Criticisms of Dicey’s Theory

 Even though Dicey’s theory has exerted great

influence over the years, it has not been
without criticism, from his contemporaries
up to the modern day
 WilliamRobson in his 1928 book Justice and
Administrative Law criticised Dicey for
misinterpreting aspects of English law –
private citizens were treated very differently
at law than organs of the government
 Robson also said that there were many administrative
courts/tribunals that dealt with matters meaning that
ordinary courts were not dealing with all the disputes
between citizens and the state as Dicey claimed

 Ivor Jennings’s 1933 book The Law and the

Constitution criticised much of Dicey
◦ Jennings said that Dicey’s personal political views
flavoured his theory without Dicey realising it – he
believed he was describing matters as they actually
were– he favoured a laissez-faire approach which
saw too much discretionary power as a danger to
liberty

 But wide discretionary powers exist in government

and did even in Dicey’s day said Jennings
◦ Jennings gave some examples of wide discretionary
powers that existed in Dicey’s time and in his time
too:
 Indefinite imprisonment for contempt of court
 If convicted of manslaughter could be released immediately or
imprisoned for life
 If an alien, naturalisation at total discretion of Home Secretary
 If Queen declares war, prohibited from dealing abroad
 If country is in danger, property can be taken, even without
compensation
 If the authorities want to flood a home to create a reservoir they
can compulsorily purchase it
 A person can be compelled to leave work for a month or more to
fulfil jury service
 Dicey failed to take into account or acknowledge the
powers of authorities, all he was concerned with was
the rights of individuals

 He believed that government only existed to protect

the individual, fitting with his laissez-faire outlook,
so he minimised the ways in which authorities could
intervene in the lives of individuals
 Further, it is not the executive which wields the
largest discretionary power, but Parliament - as it
can pass whatever legislation it wishes, unhindered
by any written constitution – so it not only has wide
power, but unlimited power
 Jennings criticised Dicey’s second aspect saying that
there is not equality before the law – there are many
different classes in law that enjoy different rights and
responsibilities, such as Landlord and Tenant,
Employer and Employee etc
 But Dicey really meant that officials are subject to the
same rules as an ordinary citizen – but even this is
wrong, as officials have special powers over and
above citizens, and he gave some examples:
 Tax collectors possess special powers
 Sanitary inspectors can enter houses to inspect drains,
employer cannot
 Home Secretary can compel a person to complete the
census, though a neighbour cannot
 So Jennings says that what Dicey was essentially referring to
with his second point was that if a public official commits a
tort then he will be liable for it in the ordinary civil courts

 Jennings accepts this is largely true but says it is of such

insignificance why base a doctrine of the grand title ‘The Rule
of Law’ upon this?
 Jennings also has something to say about Dicey’s third
proposition – that the constitution is the result of the
ordinary law of the land

 Jennings says the reverse is also true – that the ordinary law
of the land is the result of the constitution – as Parliament’s
power is the fundamental feature of the constitution, so in
this respect law determines the constitution: they are so
intertwined that they cannot be separated

 Dicey’s political views also overly influenced this aspect of his

theory too says Jennings
 Jennings was not, and is not, the only critic of
Dicey’s theory

 Have a look for yourself and see if you can

find any other critics

 Despite the criticisms and failings of the

theory, it is a good anchorpoint from which
to learn the subject