• Login
  • Register
The Daily Sceptic
No Result
View All Result
  • Articles
  • About
  • Archive
    • ARCHIVE
    • NEWS ROUND-UPS
  • Podcasts
  • Newsletter
  • Premium
  • Donate
  • Log In
The Daily Sceptic
No Result
View All Result

A.V. Dicey Did Not Foresee the Gender Recognition Act

by James Alexander
25 April 2024 6:00 PM

The Gender Recognition Act of 2004 states that, after receiving a certificate of ‘gender recognition’ by the state,

[a] person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Contrast this with one of the most famous lines from An Introduction to the Study of the Law of the Constitution by A.V. Dicey, first published in 1885:

It is a fundamental principle with English lawyers that Parliament can do everything but make a woman a man, and a man a woman.

The contrast between these two passages illustrates one of the great ironies of modern jurisprudence. It used to be a fundamental principle that Parliament could do everything but make a woman a man, and a man a woman. But then we had the Gender Recognition Act (which was provoked by a ruling of the European Court of Human Rights in July 2002). So now Parliament can make a woman a man, and a man a woman.

Now, what I want to point out about this is that it is a matter of law. Legislation was passed in 2004, following the United Kingdom losing a case before the European Court of Human Rights in 2002, a case which depended on articles of the European Convention on Human Rights originally signed in 1950 by all members of the Council of Europe and brought into force in 1953. Therefore it was a change in law which was behind all of the current debates about ‘trans’ issues; and, also to be noted is the significant fact that the change in law was demanded by a European court.

II

Dicey was not responsible for the line I have quoted. He called it a “grotesque expression which has become almost proverbial” and he attributed to J.L. de Lolme, a Genevan writer of the late 18th Century, whose book The Constitution of England; in which it is compared with the republican form of government, and the other monarchies in Europe was first published in English in 1775, and again in an enlarged edition in 1784 (where Dicey found the line). Dicey was using de Lolme’s expression to illustrate a principle summarised in William Blackstone’s Commentaries, but of much older provenance: the principle that Parliament “can do everything that is not naturally impossible”.

Chapter X of The Constitution of England is a technical account of the contrast between English writs and Roman actiones legis. But, along the way, de Lolme claimed that the relative strictness of the English system – writs could only be authorised by a court invested with the appropriate powers, which meant, ultimately, Parliament, whereas actiones legis could be authorised by any judge or praetor – meant that English law had depended for a long time on ‘legal fictions’ in order to maintain its necessary flexibility. But de Lolme conceded that Roman lawyers too had made use of legal fictions. “Law fictions… were not unknown to the old Roman jurisconsults; and as an instance of their ingenuity in that respect may be mentioned that kind of action in which a daughter was called a son.” And he qualified this observation with a footnote:

From the above instance it might be concluded that the Roman jurisconsults possessed still greater power than the English Parliament; for it is a fundamental principle with the English jurists, that Parliament can do every thing, except making a woman a man, or a man a woman.

In the original French: c’est un principe Fondamental chez les gens de robe de ce pays-la, que le parlement peut tout, excepté faire une femme d’un homme; & vice versa.

De Lolme was an 18th-Century writer, hence ironical. Irony had disappeared by the time of Dicey, and has not yet returned amongst even the legal authorities who would now think Dicey the one guilty of grotesquery.

III

Law is an elaborate confection or construction which runs parallel to life, seems derivative of it, imposes order on it, but is separate from it. If life is where we find fact then law is where we find fiction. ‘Guilty!’ and ‘Not guilty!’ are fictions. So is ‘the Crown’, and ‘the State’, and many other corporations which only exist by legal fiction: the BBC, for instance, and the Universities. Even ‘the Law’ itself, when considered with the most Machiavellian or Augustinian eye, is something of a fiction. Now, it is common for ‘law fictions’ to be used in relation to a body politic, i.e., a corporation. But it is not common for ‘law fictions’ to be used in relation to a body natural, i.e. of an individual human soul.

Even Roman jurisconsults would not have thought that a daughter who could be a son by fiction could be a son in fact.

For the first time in human history, as far as I know, the body natural of the individual human has been separated from what we could call the body politic of the same individual human. At one and the same time a human may be naturally or, we may say, originally (or, as they say, inverting reality, ‘assigned’), male, and legally or, we may say, finally, female – and vice versa. And the interesting thing is such law is pressed so hard that certain activists are campaigning hard for law to trump nature: so that, in effect, our bodies politic will become not only the bodies recognised by law but also the only bodies there are. This will be to live in a world where, as de Lolme puts it, “writs, being warped from their actual meaning, [will be] made to extend to cases to which they in no shape belong”. This is a world in which law will be used to turn fiction into fact – by force.

In the last few years the activists have been trying to change the Gender Recognition Act so that it will be enough to identify oneself as the other sex. In September 2020 the United Kingdom Government decided not to allow people to change sex simply because they wanted to fictionalise themselves. So there are still limits to the willingness of the state to allow fictions by law to be substituted for natural facts.

But one can see why there is nothing in our respect for law which enables us to resist such a substitution. It is only by limiting law and insisting that it remains within its own boundaries that we can hold onto facts. It is no wonder Starmer had so much difficulty with his definition of a woman. He is a lawyer, and, as such, lives in a world of legal fiction, not fact.

Dr. James Alexander is a Professor in the Department of Political Science at Bilkent University in Turkey.

Tags: A.V. DiceyEuropean Court of Human RightsGender Recognition ActParliamentary Sovereignty

Donate

We depend on your donations to keep this site going. Please give what you can.

Donate Today

Comment on this Article

You’ll need to set up an account to comment if you don’t already have one. We ask for a minimum donation of £5 if you'd like to make a comment or post in our Forums.

Sign Up
Previous Post

My BBC Complaint About Chris Packham’s Daily Sceptic Slur

Next Post

Lockdown’s Impact on Children to Last Well into 2030s, Says LSE Report

Subscribe
Login
Notify of
Please log in to comment

To join in with the discussion please make a donation to The Daily Sceptic.

Profanity and abuse will be removed and may lead to a permanent ban.

12 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments

NEWSLETTER

View today’s newsletter

To receive our latest news in the form of a daily email, enter your details here:

DONATE

PODCAST

Episode 36 of the Sceptic: Karl Williams on Starmer’s Phoney Immigration Crackdown, Dan Hitchens on the Assisted Suicide Bill and Tom Jones on Reform’s Local Council Challenge

by Richard Eldred
16 May 2025
0

LISTED ARTICLES

  • Most Read
  • Most Commented
  • Editor’s Picks

Chinese ‘Kill Switches’ Found in US Solar Farms

15 May 2025
by Will Jones

News Round-Up

16 May 2025
by Richard Eldred

Spy Agency Report on the Alleged “Extremism” of AfD Turns Out to Be So Stupid That it Destroys all Momentum for Banning the Party

16 May 2025
by Eugyppius

The Folly of Solar – a Dot on the Horizon Versus a Blight on the Land

16 May 2025
by Ben Pile

Civil Servants Threaten to Strike Over Trans Ban in Women’s Lavatories

16 May 2025
by Will Jones

The Folly of Solar – a Dot on the Horizon Versus a Blight on the Land

29

Civil Servants Threaten to Strike Over Trans Ban in Women’s Lavatories

25

Spy Agency Report on the Alleged “Extremism” of AfD Turns Out to Be So Stupid That it Destroys all Momentum for Banning the Party

19

News Round-Up

18

Chinese ‘Kill Switches’ Found in US Solar Farms

27

Trump’s Lesson in Remedial Education

16 May 2025
by Dr James Allan

Spy Agency Report on the Alleged “Extremism” of AfD Turns Out to Be So Stupid That it Destroys all Momentum for Banning the Party

16 May 2025
by Eugyppius

The Folly of Solar – a Dot on the Horizon Versus a Blight on the Land

16 May 2025
by Ben Pile

Renaud Camus on the Destruction of Western Education

15 May 2025
by Dr Nicholas Tate

‘Why Can’t We Talk About This?’

15 May 2025
by Richard Eldred

POSTS BY DATE

April 2024
M T W T F S S
1234567
891011121314
15161718192021
22232425262728
2930  
« Mar   May »

SOCIAL LINKS

Free Speech Union
  • Home
  • About us
  • Donate
  • Privacy Policy

Facebook

  • X

Instagram

RSS

Subscribe to our newsletter

© Skeptics Ltd.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
No Result
View All Result
  • Articles
  • About
  • Archive
    • ARCHIVE
    • NEWS ROUND-UPS
  • Podcasts
  • Newsletter
  • Premium
  • Donate
  • Log In

© Skeptics Ltd.

wpDiscuz
You are going to send email to

Move Comment
Perfecty
Do you wish to receive notifications of new articles?
Notifications preferences