4.2 Pre-requisites of Rule of Law

(a) Dicey's three principles (the classic statement) A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885): Supremacy of regular law — no punishment except for a distinct breach of law established in the ordinary courts; absolutism and arbitrary prerogative excluded. Equality before the law — every person, whatever their rank, is subject to the ordinary law and the ordinary courts; officials answer in the same courts, under the same law, as citizens. Predominance of the legal spirit — rights are not derived from written constitutions but from judicial decisions; the constitution is the result of individual rights recognised by the courts. Critiques of Dicey (essential for full marks): The welfare state needs discretion (licences, planning, taxation) — the zero-discretion model is obsolete; the modern doctrine substitutes controlled discretion (hearings, reasons, reviewability); Dicey's hostility to droit administratif misread French administrative law, which also limits power, by different means; Equality before the law is incomplete without equality in the law — formal equality tolerates substantive inequality (hence modern anti-discrimination and affirmative provisions); The third principle is parochial — it mistakes England's unwritten tradition for a universal requirement; Ivor Jennings' barb: Dicey's rule of law means only "the rule of enforcing the law" — bad law satisfies it as well as good (the apartheid-state problem). (b) Modern formulations —…