A. V. Dicey

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

When A. V. Dicey sat down in the 1880s to explain the British constitution to his Oxford law students, he faced an odd problem: the country he was describing did not have one, at least not in the sense his continental European colleagues meant. There was no single document to open, no article one to point to. What held the system together, Dicey argued in his 1885 Introduction to the Study of the Law of the Constitution, was a working principle he called the rule of law, and he broke it into three parts that are still the starting point for the subject today.

The first part is the supremacy of regular law over arbitrary power. No official, however senior, may punish a person except for a distinct breach of law established in the ordinary way before the ordinary courts. This sounds obvious until you compare it with systems where a minister's say-so, or a monarch's pleasure, can substitute for a legal charge. Dicey was writing against a background in which continental administrative law seemed to carve out special, more forgiving rules for the state and its officers; his first principle insists that in Britain, the state answers to the same law as everyone else.

Which is exactly his second point: equality before the law. Every person, whatever their rank, is subject to the ordinary law of the land and answerable in the ordinary courts. A government minister who commits a tort is sued in the same courts, under the same rules, as a private citizen who does the same thing. Dicey thought this fusion of accountability, rather than any single written guarantee, was what actually protected English liberty.

The third part is the most distinctively Dicean, and the hardest to summarize without sounding circular: the general principles of the constitution, such as the right to personal liberty or public assembly, are not the source of individual rights but the consequence of them, as decided and enforced by the ordinary courts. Where other constitutions declare rights and then build institutions to defend them, Dicey saw the British arrangement working the other way around. Because courts had, case by case, protected individuals against unlawful arrest and unlawful assembly, a general right existed, resting on the accumulated weight of ordinary judicial decisions rather than on a founding charter.

Modern scholars have pushed back on all three legs of this stool. The sharp line Dicey drew between British and continental administrative law has softened considerably as English law has developed its own body of administrative and public law since his day, and specialists in comparative law now see less of a difference than he claimed. But the three-part formulation itself, right or overstated in its particulars, gave the phrase rule of law a working definition precise enough to argue with, which is a large part of why it is still the reference point on this subject more than a century later. Whatever a later writer wants to say about the rule of law, in almost any legal system, they are still in conversation with the three rules Dicey wrote down in Oxford in 1885.

This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.

Dicey's other great idea, sitting right beside the rule of law in the same 1885 book, is easy to state and strange to actually live under: parliamentary sovereignty. In his formulation, Parliament has, under the English constitution, the right to make or unmake any law whatever, and no person or body has the right to override or set aside the legislation of Parliament. There is no higher law, no constitutional court empowered to strike an Act down, no entrenched bill of rights immune from ordinary repeal. Whatever the sitting Parliament enacts, by the ordinary legislative process, is law, full stop.

The idea is easiest to grasp through its own limit, which Dicey stated just as plainly: Parliament cannot bind its successors. A Parliament in one decade cannot pass a law that a later Parliament is forbidden to repeal, because that later Parliament has exactly the same unlimited power the earlier one had. Entrenchment, in the sense of a rule that is harder to change than an ordinary statute, does not exist in Dicey's picture of the British constitution. Anything Parliament has done, a later Parliament can simply undo, by the same ordinary vote.

This sits oddly beside Dicey's own rule of law, and he knew it. If Parliament truly can do anything, what stops it passing an unjust law and having that law count, by his own first principle, as entirely regular and entirely supreme? Dicey's answer leaned on what he called the political rather than the legal constraints on Parliament: public opinion, the electoral consequences of an outrageous statute, and the internal culture of a legislature that had, as a matter of practice rather than law, developed habits of restraint. Critics then and now have found this a thinner reed than a real legal limit would be, and much of later constitutional theory, in Britain and in countries that inherited the Westminster model, is an argument about whether Dicey's picture still holds once you add human rights statutes, a devolved Scottish Parliament, or membership in a supranational legal order, each of which looks, to some readers, uncomfortably like exactly the entrenched higher law Dicey said the system did not have.

The reason the idea has lasted, argument and all, is the same reason the rule of law formulation has lasted: Dicey gave a famously unwritten, famously vague constitutional culture a crisp rule you could actually apply to a hard case. Ask any British constitutional lawyer whether a given statute can be repealed by ordinary legislation, and the answer, in the first instance, still runs through the principle Dicey wrote down in 1885, however much the second and third instances have since complicated it.