Wednesday, August 11, 2010

Dicey's rule of law

 

 The notion of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the latter was clearly superior to the former.In more recent times, it is Albert Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. He laid out his three principles of the rule of law in his 1885 book An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution):

  • everyone is equal before the law
  • no one can be punished unless they are in clear breach of the law
  • there is no set of laws which are above the courts
Although few would argue with the first two principles, the third principle is actually quite contentious as it is incompatible with the notion of a written constitution since such a constitution would be above the courts. This simple fact leads us to have to consider Dicey's views on written vs unwritten constitutions.This is really where the problems begin for the law student.

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