# The Rule of Law according to A.V. Dicey
## Introduction
The rule of law is a fundamental principle of the UK’s unwritten constitution, suggesting that a nation should be governed by law rather than by the arbitrary power of individuals. While the concept is ancient, the most influential modern definition in the context of UK law was provided by the Victorian jurist Albert Venn Dicey in his work, *An Introduction to the Study of the Law of the Constitution* (1885). Dicey’s theory can be understood through three distinct, yet connected, elements. This essay will explain each of Dicey’s three limbs of the rule of law and will then consider some of the main criticisms that have been made against his formulation, showing that while it is an important starting point, it may not fully capture the complexities of the modern state.
## The First Element: Supremacy of Law over Arbitrary Power
Dicey’s first assertion was that the rule of law means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power” (Dicey, 1915). This means two things. Firstly, no person can be punished or made to suffer in body or goods except for a distinct breach of the law. Secondly, that breach of law must be established in the ordinary legal manner before the ordinary courts of the land. In essence, the state cannot punish its citizens at will; its actions must be authorised by law. This principle is a safeguard against tyranny and random acts of power by the government.
A classic case that illustrates this principle is *Entick v Carrington* (1765), where the King’s messengers broke into a writer’s home and seized his papers under a general warrant from a government minister. The court found that there was no law authorising such a warrant and therefore the action was illegal. The government had to act according to the law, not according to its own will. This element of Dicey’s theory remains a cornerstone of British liberty, ensuring that government power has legal limits.
## The Second Element: Equality Before the Law
The second element of Dicey’s theory is equality before the law. He stated this means “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” (Dicey, 1915). In Dicey’s view, this applied to everyone, from the Prime Minister to a tax collector, in the same way as it does to an ordinary citizen. He contrasted this with the system in France, which had a separate system of administrative courts (*droit administratif*) to deal with cases involving the state or its officials. Dicey believed that a separate system of law for officials was contrary to the rule of law, as it suggested that they were not subject to the same legal standards as everyone else. This principle reinforces the idea that no one is above the law.
## The Third Element: The Constitution is the Result of the Ordinary Law
Dicey’s third element is the most specific to the UK’s constitutional arrangements. He argued that in the UK, “the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts” (Dicey, 1915). In other words, constitutional rights and freedoms were not granted by a formal document or a written constitution, but emerged from the common law through cases decided by judges. Rights were protected because the courts would provide a remedy if they were infringed. For Dicey, this practical, case-by-case protection of liberty was more effective than grand declarations of rights in a formal constitutional document which might not be enforceable.
## Criticisms of Dicey’s Theory
Despite its influence, Dicey’s theory has faced significant criticism, most notably from Sir Ivor Jennings. Jennings argued that Dicey’s account was an idealised view that did not reflect the reality of the modern state (Jennings, 1959). Firstly, the idea that government has no arbitrary or discretionary power is unrealistic. Modern governance requires officials and public bodies to have wide-ranging discretionary powers to provide services, regulate industries, and manage the economy. The key issue is not the existence of such power, but ensuring it is controlled by law through mechanisms like judicial review.
Secondly, the concept of “equality before the law” can be questioned. While officials are subject to the law, they also have powers that ordinary citizens do not, such as a police officer’s power of arrest. Equally, certain officials may have legal immunities, and until the Crown Proceedings Act 1947, the Crown itself could not be sued in tort. This shows that not everyone is treated equally in all circumstances.
Finally, Dicey’s third element, which prioritises the common law, now seems outdated. While the common law remains important, a huge body of statute law passed by Parliament now governs the country and grants citizens rights. Most significantly, the Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law, providing a formal text of rights that judges must consider, a development that runs contrary to Dicey’s preference for judge-made constitutional principles.
## Conclusion
In conclusion, A.V. Dicey’s three-part definition of the rule of law provided a powerful and enduring framework for understanding a key principle of the UK constitution. His emphasis on the supremacy of regular law, equality before it, and the role of the common law in protecting rights highlights the value placed on legal certainty and individual liberty. However, as critics like Jennings have pointed out, Dicey’s theory was a product of its time and fails to account for the necessary growth in state power and the extensive role of Parliament in the modern era. While his ideas are no longer a complete description of the UK’s constitutional reality, they remain a vital starting point for any discussion on the relationship between the state and the law.
## References
- Dicey, A. V. (1915) An Introduction to the Study of the Law of the Constitution. 8th edn. Macmillan.
- Entick v Carrington (1765) 19 St Tr 1030.
- Jennings, I. (1959) The Law and the Constitution. 5th edn. University of London Press.
