CONSTITUTION AND ADMINISTRATIVE LAW

Constitution and Administrative Law

Constitution and Administrative Law

Introduction

Albert Venn Dicey was a British jurist whose constitutional theory proved remarkably influential among scholars, politicians, civil servants, and lawyers. For much of the twentieth century, the dominant view of the constitution revolved around Dicey's work, especially his emphasis on parliamentary sovereignty. It is even arguable that the influence of Dicey on politicians, civil servants, and judges was such that they actively fashioned the constitution to bring it closer to his view. Dicey's major work, Introduction to the Study of the Law of the Constitution (1885), focused on three basic constitutional principles: parliamentary sovereignty, the rule of law, and the role of constitutional conventions (Meny, 2003, 320).



Parliamentary Sovereignty

Dicey argues that the sovereignty of Parliament is the dominant characteristic of the British constitution. Parliamentary sovereignty means that Parliament (composed of the king, the House of Lords, and the House of Commons) can make or unmake any law that it chooses, and no other person or institution can overrule its laws. Parliament is the only body with the authority to make laws. Hence, parliamentary sovereignty implies the subordination of the judiciary. The judiciary cannot challenge an act of Parliament.

This attempt to subordinate the judiciary might appear to fall before the common law. The common law appears to allow judges to make laws by establishing precedents, which are then binding on their successors. Dicey argues, however, that the practice of the common law does not contradict the supremacy of Parliament, for judicial legislation is subordinate to acts of Parliament. Crucially, for Dicey, there is nothing in the British constitution akin to the judicial review provided by the Supreme Court in the United States. To the contrary, Parliament ultimately has supreme authority in every jurisdiction, including the rights of the individual.

It might seem now that parliamentary sovereignty has a curious resemblance to the kind of despotism that so enraged many eighteenth- and nineteenth-century radicals. Parliament appears to be a leviathan against which individuals have no appeal and from which they can expect no redress. Dicey counters this objection by arguing that two limitations circumscribe the actions of even the most despotic ruler. First, no prudent government would knowingly pursue a morally repugnant law that might incite people to revolt. Second, even tyrants who may possess the power to make unilateral decisions are unlikely to take certain actions given the cultural context in which they govern.

Rule of Law

If parliamentary sovereignty appears as a counter to popular participation, the rule of law is, for Dicey, a counter to parliamentary despotism. The rule of law describes the relationship of the government to the courts. Dicey defines it more narrowly than do most commentators. He identifies it with known rules, equality, and respect for precedent. For a start, Dicey argues that government operates in accord with known rules not based on arbitrary caprice or discretion. In addition, Dicey suggests that Britain, unlike its counterparts, has long boasted a notion of equality before the law, according to which ...