This writeup is an exploration of a couple of the key views of
Albert V. Dicey, the
British constitutional scholar who first
enunciated the modern definition of
the rule of law.
It briefly explains his views on the rule of law, written vs unwritten
constitutions and
Parliamentary supremacy.
It then takes a look at how well his views have withstood the
test of time.
Dicey's rule of law
(unless explicitly noted, quotes within this section are from Dicey's
Law of the Constitution)
The notion of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the later was clearly superior to the former.
In more recent times, it is Albert Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based.
He laid out his three principles of the rule of law in his 1885 book An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution):
- everyone is equal before the law
- no one can be punished unless they are in clear breach of the law
- there is no set of laws which are above the courts
Although few would argue with the first two principles, the third principle is actually quite contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the courts.
This simple fact leads us to have to consider Dicey's views on written vs unwritten constitutions.
Dicey's views on written vs unwritten constitutions and how they differ in their treatment of rights
Dicey's
Law of the Constitution is a study of the
British Constitution including the concepts of Parliamentary Supremacy and the rule of law.
Unlike a written constitution, the British Constitution isn't actually written down anywhere but rather is the result of centuries of legal
precedent.
Dicey called this
a judge-made constitution and he viewed this form of constitution to be superior to a written constitution (e.g. the
U.S. Constitution or the
French Constitution).
His reasons for believing this are worth exploring and I intend to focus in on one of the more interesting ones.
To put it simply, Dicey believed that the legal precedent approach to the protection of individual rights, by its very nature, creates an "inseparable connection between the means of enforcing a right and the right to be enforced".
In other words, by finding the legal decision which ennunciates a right, one essentially also finds the legal decision which describes how said right is to be enforced (my words).
In contrast, he believed that the approach of proclaiming rights in a constitutional document tends to ignore the "necessity for the provision of adequate remedies by which the rights they proclaimed might be enforced".
One example that he uses is the French Constitution of 1791 which proclaimed liberty of conscience, liberty of the press, the right of public meeting, the responsibility of government officials.
Powerful language indeed yet, as Dicey puts it "there never was a period in the recorded annals of mankind when each and all of these rights were so insecure, one might almost say so completely nonexistent, as at the height of the French Revolution".
Dicey's views on Parliamentary Supremacy
When Dicey wrote
Law of the Constitution in 1885, a central part of his work was the
sovereignty or supremacy of Parliament.
By this he meant that Parliament had and should have the right to pass any law that it wished to pass.
His reason for believing this was, in essence, that laws which passed through Parliament were subject to intense scrutiny and this intense scrutiny would ensure that only good laws would make it through Parliament.
In contrast, he viewed the Constitutional Supremacy approach to be less satisfactory as it could and did often result in bad laws which were either fixed or voided by the courts in obscure (i.e. hard to comprehend) judgments.
Dicey's totally re-written Introduction to the eighth edition of his Law of the Constitution (1914) dealt with what was a rather troubling development in British constitutional history.
The Government in power in 1911 (led by Herbert Asquith) had forced through an act titled The Parliament Act, 1911.
This act effectively stripped the House of Lords of the ability to block legislation which had been passed by the House of Commons.
The effect of this change was to greatly increase the House of Commons' share of the sovereignty which, in the British system, is shared between the House of Commons, the House of Lords and the King.
Since Dicey's reasons for arguing the superiority of a judge-made constitutional system (e.g. the British system) over a written constitutional system (e.g. the American or French systems) hinged, in part, on the intense scrutiny which a bill would receive while passing through both houses, anything which weakened the ability of either house to subject a bill to intense scrutiny was a cause of concern to Dicey.
Dicey's views from a late 20th century perspective
Dicey's views on the rule of law have both passed and failed the
test of time.
His views on the rule of law have passed in the sense that his first two principles of the rule of law (i.e. that everyone is equal before the law and that no one can be punished unless they are in clear breech of the law) are the cornerstone of how the notion of
the rule of law is viewed today.
His third principle has not, however, stood the test of time very well.
The reasons are, at least in some respects, related to what has happened in
Britain and other countries with a British parliamentary system of government (e.g. Canada).
Dicey's views on written vs unwritten constitutions are, one can be sure, still subject to much debate and discussion (even if many of those doing the debating and discussing might not be aware of Dicey and his views on the matter).
What can be said is that some written constitutions (e.g. the U.S. Constitution) have been quite successful at providing a framework within which individual rights are protected while others (e.g. some of the Soviet block constitutions) have been near total failures.
The same, I'm sure, can be said of unwritten constitutions although
some would argue that the British constitutional experience has been rather mixed.
For example, Britain passed the Criminal Justice Act, 1994 which allows a refusal to answer questions to be used as evidence against a defendant (see civil liberties for more examples).
From another perspective, the Parliament Act of 1911's changes which caused Dicey considerable concern have since been followed by even more ominous developments.
For example, over the course of the past century, the office of the Prime Minister in Canada, Great Britain and elsewhere has become almost dictatorial in nature.
By this, I mean that the Prime Minister now wields so much power and influence over the fortunes of their party's individual Members of Parliament that these MPs disagree with or even question the Prime Minister at their own very real peril.
This ability to lead their party with an iron fist means that bills are often introduced in Parliament (i.e. first visible for public scrutiny) in their essentially final form.
They are then passed, sometimes in a period of days, and sent to the Upper House (i.e. Senate in Canada and elsewhere, House of Lords in Britain) for what is generally little more than pro-forma scrutiny followed by rubber stamp passage.
Royal accent then follows and the bill becomes law.
The obvious consequence of this approach is that legislation which is passed by Parliament is no longer subjected to anything even remotely resembling the level of intense scrutiny which Dicey believed it would always incur.
The result is that there is every reason to believe (and ample evidence to support the belief) that the quality of laws which are passing through Parliament isn't what it could be.
Unfortunately, with Parliament continuing to reign supreme in Britain, the courts are not able to void the bad laws which make it through Parliament (the Canadian situation is slightly different as the Supreme Court of Canada is able to void laws as being unconstitutional but the fundamental problem remains - far too much power in the office of Prime Minister and his Cabinet which is resulting in a significant risk if not the reality of sub-standard laws being passed).
Final words
If alive today, Dicey would have solid grounds to have pride in the role that his first two rule of law principles have had in influencing political developments over the past one hundred years.
It would certainly be interesting to see how his views on his third principle of the rule of law and other aspects of the British parliamentary system would have been impacted by the developments over the past century.
Sadly, it's probably just as well that he's not here to see what's happened.
The early part of this writeup, up to the end of the Dicey's rule of law section, covers very similar ground to my The Rule of Law writeup.
The remaining three sections of this writeup explore issues which is not explored in my The Rule of Law writeup.
An alternative approach would be to expect readers of this writeup to first read the other writeup or include this writeup in my The Rule of Law writeup.
The first alternative seems unreasonable and the second would clutter up the other writeup in ways that I'd rather avoid (I'm open to suggestions and, in case you're wondering, this isn't a NFN writeup).
Sources
- web page titled "Dicey, Albert Venn" located at http://www.rep.routledge.com/philosophy/articles/bib/T/T030/T030.html (last accessed 2002/10/14)
- web page titled "xrefer - Dicey, Albert Venn (1835 - 1922)" located at http://www.xrefer.com/entry/369796 (last accessed 2002/10/14)
- web page titled "A.C.R.P: Separation of Powers" located at http://www.une.edu.au/~arts/Politics/separati.htm (last accessed 2002/10/14)
- web page titled "Discussion" located at http://www.dadalos.org/int/parteien/Grundkurs4/GB/diskussion.htm (last accessed 2002/10/14)
- A.V. Dicey's An Introduction to the Study of the Law of the Constitution (eighth edition; 1914) available on the 'net in rather poor quality OCR'd form at http://www.constitution.org/cmt/avd/law_con.htm (last accessed 2002/10/15)
- web page titled "THE PARLIAMENT, THE EXECUTIVE AND THE COURTS: ROLES AND IMMUNITIES" (a speech by the Honourable Sir Gerard Brennan, AC KBE Former Chief Justice of Australia) available as a PDF file on the 'net at http://www.bond.edu.au/law/blr/vol9-2/2-Brennan.pdf (last accessed 2002/10/15)