon Press, 1998, 65, 89. Hewart, of course, saw this in away, and hence the title of his book.

(126) FA Hayek, The Road to Serfdom, Collected Works vol 2,Chicago, University of Chicago Press, 2007, 194.

(127) G Orwell, 'The Intellectual Revolt', in SmotheredUnder Journalism, Complete Works vol 18, rev edn, London, Secker andWarburg, 2001, 56, 59.

(128) This is rather better done in the concentration on serfdom ofthe privileged elite in Brave New World, but Orwell was generallycritical of what he saw as the 'hedonistic principle' inleft-wing thought: G Orwell, 'Review of [inter alia] Brave NewWorld', in A Patriot After All, Complete Works, vol 12, London,Secker and Warburg, 2001, 210, 211.

(129) G Orwell, 'Why I Write', in Smothered UnderJournalism above n 127, 316.

(130) RHS Crossman, Socialism and the New Despotism, Fabian Tract298, 1956. Hewart is not himself even mentioned in this Tract.

(131) Harlow and Rawlings above n 77, 45-6.

(132) Drawing on 1980 dicta of Lord Hailsham which he valuablybrought to wider attention, Lord Cooke has given a contemporarystatement: 'The [administrative law] jurisdiction is inherentlydiscretionary. This is not always convenient for either practitioners oracademics, but it is the simple truth': Lord Cooke of Thorndon,'The Discretionary Heart of Administrative Law', in Forsythand Hare, eds above n 125, 203, 220. But I for one cannot place any realweight on this. However it may have been for others, I doubt that LordCooke, in his confidence in his ability to identify the public interest,ever found this truth particularly inconvenient.

(133) As Hewart above n 79, 152-3 argued, in my opinioncompellingly.

(134) P Diamond, ed, New Labour's Old Roots, Exeter, ImprintAcademic, 2004.

(135) P Mandelson and R Liddle, The Blair Revolution, London,Faber, 1996 and P Mandelson, The Blair Revolution Revisited, London,Politico's, 2002. For administrative law, the formal middle groundis captured in the title of Hancher and Reute's review of Harlowand Rawlings: L Hancher and M Reute, 'Forever Amber' (1985) 48Modern Law Review 243.

(136) T Giddens, The Third Way, Cambridge, Polity Press, 1998.

(137) EFM Durbin, 'Professor Hayek on Economic Planning',in, Problems of Economic Planning, London, Routledge and Kegan Paul,1949, 91, 106.

(138) T Poole, 'The Reformation of English AdministrativeLaw' [2009] Cambridge Law Journal 142, 164-5.

(139) R Creyke and J McMillan, 'Soft Law v Hard Law', inL Pearson et al, eds, Administrative Law in a Changing State, Oxford,Hart, 2008, 377.

(140) P Goodrich, 'Law's Labour's Lost' (2009)72 Modern Law Review 296, 310.

(141) In 1940, Lawson described BvP as surrounded by contraryauthority, in tort and elsewhere, and easily confined to 'its ownlittle island of fact': Lawson, 'Notes' above n 14, 161.In 1951, he described Allen v Flood and BvP as 'exceptional':Lawson, Rational Strength above n 14, 117.

(142) CM Haar and DW Fessler, The Wrong Side of the Tracks, NewYork, Simon and Schuster, 1986.

(143) Getzler above n 46, 316.

(144) Simpson above n 25; VLIS, 18-28 and Simpson above 26.

(145) The principal modern discussion of which is Getzler'svolume in the Oxford Studies in Modern Legal History Series: Getzlerabove n 46, reviewed by Taggart in (2005) 25 Legal Studies 337.Getzler's account of the absolutist interpretation is standard: loccit, 315-6.

(146) Taggart above n 28, 5.

(147) Comm I, 139: 'it would be dangerous to allow any privateman, or even any public tribunal, to be the judge of the common good,and to decide whether it be expedient or no'; quoted in VLIS, 7.

(148) Lawson, Negligence above n 14, 18-9. This passage reworksviews Lawson had advanced 10 years previously: Lawson, 'Notes'above n 14, 164.

(149) HC Gutteridge, 'Abuse of Rights' (1933-5) 5Cambridge Law Journal 22, 43-4. I myself find this an exemplary paper,one which sees the problems with BvP as known through the absolutistinterpretation, and weighs up the pros and cons of reform carefully andwith what seems to be useful comparative analysis, though I am in noposition to maintain an opinion of the accuracy of that analysis.

(150) Rudden above n 45, 85.

(151) VE Greaves, 'The Social-Economic Purpose of PrivateRights', pt 2 (1934-5) 12 New York University Law Quarterly Review,441, 465-6.

(152) Lawson, 'Notes' above n 14, 164.

(153) Simpson above n 46, vii.

(154) I am trying to make a wider point than the narrower pointthat, however, is of the greatest importance, which is that it isinconceivable that such a doctrine will not interfere, in ways which wesimply cannot see how to control, with legitimate economic competition.

(155) M Taggart, 'The Nature and Functions of the State',in P Cane and M Tushnett, eds, The Oxford Handbook of Legal Studies,Oxford, Oxford University Press, 2003, 101.

(156) Taggart cites J Kelsey, The New Zealand Experiment: A WorldModel for Structural Adjustment?, Auckland, Auckland University Pressand Bridget Williams Books, 1995 in Taggart above n 61, 203 n 96.

(157) For a most influential celebration of power the electivedictatorship gave to the pursuit of the socialist definition of thepublic interest not mentioned by Wright, see A Bevan, In Place of Fear,London, Heinemann, 1952, 100.

(158) A Wright, 'British Socialists and the BritishConstitution' (1990) 43 Parliamentary Affairs 322, 337. 322.

(159) Taggart above n 28, 2. The hortation was extended to theinternational level in M Taggart, 'The Tub of Public Law', inD Dyzenhaus, ed, The Unity of Public Law, Oxford, Hart, 2004, 455, 479.

(160) M Taggart, 'Reinventing Administrative Law', in NBamforth and P Leyland, eds, Public Law in a Multi-layered Constitution,Oxford, Hart, 2003, 311 and M Taggart, 'Associated ProvincialPicture Houses Ltd v Wednesbury Corporation' (1948)', in PCane and J Conaghan, eds, The New Oxford Companion to Law, Oxford,Oxford University Press, 2008, 55.

(161) M Taggart, 'Ultra Vires as Distraction', in CForsyth, ed, Judicial Review and the Constitution, Oxford, Hart, 2000,427.

(162) M Taggart, 'Rival Theories of Invalidity inAdministrative Law', in M Taggart, ed, Judicial Review ofAdministrative Action in the 1980s: Problems and Prospects, Auckland,Oxford University Press, 1986, 70.

(163) M Taggart, 'Proportionality, Deference,Wednesdbury' [2008] New Zealand Law Review 423.

(164) Taggart, 'From "Parliamentary Powers"'above n 80.

(165) M Taggart, 'Expropriation, Public Purpose and theConstitution', in Forsyth and Hare, eds above n 125, 91, 105.

(166) ibid, 112. See also Taggart above n 159, 468.

(167) Wade and Forsyth above n 114, 296-7.

(168) Taggart above n 28, 3.

(169) He minimises incidences of these episodes in a strikingpassage in PPARVE (200), which contains an even more striking referenceto a tort as an adequate remedy for them.

(170) I Harden, The Contracting State (Buckingham: Open UniversityPress, 1992).

(171) R Rhodes, 'The Hollowing Out of the State: The ChangingNature of Public Service in Britain' (1994) 65 Political Quarterly138.

(172) S Strange, The Retreat of the State (Cambridge: CambridgeUniversity Press, 1996).

(173) HB Feingenbaum et al, Shrinking the State (Cambridge:Cambridge University Press, 1999).

(174) K Ohmae, The End of the Nation State (New York: Free Press,1995). The corollary point that the common understanding ofglobalisation is mistaken is made in L Weiss, The Myth of the PowerlessState (New York: Cornell University Press, 1999) and PQ Hirst et al,Globalisation in Question, 3rd edn (Cambridge: Polity Press, 2009).

(175) FG Castles, 'Testing the Retrenchment Hypothesis: AnAggregate Overview, in FG Castles, ed, The Disappearing State(Cheltenham: Edward Elgar, 2007) ch 2.

(176) PB Evans et al, eds, Bringing the State Back In, Cambridge,Cambridge University Press, 1985. The summary of what has happened in SVogel, Freer Markets, More Rules (Ithaca: Cornell University Press,1996) 269 is exemplary.

(177) D Campbell, 'Relational Contract and the Nature ofPrivate Ordering: A Comment on Vincent-Jones' (2007) 14 IndianaJournal of Global Legal Issues 279.

(178) C Harlow, 'The "Hidden Paw" of the State andthe Publicisation of Private Law', in Dyzenhaus et al, eds above n92, 75, 77-8.

(179) Rawlings above n 92, 246.

(180) ibid, 233.

(181) ibid, 225.

(182) D Campbell, 'The Hybrid Contract and the Merging of thePublic and Private Law of the Allocation of Economic Goods', in DCampbell and ND Lewis, eds, Promoting Participation, London, Cavendish,1999, 45. Reasons of space preclude me from applying the argument ofthis paper to Dicey's conception of the division between privateand public, of the nineteenth century collapse of which underMill's influence he gave an acute analysis summarised in Diceyabove n 65, 378.

(183) I have tried to avoid direct citation of what I regard asvery poor criticisms of Dicey, but I am impelled to mention LordSedley's recent throwaway reference to Dicey's'xenophobic and counterfactual insistence that Britain, unlikeFrance, had no body of administrative law': S Sedley, 'On theMove' (8 October 2009) 31(19) London Review of Books 3-5. It is notthat Lord Sedley is no better than others in coming to terms "withRobson's story, it is that he calls one of Britain's greatestcomparative lawyers a xenophobe when writing for a readership almost allof whom will not be able to know any different.

(184) Social Insurance and Allied Services, Cmd 6404, 1942, para294.

(185) WH Beveridge, Why I am a Liberal, London, Herbert Jenkins,1945.

(186) TH Marshall, Social Policy, 1st edn, London, Heinemann, 1952,92.

(187) Harlow above n 178, 79.

(188) G Orwell, 'Inside the Whale', in A Patriot AfterAll above n 128, 86, 110. It is an issue whether, even at this earlytime, Orwell had already rather given up on this under the influence ofa belief in a coming general totalitarianism.