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    Criticisms of Dicey's Theory

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    Manjare Hassin Raad
    This document summarizes criticisms of A.V. Dicey's theory of the rule of law from his contemporaries and modern scholars. William Robson and Ivor Jennings both highlighted examples where Dicey mischaracterized or failed to acknowledge aspects of the British legal system that contradicted his theory, such as the existence of administrative courts and wide discretionary powers of authorities. Jennings in particular argued that Dicey's theory was overly influenced by his own laissez-faire political views and did not provide an accurate description of how the British constitution functioned in practice.

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    Criticisms of Dicey's Theory

    Uploaded by

    Manjare Hassin Raad
    1K views13 pages
    This document summarizes criticisms of A.V. Dicey's theory of the rule of law from his contemporaries and modern scholars. William Robson and Ivor Jennings both highlighted examples where Dicey mischaracterized or failed to acknowledge aspects of the British legal system that contradicted his theory, such as the existence of administrative courts and wide discretionary powers of authorities. Jennings in particular argued that Dicey's theory was overly influenced by his own laissez-faire political views and did not provide an accurate description of how the British constitution functioned in practice.

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    RoL 2

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    This document summarizes criticisms of A.V. Dicey's theory of the rule of law from his contemporaries and modern scholars. William Robson and Ivor Jennings both highlighted examples where Dicey mischaracterized or failed to acknowledge aspects of the British legal system that contradicted his theory, such as the existence of administrative courts and wide discretionary powers of authorities. Jennings in particular argued that Dicey's theory was overly influenced by his own laissez-faire political views and did not provide an accurate description of how the British constitution functioned in practice.

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    © All Rights Reserved
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    1K views13 pages

    Criticisms of Dicey's Theory

    Uploaded by

    Manjare Hassin Raad
    This document summarizes criticisms of A.V. Dicey's theory of the rule of law from his contemporaries and modern scholars. William Robson and Ivor Jennings both highlighted examples where Dicey mischaracterized or failed to acknowledge aspects of the British legal system that contradicted his theory, such as the existence of administrative courts and wide discretionary powers of authorities. Jennings in particular argued that Dicey's theory was overly influenced by his own laissez-faire political views and did not provide an accurate description of how the British constitution functioned in practice.

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    Criticisms of Dicey’s Theory

     Even though Dicey’s theory has exerted great


    influence over the years, it has not been
    without criticism, from his contemporaries
    up to the modern day
     WilliamRobson in his 1928 book Justice and
    Administrative Law criticised Dicey for
    misinterpreting aspects of English law –
    private citizens were treated very differently
    at law than organs of the government
     Robson also said that there were many administrative
    courts/tribunals that dealt with matters meaning that
    ordinary courts were not dealing with all the disputes
    between citizens and the state as Dicey claimed

     Ivor Jennings’s 1933 book The Law and the


    Constitution criticised much of Dicey
    ◦ Jennings said that Dicey’s personal political views
    flavoured his theory without Dicey realising it – he
    believed he was describing matters as they actually
    were– he favoured a laissez-faire approach which
    saw too much discretionary power as a danger to
    liberty

     But wide discretionary powers exist in government


    and did even in Dicey’s day said Jennings
    ◦ Jennings gave some examples of wide discretionary
    powers that existed in Dicey’s time and in his time
    too:
     Indefinite imprisonment for contempt of court
     If convicted of manslaughter could be released immediately or
    imprisoned for life
     If an alien, naturalisation at total discretion of Home Secretary
     If Queen declares war, prohibited from dealing abroad
     If country is in danger, property can be taken, even without
    compensation
     If the authorities want to flood a home to create a reservoir they
    can compulsorily purchase it
     A person can be compelled to leave work for a month or more to
    fulfil jury service
     Dicey failed to take into account or acknowledge the
    powers of authorities, all he was concerned with was
    the rights of individuals

     He believed that government only existed to protect


    the individual, fitting with his laissez-faire outlook,
    so he minimised the ways in which authorities could
    intervene in the lives of individuals
     Further, it is not the executive which wields the
    largest discretionary power, but Parliament - as it
    can pass whatever legislation it wishes, unhindered
    by any written constitution – so it not only has wide
    power, but unlimited power
     Jennings criticised Dicey’s second aspect saying that
    there is not equality before the law – there are many
    different classes in law that enjoy different rights and
    responsibilities, such as Landlord and Tenant,
    Employer and Employee etc
     But Dicey really meant that officials are subject to the
    same rules as an ordinary citizen – but even this is
    wrong, as officials have special powers over and
    above citizens, and he gave some examples:
     Tax collectors possess special powers
     Sanitary inspectors can enter houses to inspect drains,
    employer cannot
     Home Secretary can compel a person to complete the
    census, though a neighbour cannot
     So Jennings says that what Dicey was essentially referring to
    with his second point was that if a public official commits a
    tort then he will be liable for it in the ordinary civil courts

     Jennings accepts this is largely true but says it is of such


    insignificance why base a doctrine of the grand title ‘The Rule
    of Law’ upon this?
     Jennings also has something to say about Dicey’s third
    proposition – that the constitution is the result of the
    ordinary law of the land

     Jennings says the reverse is also true – that the ordinary law
    of the land is the result of the constitution – as Parliament’s
    power is the fundamental feature of the constitution, so in
    this respect law determines the constitution: they are so
    intertwined that they cannot be separated

     Dicey’s political views also overly influenced this aspect of his


    theory too says Jennings
     Jennings was not, and is not, the only critic of
    Dicey’s theory

     Have a look for yourself and see if you can


    find any other critics

     Despite the criticisms and failings of the


    theory, it is a good anchorpoint from which
    to learn the subject

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