Dicey's Concept of the Rule of Law: Three Meanings, Merits, Criticism and Relevance in India

No single writer has shaped the vocabulary of public law as much as Albert Venn Dicey. His exposition of the rule of law, published in 1885, gave the principle its classic form, fixed the terms in which lawyers still discuss it, and, through its hostility to a separate administrative law, influenced the development of the subject in every common law country, including India. To study Dicey's concept properly is to state his three meanings exactly, to understand what he was arguing against, to weigh the criticism his account has attracted, and to see how much of it survives in the Indian Constitution. This topic does each of these in turn.

1. Dicey and the Setting of his Work

A.V. Dicey (1835 to 1922) was Vinerian Professor of English Law at Oxford. His lectures were published in 1885 as An Introduction to the Study of the Law of the Constitution, which went through many editions in his lifetime and remains the classic account of the English constitution. Dicey identified two great principles as the foundation of that constitution: the legislative sovereignty of Parliament and the rule or supremacy of law. The rule of law was, for him, the feature that distinguished England from the continental States of his day, whose administrations, he believed, exercised wide discretionary and arbitrary powers over the citizen.

The phrase itself was not invented by Dicey. The idea descends from Aristotle's preference for the government of laws over the government of men, from Bracton's maxim that the King is under God and the law, and from Sir Edward Coke's assertion of the supremacy of law against the Stuart claim of prerogative. Dicey's contribution was to organise the idea into three precise meanings and to attach to it a polemical contrast with the French droit administratif. The French expression la principe de legalite, the principle of legality, conveys the same idea: a government founded on law and not on the will of men.

2. The Three Meanings

Dicey stated the rule of law in three distinct but connected propositions, and every serious answer on this topic must reproduce them accurately.

2.1 First meaning: supremacy of law and absence of arbitrary power

Three elements are contained in this first meaning: punishment only for a breach of law, not of the mere will of an official; proof of that breach in the ordinary legal manner, that is, by regular procedure and evidence; and adjudication before the ordinary courts. The proposition excludes arbitrary power, and, in Dicey's uncompromising version, even wide discretionary power, because where the administration has discretion the citizen's position depends on official choice rather than on fixed law. This is the element of his doctrine that the modern administrative State has most clearly outgrown.

2.2 Second meaning: equality before the law

This meaning has two aspects: the universal subjection of all classes, including the government and its officers, to one law; and the administration of that one law by one set of courts. It was this second aspect that led Dicey to condemn the French system, under which claims against the administration went not to the ordinary courts but to administrative courts headed by the Conseil d'État. To Dicey, a separate law and a separate forum for officials looked like official privilege, and he concluded that administrative law in the French sense was unknown to England and inconsistent with its constitution. The often quoted remark that in England 'we know nothing of administrative law, and we wish to know nothing' is a popular summary of this attitude.

2.3 Third meaning: the constitution as the result of the ordinary law of the land

This meaning is peculiar to England, which has no written constitution. In continental systems, Dicey observed, rights are declared in a constitutional document and may be suspended with it; in England, rights are embedded in the ordinary law, built up case by case, and are for that reason harder to sweep away. The proposition celebrates the judge-made character of English liberty, and it is the part of Dicey's doctrine that translates least well to countries such as India, where a written Constitution is itself the source of rights.

3. Merits of Dicey's Exposition

Before criticism, the achievement should be recorded, because it explains the doctrine's longevity.

1. He gave the principle a precise and teachable form. The three meanings turned a diffuse political ideal into propositions that courts and writers could apply, and they remain the starting point of every discussion of the rule of law.
2. He fixed attention on arbitrariness. The insight that the real enemy of liberty is arbitrary power, rather than strong power as such, is the core of the doctrine and survives every criticism of its details. Indian law has built its entire Article 14 jurisprudence on this insight.
3. He insisted on the accountability of officials. The demand that officers of the State answer for unlawful acts like any other citizen remains a touchstone of legality, and it underlies the modern law of State liability and of remedies against the administration.
4. He linked rights to remedies. The third meaning, whatever its parochialism, contains the enduring truth that a right is worth only as much as the machinery for enforcing it, a truth the Indian Constitution honours by making the remedy under Article 32 itself a fundamental right.

4. Criticism of Dicey's Concept

Dicey's account has been criticised on grounds that are now standard, and later English writers, including Sir Ivor Jennings in The Law and the Constitution and W.A. Robson in Justice and Administrative Law, developed them in detail.

1. Discretion is not the same as arbitrariness. Dicey equated the two, but a modern State cannot be governed without discretionary power. The genuine requirement of the rule of law is not the absence of discretion but its control: conferment by law, exercise for proper purposes, on relevant considerations, fairly and reasonably. Administrative law is precisely the law of controlled discretion.
2. Even in Dicey's England equality was incomplete. The Crown could not be sued in tort until the Crown Proceedings Act, 1947; judges, foreign sovereigns and diplomats enjoyed immunities; and public authorities held statutory powers no private person possessed. The second meaning stated an ideal, not the actual law.
3. He misjudged droit administratif. Dicey assumed that separate administrative courts must favour the administration. In fact the Conseil d'État developed a jurisprudence of State liability and of review for excess of power that protected the citizen at least as effectively as the English courts, and often more so. In later work, including his 1915 article 'The Development of Administrative Law in England', Dicey himself acknowledged both the merits of the French system and the growth of administrative adjudication in England after decisions such as Local Government Board v. Arlidge, [1915] AC 120.
4. His denial retarded English administrative law. Because the subject officially did not exist, its rules grew unsystematically, and England had to wait until the mid-twentieth century, and the reforms and decisions that followed the Donoughmore and Franks Committees, for a coherent system.
5. The third meaning does not travel. Experience has not shown that judge-made rights are more secure than entrenched constitutional rights. A written constitution with judicial review, as in India, protects rights against the legislature itself, which the English arrangement cannot do.
6. The account is purely formal. Dicey's rule of law says nothing about the content of the law. A formally regular law can still be unjust. The modern concept, expressed in the Declaration of Delhi of the International Commission of Jurists (1959), adds a substantive dimension: the rule of law requires conditions in which the dignity and the social and economic needs of the individual are respected.

5. Dicey's Concept in Indian Law

The Indian Constitution absorbed the sound core of Dicey's doctrine while discarding its errors. The first meaning lives in the guarantee against arbitrariness that the Supreme Court has located in Article 14, and in the requirement of authority of law for every administrative act. The second lives in Article 14 itself and in the subjection of the government to the ordinary courts through Articles 32 and 226; India has tribunals, but they function under the superintendence of the constitutional courts, so the unity of the legal order that Dicey prized is preserved. The third meaning is replaced, and improved upon, by a written Constitution whose rights are enforceable against every organ of the State and whose core cannot be amended away.

6. The Doctrine in Summary

1. Dicey's rule of law comprises three meanings: the supremacy of law and the absence of arbitrary power; the equal subjection of all, including officials, to the ordinary law administered by the ordinary courts; and a constitution that is the result, not the source, of individual rights.
2. Its enduring merits are the precise formulation of the principle, the identification of arbitrariness as the central evil, the accountability of officials, and the linkage of rights to remedies.
3. Its established defects are the confusion of discretion with arbitrariness, the overstatement of equality, the misjudgment of droit administratif, the resulting delay in the growth of English administrative law, the parochial third meaning, and its purely formal character.
4. Indian constitutional law preserves the core of the doctrine, in the non-arbitrariness principle of Article 14 and the subjection of government to the courts, while discarding its errors and entrenching the principle in the basic structure.
5. Dicey therefore remains the starting point of the subject, but in India he is a starting point that the Constitution has both corrected and outgrown.

7. Related Topics and Provisions

• Rule of Law: the Indian Constitution and Exceptions (Topic 8): the full treatment of the rule of law in India, its constitutional anchors and its recognised exceptions.
• Droit Administratif and Droit Administratif vs Rule of Law (Topic 12): the French system against which Dicey framed his doctrine.
• Separation of Powers (Topic 10): the companion structural principle.
• Administrative Discretion and its Control: the modern law that answers Dicey's fear of discretion.
• Historical Development of Administrative Law (Topic 2): Dicey's place in the English story, from 1885 to his 1915 reassessment.
• Constitution of India: Articles 13, 14, 21, 32, 226; the basic structure doctrine.