Dicey and the Rule of Law: The Three Meanings Explained

Dicey's rule of law is the account of the rule of law given by the Oxford jurist A. V. Dicey in his book Introduction to the Study of the Law of the Constitution, first published in 1885. Dicey said the rule of law had three meanings: regular law is supreme over arbitrary power; everyone, officials included, is equal before the ordinary law and the ordinary courts; and the British constitution is the result of court decisions protecting individual rights, not their source.

Almost every later British discussion of the rule of law starts with Dicey, even when it goes on to disagree with him.

Who was A. V. Dicey?

Albert Venn Dicey (4 February 1835 to 7 April 1922) was a British jurist and constitutional theorist. He held the Vinerian Professorship of English Law at Oxford until 1909. He did not invent the phrase "rule of law", which had been used since the 17th century, but he did more than anyone to popularise it.

His book grew out of his Oxford lectures. It was first published in 1885 as Lectures Introductory to the Study of the Law of the Constitution and took its better-known title, Introduction to the Study of the Law of the Constitution, with the third edition in 1889. The eighth edition of 1915 was the last that Dicey revised himself, and later editions were prepared by other editors.

The book identifies two basic principles of the British constitution, the sovereignty of Parliament and the rule of law, and also discusses the conventions of the constitution. In 1984 the political scientist Philip Norton called it the "most influential work of the past century" on the British constitution.

Dicey's three meanings of the rule of law

In the chapter "The Rule of Law: Its Nature and General Applications", Dicey wrote that the rule of law, "which forms a fundamental principle of the constitution, has three meanings".

Meaning	In Dicey's words	In plain English
1. Supremacy of regular law	"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 courts	The state cannot punish you or take your property unless you have broken a law, proved in court. Arbitrary power and wide discretionary authority are excluded.
2. Equality before the law	"every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility" as any other citizen	Officials answer to the same law and the same courts as everyone else, with no special courts for government.
3. Rights come from court decisions	"the constitution is the result of the ordinary law of the land"	Freedoms such as personal liberty were built up by judges deciding individual cases, rather than granted by a written constitution.

The first meaning

Dicey contrasted English government with systems in which officials have wide discretion to arrest, punish or seize. In his phrase, the English "are ruled by the law, and by the law alone". The point is predictability: a person can be punished for breaking the law, but for nothing else.

The second meaning

Dicey's main comparison was with France. French law had a separate body of administrative law, droit administratif, and separate administrative courts for disputes involving the state. Dicey argued that England had nothing really corresponding to this and that officials who exceeded their lawful authority could be sued in the ordinary courts, like anyone else.

The third meaning

This is the most distinctively British part. In countries with written constitutions, rights are often declared first and then applied by courts. Dicey argued that in England the order was reversed: the general principles of the constitution, such as the right to personal liberty or the right of public meeting, were generalisations drawn from judges' decisions about the rights of particular people.

Criticisms of Dicey's account

Dicey's account has been influential, but it has been challenged on several grounds:

• Discretion was already widespread. The constitutional lawyer Ivor Jennings, in The Law and the Constitution, pointed out that many discretionary powers already existed in Dicey's own time, so the claim that the rule of law excluded them did not describe the real constitution.
• Parliamentary sovereignty. Dicey also argued that Parliament had the right "to make or unmake any law". If Parliament can pass any law, critics note, then the rule of law in his sense cannot by itself stop a law that is unjust or that treats some people worse than others.
• Form or substance. Later writers divided over whether the rule of law should be a purely formal idea, as Joseph Raz argued, or should also protect rights, as Trevor Allan argued. Dicey's third meaning ties rights closely to the common law, while today many claims against public bodies rely on the Human Rights Act 1998.

Dicey himself became more pessimistic. In the introduction to the eighth edition he argued that the rule of law had declined in Britain since the book was first published.

How Dicey's idea is used today

Dicey's book is still taught in law schools, and his three meanings remain the usual starting point for anyone studying the British constitution. His second meaning, that no one is above the law, is the simplest summary of the whole idea.

Modern definitions build on him but go further. Lord Bingham's 2010 book The Rule of Law set out eight principles that include human rights and access to justice, explained in our guide to Lord Bingham's rule of law. Parliament referred to "the existing constitutional principle of the rule of law" in section 1 of the Constitutional Reform Act 2005, without defining it, which leaves the courts and writers to fill in the meaning, often starting from Dicey. For an overview of the different definitions, see what is the rule of law.