Dicey’s Rule of Law

By Bhavesh Bhaskar 9 Minutes Read

Introduction

The Rule of Law is a fundamental principle underpinning democratic governance, ensuring that all individuals and institutions are subject to and accountable under the law. It is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance. The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society.

History of the rule of Law

• The Rule of Law has been an important ideal in modern political tradition for millennia, and it is impossible to grasp and evaluate modern understandings of it without fathoming that historical heritage.
• The heritage of argument about the Rule of Law begins with Aristotle and goes on through the early modern period in the works of John Locke, Montesquieu and other European Enlightenment thinkers.
• One of the most influential exponents of this principle in the context of British constitutional law is A.V. Dicey. His exposition of the Rule of Law, articulated in his seminal work Introduction to the Study of the Law of the Constitution (1885), has had a profound impact on legal and political theory.
• Dicey’s formulation of the Rule of Law is often dissected into three core components: the absence of arbitrary power, the equality before the law, and predominance of the legal spirit.This essay explores these elements in detail, assesses their relevance in contemporary legal systems, and considers criticisms of Dicey’s theory.

Dicey’s Formulation of the Rule of Law

1. The absence of arbitrary power

The first principle emphasizes that no one should be punished or made to suffer except for a breach of the law that has been established in the ordinary legal manner. In Dicey’s view, this means that government authorities should act within the confines of the law, and their actions should be predictable and consistent with legal norms.

Dicey’s assertion was grounded in his observation of the British legal system, which he believed functioned to curb arbitrary power by requiring that any government action must be authorized by law. This notion of legality ensures that governmental powers are exercised according to established laws and not on the basis of individual discretion. It is an essential safeguard against despotism and abuse of power.

2. Equality before law

This implies equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts. In this sense the rule of law conveys that no man is above the law. It denoted that the state officials were not given any special privileges or protections from the law of the land.

3. Predominance of the legal spirit

Dicey believed that the courts are the enforcers of the rule of law and hence it should be free from impartiality and external influence. Independence of the judiciary is therefore an important pillar for the existence of the rule of law.

Dicey dealt in detail with the precarious protection of rights on the continent, where constitutions enshrining rights would often be abrogated at the stroke of the pen or the point of a sword. He felt that in the UK, where individual rights were the result of numerous judicial decisions indicating when the individual was at liberty to speak freely etc., it would be considerably more difficult for an authoritarian regime to sweep these rights aside. This also reveals Dicey’s belief that common law affords greater protection to the citizens than a written constitution.

Contemporary Relevance of Dicey’s formulation

• Dicey’s formulations remain central to contemporary discussions of constitutional law and democratic governance. His insistence on the absence of arbitrary power aligns with modern notions of constitutionalism and the separation of powers.
• The principle of equality before the law continues to be a cornerstone of democratic legal systems. Modern legal frameworks, including anti-discrimination laws and equal protection clauses, reflect Dicey’s emphasis on impartiality and fairness.
• Judicial review allows courts to assess the legality of government actions and to ensure that they are consistent with established legal norms. This is vital in maintaining the accountability and legitimacy of government actions, providing a safeguard against the misuse of power and ensuring that legal principles govern the exercise of authority.

Limitations of Dicey’s Rule of Law

1. Excessive Formalism

The emphasis on the absence of arbitrary power and equality before the law assumes a level playing field that may not exist in practice. Issues and concerns arising out of socio-economic inequalities and systemic biases can undermine the ideal of equal treatment before the law, raising questions about the adequacy of Dicey’s formulation in addressing real-world disparities.

Moreover, when Dicey maintained that the Rule of Law required ―the equal subjection of all classes to the ordinary law of the land administered by ordinary courts and that the Rule of Law was inconsistent with administrative law and administrative tribunals, he created a false opposition between ordinary and special law, and between ordinary courts and special tribunals. The two kinds of laws existed even in his day, and ordinary courts, as well as special tribunals, determined the rights of parties.

Far from granting privileges and immunities to public authorities, the French Administrative Courts exercise a supervision and control over public authorities which was more complete than which the Courts exercise in England.

2.The inevitability of Discretion in modern governance

When Dicey wrote that wide discretionary authority was inconsistent with the Rule of Law he might have expressed his political philosophy, but he certainly did not express a principle of the English Constitution for, in fact, wide discretionary power existed in England.

And if it is contrary to the Rule of Law that discretionary authority should be given to government departments or public officers, then the Rule of Law is inapplicable to any modern Constitution.

The increasing complexity of modern governance and administrative decision-making also challenges Dicey’s principle of the predominance of legal principles over discretionary power.

Conclusion

Though principles of the absence of arbitrary power, equality before the law, and the predominance of legal principles remain foundational to democratic governance and the protection of individual rights, Dicey’s formulations face newer challenges in ever evolving socio-political context. While it is undeniable that the rule of law is an essential element of constitutionalism and upholding the democratic system of government, it needs to take account of the evolving context.

Bhavesh Bhaskar