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.
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.
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.
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
ABRAHAM RIMANDO, Petitioner, vs. NAGUILIAN EMISSION TESTING CENTER, INC., Represented by Its President, ROSEMARIE LLARENAS and HON. COURT OF APPEALS, Respondents.
ABRAHAM RIMANDO, Petitioner, vs. NAGUILIAN EMISSION TESTING CENTER, INC., Represented by Its President, ROSEMARIE LLARENAS and HON. COURT OF APPEALS, Respondents.
