“Dicey’s classical definition of the rule of law is now irrelevant.” Discuss.
‘The Rule of Law’ was first popularised by Dicey and encompasses primarily a range of basic principles and values which taken together give stability, rationality and consistency to the rule of those with legal power, thereby ensuring that the government only exercises its power in accordance with the law. However, there is a divergence between those such as Dicey who interpret a formal conception of the Rule of Law as a procedural device addressing the manner in which the law was promulgated and the clarity of the subsequent legislation, and those who espouse a substantive conception which in addition passes judgment on the content of the law. Through the case law, it is evident that although Dicey’s classical definition is certainly not irrelevant, the courts have enforced a broader concept of the Rule of Law consisting of formal and substantive values, which is desirable in that it enables a more sufficient protection of citizens’ rights against arbitrary government action.
As a minimum, Dicey’s Rule of Law means that the government is subject to the law so must exercise its power in accordance with it, thereby distinguishing the law from state interest, public policy and the arbitrary power of government. This is illustrated in Entick v Carrington1, which held that a public officer must show express legal authority for interference with the person or property of a citizen, which allows the courts to hold acts of public authorities invalid and ultra vires when they are beyond their legal powers conferred by the Parliament. Raz2 is another proponent of a formal conception of the Rule of Law, in which it encompasses formal values but does not pass judgment upon the actual content of the law. As a result, there should be access to justice, an independent judiciary and due process, which ensures that citizens are allowed individual redress against officials not acting within the scope of their power and a fair hearing in procedural terms. Clearly, the courts uphold as a minimum the formal values associated with this conception of the Rule of Law as can be seen in R v Horseferry Road Magistrates’ Court, ex p Bennett 3, whereby the House of Lords held that the judiciary accepts a responsibility for the maintenance of the Rule of Law, which demands the courts take notice when the enforcement agency breaches the law in order to secure the presence of the accused within the jurisdiction of the court.
However, there is a fundamental divergence between this formal conception and those who espouse a broader substantive conception of the Rule of Law, which also passes judgment on the content of the law. This wider conception, as portrayed through Dworkin’s ‘rights conception’4, argues that citizens have moral rights with respect to one another and political rights against the State, which are recognised in positive law and therefore may be enforced through courts by individuals. In various cases, the courts have placed substantive values within the concept of the Rule of Law, thereby going beyond the formal conception envisaged by Dicey. In R v Secretary State, ex p Venables5, Lord Steyn stated it was contrary to both the separation of powers and rule of law to change the sentence of a prisoner due to the popular demand of citizens, as in undertaking a judicial function, the Home Secretary had to act impartially and not take into account public opinion. These broader notions of fairness, justice and a refusal of arbitrary discrimination used to deem the Home Secretary’s action unlawful evidently go beyond a formal conception by involving substantive elements and values under the concept of the Rule of Law. However, while the courts have incorporated certain substantive values under the notion of the Rule of Law, it is evident that they do not consider all moral and political rights to be enforceable under this concept as Dworkin does.
Instead, the common law shows the courts have taken a middle view, which is broader than a purely formal conception of the Rule of Law, by encompassing within it a number of substantive rights and values. While the scope of the Rule of Law is not sufficiently broad and elastic to serve as a principle upholding all the necessary elements of a rights-based democracy, such as the full range of rights protected under the Human Rights Act 1998, it is broad enough to include both formal and substantive values making it a fundamental feature of a constitutional democracy. As conveyed by Jowell6, the Rule of Law is a principle of institutional morality acting as a constraint on the uninhibited exercise of government power through the judiciary’s willingness to strike down executive action if ‘unreasonable, arbitrary or capricious’.
In conclusion, the Rule of Law encompasses a range of values and principles which give rationality and consistency to the rule of those with legal power, in order to ensure that government exercises its power in accordance with the law. Whilst the Rule of Law is not considered a completely substantive concept, in which it would lose its independent function, the courts have clearly interpreted the Rule of Law as embodying not only the formal values identified by Dicey and Raz but also certain substantive rights, such as fairness, democratic accountability and respect for human dignity.
1 (1765) 19 St. Tr. 1030.
2 Raz, “The Rule of Law and its Virtues”, (1977) 93 LQR 195.
3  1 AC 42.
4 Craig  PL 467.
5  AC 407.
6 “The Changing Constitution” (6th edition, 2007).
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