Dicey was an incredibly important figure in the development of the Rule of Law in contemporary Britain. The Rule of Law, in a modern context, has been developed through many different societies; however, the liberal understanding of the role of government and law in British society today is very much the result of Dicey’s philosophical input. Dicey suggested that individuals cannot be punished in any way unless they have committed some sort of transgression against a law that has been established by the rightful government and Courts in the realm. Dicey also suggested that an important characteristic of the Rule of Law is the universality of law: no individuals are above or below the law, and the law applies equally to all. Finally, Dicey suggested that there are general principles of law that cannot be abridged; these rights were determined, according to Dicey, through judicial due process and litigation. He notes that this is clearly a contrast between Britain and other societies, which utilize a constitution or other document to enumerate the rights of the individual and citizen, rather than the judicial system.
A. V. Dicey's interpretation of the concept of the rule of law needs to be construed mainly as a tale of the achievement of common law with respect to formation of the government under the constitutional scheme. Even though on the face of it Dicey seems to have been primarily writing in relation to institutional form of justice, or even just the aspect of legality, his analysis was founded in the backdrop of constitutional tenet of Great Britain. He stated that a conceptualization of the rule of law was contingent on scrutiny of English law with regard to issues such as civil liberties, freedom of expression, and the right to assemble. Dicey's stress on the same treatment of all segments of the society by the general legal set up of the country controlled by the judicial mechanism, was not just an appeal for legality, by which public officers would come under the purview of lawful control, but more of a statement of the particular pre-eminence of the judiciary as the main proponent of judge-made law. The law of public administration which Dicey felt was blatantly against British traditions meant that a separate organ of law controlling conflicts concerning public officers was to be controlled by a particular set of judicial bodies.
Dicey was hugely influenced by the school of utilitarianism. However, fundamentally his inclination towards the judge-made law was premised on less theoretical, and more numerical foundations than the ones propounded by the earlier philosophers. The common law as a whole provided more improved security for civil entitlements since constitutionally sanctioned rights were frequently without due protection and could be revoked without any problem. Common law security could not be obliterated in the absence of a wholehearted revolution within the administrative set up of the country. Therefore, while the two ideals of sovereignty coupled with the doctrine of rule of law could be conflicting, they may additionally supplement one another. The presence of an administration based primarily on representation made sure that the desires of the subjects would overlap with the ones pertaining to the ruling Parliament. There shall be hardly any substantial issued regarding individual freedom. As far as the issues are the concerned, the third aspect of this doctrine, the security of civil entitlements offered by common law was a better backing than other entitlements provided under the constitutional mechanism. Whether this type of the proposition is worth its merit is a question that deserves serious examination.
An identical topical nexus can be observed between Dicey's analysis of sovereignty and customs. For Dicey, the primary objective of such customs was to make sure that the law makers or the executive indirectly established by the legislators should broadly implement the will of the subjects. Customs, viewed as a contemporary code of ethical aspect of the constitution indirectly protected the greater interests of the subjects. Dicey's sustained conviction in the self-rectifying type of a people's government and of the authority of legislators to regulate the executive wing of the government, both come out strongly in his theorization. In his theory, Dicey proposes to highlight the manner in which customs made sure of voting rights. The doctrine that the authority of the monarch must be wielded through the executive who are members of the Parliament and garner respect of the lower house actually entails that the selected part of the Parliament shall be in effect, although through indirect means, in securing appointment of the ministers in the government. Additionally the Monarch, or the executive, must finally meet, or at any cost not violate, the desire of the lower house. However, as the procedure of representing the electorate is nothing but a method via which the wishes of the lower house are made to overlap with the desire of the country as a whole, it may be concluded that a doctrine which governs the appointment and regulation of the administration primarily to the lower house is fundamentally a provision which provides the election and regulation of the ministers to the country.
Interestingly, it was Dicey's doctrine which helped in reinforcing sovereignty advertising "rule of law" over and above dominance by the Parliament. The two key components of Dicey's doctrine had both an explanatory and a implicit flavour. In explanatory terms, it was construed that the general law was the dominant force, exertion of administrative discretion was missing and that all subjects were on the receiving end of the general legislation of the realm. The public authority rested with the lawmakers. One of the basic features of this theory, the dominance of the general judicial institutions and the ordinary law over all else, continued to exert influence. The general judiciary had fought numerous wars with both national and regional judiciary, and had achieved victory on a number of instances. Dicey's key achievement was to propel this success to the stage of an extraordinary constitutional landmark, and to offer a launching pad from which the logic could be stretched to other segments. The permeability intrinsic in the idealization of jurisdiction retained the veil that the judiciary was merely incorporating the legal authority, and was conforming to the sovereignty of the legislator. Dicey's novel doctrine provided a dose of respectability to this authority by strengthening the foundation of the precept that it was spontaneous, appropriate and an issue of constitutional tenet that the general judiciary should be paramount and that the general legislation needs to be all-encompassing. The emphasis placed upon the ordinary courts and the ordinary law as the cornerstone of the rule of law provided ammunition for those who advocated increased judicial intervention. It was all too easy to take the conceptual step of assuming that an increase in such judicial action would further the supremacy of both the general scheme of legislations and the basic judiciary, that this would augment the regulation of the legal framework, and was therefore an issue to be promoted.
In addition to customs, there are other equally important tenets graced with constitutional gravity, out of which the doctrine of rule of law is a landmark principle. Much prior to the enactment of the Human Rights Act, the doctrine had been considered, as would have been contemplated by Dicey, as a proposition restricting the administration even sans filing of lawsuit or threatening to do, the refusal of Parliamentarians to accede to the administration's desire to restrict judicial review being a classic instance in this regard. In his analysis of R. v Attorney General, Vernon Bogdanor, one of the most astute commentators on this doctrine, realizes that the doctrine may now, as against Dicey's contemplations, be competing with parliament's authority as our key constitutional tenet. However, the authority of this landmark doctrine traces back way before the changes introduced in 1997 and, with additional tenets such as principle of equality before law, has acted as a way to keep functioning over a sustained span of time at the pinnacle of a parliamentary system by mandating the legislator to express with clarity if it desires to contravene the precepts under the doctrine of rule of law.
The most landmark characteristic of the Human Rights Act, though, is that it offers a new dimension to democratic values as being not just regarding administration by majority but about the requirement for administrators to be restricted in its authority to contravene human rights and the doctrine of rule of law.
The Constitutional Reform Act 2005 states in the very first section that the law does not negatively cast an impact on the prevailing constitutional doctrine of rule of law or current constitutional function of Lord Chancellor with respect to the doctrine. This section clearly demonstrates the significance that the rule of law entails in the contemporary era, which is additionally portrayed in the oath administered to Lord Chancellors per the provisions of the Act, to adhere to the doctrine and protect the freedom of the judicial institution. However, the law does not explain the current constitutional doctrine of rule of law, or the judge's current constitutional function with respect to it.
The import of this current constitutional tenet may undoubtedly have been considered to be too succinct and comprehensible to term for the purpose of a statutory explanation, and it is correct that the doctrine has been customarily perused by Law Chancellors in constructing their judgments. Most contemporary analysts would not accede to the fullest extent to Dicey's adverse reaction to the execution of administrative discretions. However, the basic truth of Dicey's standpoint remains. The bigger and more shoddily coloured an exercise of discretion is, whether bestowed on public officer or a chancellor, the bigger the chance for random action and arbitrary exercise of power, which is antithetic to the doctrine of the rule of law.
The foundation for the impliedly exercised constitutional authority of the upper house, and now the Supreme Court, can be traced in the lawmaking function of a contemporary and democracy-based doctrine of the rule of law in addition to the parallel refuting of the idea that administrative authority might be considerably resistant to review by the courts. The continuous enlargement of review by the courts and degradation of non-justifiability principles, which rise against Dicey’s one dimensional interpretation of sovereignty, offer the most clarified proof of the increasing alterations to the judiciary’s function within the supreme law of the land. The high limit of this chain of thought remains in Lord Hoffmann’s analysis of the tenet of legal aspect of the doctrine in R. v Secretary of State for the Home Department. Through the regulating framework of the judge made law, Hoffmann provides clarity on one of the most debated and ambiguous topics in current public legal discussion: the conflict between the lawful restrictions mandated by the doctrine and the literally unlimited legal authority exercised by the law maker.
The doctrine of the rule of law is therefore the final regulating parameter on which the supreme law of the land is premised and may well be required for a democratic set up. In ultimate analysis, the judiciary may in specific cases on constitutional issues require to relax the strict mandate of the law for achieving justice in those special instances. In a manner identical to equity, which relaxes the hardships of the judge-made law, the doctrine of rule of law makes sure that the institutional legal precept of parliament's authority does not strip itself of core values of the supreme law which are of monumental significance in special situations. In the words of Lord Hoffmann, the precept of lawfulness can be overwhelmed by the distinct mandate of statutory text, which preserves the authority of Parliament yet most certainly cuts into the idea of England as a special form of democracy that grants recognition to diversity and secures the entitlements of the communities with lesser representation. All in all, it will be wise to conclude that the doctrine of rule of law requires the judiciary to dissect legislative enactment and also to make sure that its implementation does not lead to unfair treatment in deserving instances.
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