AV Dicey and the Rule of Law

Albert Venn Dicey (1835–1922) was a British jurist and constitutional theorist who is most famously known for his development of the rule of law. His explication is a cornerstone in the study of modern constitutional and legal theory, primarily derived from his seminal work, Introduction to the Study of the Law of the Constitution published in 1885. His articulation of the rule of law has had a profound impact on legal thought in the United Kingdom and beyond.

The rule of law is a fundamental principle of democratic societies that holds that all individuals and institutions are subject to the law, and that the law must be applied equally and impartially to all. His conception of the rule of law can be broken down into three primary tenets that collectively propose a functional and ethical foundation for the governance of a society under law:

Supremacy of law: Dicey asserted that the rule of law implies the absolute supremacy of regular law as opposed to the influence of arbitrary power. He argued that all individuals, regardless of status, are subject to the ordinary laws of the land administered by regular courts. This principle opposes the existence of any arbitrary governmental authority or discretionary powers.

Equality before the Law: This principle is a corollary of the first and asserts that the rule of law must guarantee that no person is above the law. Importantly, this includes lawmakers themselves, government officials, and those in positions of power. Everyone is subject to the same laws and the same judicial process.

Predominance of legal spirit: Dicey emphasised the importance of the general principles of the constitution being the result of judicial decisions determining the rights of private individuals in particular cases brought before the courts. This suggests that the constitution is not just a written document but a living body of law developed and maintained through judicial precedents and case law, ensuring that the legal framework evolves with society.

His interpretation of the rule of law has been highly influential, informing legal practice and constitutional law in the UK and many other democracies. His emphasis on legal equality and the control of arbitrary power resonates strongly in societies that value justice and individual rights. The principles he articulated help safeguard civil liberties by ensuring that the government operates within a framework of publicly known, consistent, and enforceable laws.

Despite its influence, his conception of the rule of law has faced criticism. Critics argue that his view was too focused on the formality of law and did not adequately address the social or substantive outcomes of legal processes. This perspective suggests that the law can still be used as a tool of oppression and can maintain systemic injustices even if it applies equally to all.

Furthermore, the modern state with its extensive range of functions and complex regulatory frameworks challenges his framework, which was based on a simpler notion of government functions. Today, the vast and active role of the state in economic and social life requires a broader understanding of the rule of law, one that encompasses protections against both legal and administrative abuse.

Nevertheless, his development of the rule of law remains a fundamental element of constitutional law, emphasising a system of governance where law stands as the ultimate standard and protector of individual liberties. While modern legal and political landscapes may have evolved beyond his original frameworks, his principles continue to inform and guide legal thought and practice in the quest for justice and equity in governance. The durability of his ideas underscores the perpetual relevance of striving for a society governed by and for the law.