The Rule of Law

• Pages: 7-9

CHAPTER 2

In order to understand this concept, the context in which Professor Albert Venn Dicey

first propounded his interpretation of it in 1885 must be examined. We shall then consider

how, in Dicey’s view, the rule of law was alleged to have controlled the legality of official

action. Finally, we shall see how the doctrine has influenced Caribbean constitutional

legal thinking to this day.

THE IDEA AS ORIGINALLY STATED

Dicey’s thesis as originally stated was much too sweeping and doctrinaire. It was in fact

based on a number of misconceptions as to the constitutional and administrative status

quo.

In his now famous work – The Law of the Constitution – Dicey laid down three

fundamental principles, viz:

• No citizen ‘is punishable or can be lawfully made to suffer in body or goods except

for a distinct breach of law established before the ordinary courts of the land. In this

sense the rule of law is contrasted with every system of government based on the

exercise by persons in authority of wide, arbitrary or discretionary powers of

constraint’.1

• The ‘equal subjection’ of all classes to one law administered by the ordinary courts.

• ‘The result of judicial decisions determining the rights of private persons’ before the

courts was what, in Dicey’s view, was the non-codified rule of law.

But when the three elements are carefully considered, the fallacies implicit in them

become manifest.

As regards the lack of arbitrary government, Dicey considered that the English regime

provided certainty of the law, non-discretionary powers and equality before the law. In

his own words:

With us every official, from the Prime Minister down to a constable or a collector of taxes is

under the same responsibility as any other citizen.

On the contrary, he insisted, the French droit administratif provided special provisions

protecting officials. However, as Professor WA Robson has pointed out, the statement

(about the French position) was based on a misinterpretation of French law which did

not, in fact, exempt public officials, but simply permitted dignitaries versed in public

administration to determine the extent to which officials were liable in any given case.

In answer to Dicey’s second assertion that there was an equal subjection in England of

all classes to the laws, Robson pointed to the ‘colossal distinctions’ between the rights and

duties of private individuals and those of administrative cadres in England. Indeed, in

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THE RULE OF LAW

1 Dicey, 1965, p 188.