A.V. Dicey’s postulation of the Rule Of Law

                                                          Constitutional Law

                                                          British Constitution

                                                 
                                                        Topic – Rule of Law

Introduction

The rule of law is a fundamental principle of the British Constitution. The ‘rule of law’ is often seen in contradistinction to the ‘rule of man’. The essence of the concept is that every person, irrespective of rank or status in society, must be subject to the law. Simply put, it indicates that society should be governed, not by the arbitrary whims or men, but by the certainty and clarity of law.

Professor A. V. Dicey

A.V. Dicey’s postulation of the Rule of Law

In his famous book, ‘Introduction to the Study of the Constitution’, Professor A. V. Dicey gave the classic postulation on the ‘rule of law’. According to Dicey, it is comprised of three limbs:

1. No punishment except for a breach of the law
2. Equality before the law
3. General principles of the Constitution derive from common law

Introduction to the Study of the Constitution

Now the points of A.V. Dicey’s postulation of the Rule of Law are discussed one by one in detail. 

Limb I – No punishment except for breach of law

According to Dicey, ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’

Meaning behind Limb I

The meaning behind this limb is that no one should be punished unless they have clearly breached a law currently place and unless that breach of the law is proved beyond doubt in a court of law.

Purpose behind Limb I 

In autocratic governments with no respect for the rule of law, the Government can often detain, imprison and fine people without any justification. In societies where the rule of law is respected, if the Government decides to punish anyone, it must:

• investigate 
• charge the person with a breach of law
• prove that breach of law

Thus, the purpose behind this limb is to ensure that the Government is not allowed to punish people without any authority. It is designed to limit arbitrary or discretionary exercise of executive authority.
Requirements of Limb I

According to Limb I of Dicey’s postulation, it is necessary that:

• Laws should be clear and unambiguous;
• Laws should be publically available (published in an official document);
• The judge must be independent, impartial and neutral; and 
• All parties must be given a right of hearing. 

Analysis of Limb I 

Limb I explicitly disallows retrospective punishment and ordinarily, retrospective punishment is considered illegal and an antithesis of the rule of law. However, there are certain situations where retrospective punishment has been justified in the UK.

For example, where Parliament legislates with retrospective intent – judges have no choice but to follow.

When the HOL awarded compensation for the destruction of oil installations in wartime in the case of Burmah Oil v. Lord Advocate (1965) the Parliament quickly passed the War Damages Act – nullifying the effect of the judgement.

 In R v R (1991), the HOL convicted a man of marital rape, even though at the time of the rape, marital rape was not considered a crime.


Limb II – Equality before the law

According to Dicey, ‘no man is above the law; every man and woman, whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’.

Interpretation of Limb II

Generally, commentators interpret this to mean that every person has the same legal rights, powers and capacities. This is a misinterpretation, since in reality there are many exceptions to this statement. For example:

Exceptions to Limb II

1. Police have special powers above ordinary citizens
2. Foreign diplomats enjoy immunity from certain crimes and actions
3. Acts done by judges in their judicial capacity are exempt from prosecution
4. Parliamentarian enjoy privileges from defamation
5. The Monarch enjoys immunity – under the maxim, ‘Against the King law has no coercive power’ and ‘The King can do no wrong’.

Dicey was well-aware of these exceptions. His real argument was that everyone is answerable to the law. The manner in which government is held responsible is through the process of judicial review.

Judicial review

This is the process through which administrative authorities (such as Ministers, government departments and local authorities are confined by courts to powers granted by Parliament. In an application for judicial review, a judge can decide whether a public body has acted ultra vires or intra vires.

Equality before the Law

Limb III – Principles of the Constitution derive from common law

According to Dicey, ‘the general principles of the constitution (as for example, the right to personal liberty or the right to public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts’.

Interpretation of Limb III

This is the most ambiguous of the three limbs. Dicey spent much of time contemplating on the differences between the British constitution and the constitutions of other European states. In this limb, Dicey highlights his preference for the British Constitution, over those of other states.

According to Dicey, where fundamental rights flowed from judicial decisions, it was much more difficult for a ruler to sweep them inside. On the other hand, where they flowed from a particular statute, they could be swept aside at the ‘stroke of a pen or the point of a sword’.

Thus, he claimed that common law provides the best protection for fundamental rights.

Analysis

It is doubtful whether this still holds true – or if it ever held true at all. After all, despite largely developing from common law, the UK has had to give statutory footing to fundamental rights in the form of the HRA 1998.

                                   Rule Of Law Explained by different Illustrations


Features of the legal process

According to Dicey, if a legal system respected the rule of law – it must exhibit the following features:

Accessibility

The law must be accessible to all. This means that the cost of seeking legal remedies (such as through litigation) must reasonable so as to accommodate a majority of people. Where people are unable to pay for availing the legal process, they must be provided with legal aid (Granger v UK (1990).

Procedural Fairness

1. The law must also exhibit fairness in its procedure. This means that:
2. Judges must be independent, impartial and neutral
3. Jurors must be independent, impartial and neutral
4. Jurors must belong to a representative class of society
5. Proceedings must be intelligible to all parties
6. All evidence must be collected legally.

Rule Of  Law Explained By Triangular Diagram