Freeman

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Book Review: Introduction to the Study of the Law of the Constitution by A. V. Dicey

MARCH 01, 1983 by TOMMY W. ROGERS

(Liberty Classics, 7440 North Shadeland, Indianapolis, Ind. 46250) • 435 pages • $15.00 cloth; $7.00 paperback

Dicey (1835-1922) held a professorship at Oxford for twenty-seven years. He was heir to the first academic post created specifically for the study of English law, the Vinerian Professorship at Oxford, established in 1758, and of which Sir William Blackstone was the first incumbent. The fruitfulness and productivity of Dicey’s tenure in this chair was such as to make it known as the second founding. Dicey, said a subsequent incumbent, is entitled to a similar place in the legal literature of the nineteenth century as Blackstone holds in the history of legal literature in the eighteenth century.

Law of the Constitution—published in 1885, revised edition, 1915—was based on Dicey’s professorial lectures. The “rule of law” idea is one of the organizing principles of the book. While Dicey did not create the phrase, he did bring the concept into currency and was responsible for the elaboration of its principles. The rule of law means one law for all men alike. It means that “no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man’s legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man’s individual rights are far less the result of our constitution than the basis on which that constitution is founded.”

Dicey noted the emergence of administrative law between 1885 and 1914 with a corresponding decline in the ancient veneration for the rule of law in England; there was, he said “a marked tendency towards the use of lawless methods for the attainment of social or political ends.” Dicey was referring to legislative acts which gave judicial or quasi-judicial authority to “officials who stand more or less in connection with, and therefore may be influenced by, the government of the day, and hence have in some cases excluded, and in others indirectly diminished, the authority of the law Courts.”

Dicey contrasts the rule of law with administrative law which, he writes, was “unknown to English judges and counsel . . . In England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown.”

Dicey, with his opposition to “law” propelled by administrative agencies as a contravention of the rule of law, would be astonished by the amount of discretionary authority which has come to be vested in regulatory agencies and tribunals of administrative law judges in our country today, which makes this classic study more pertinent than ever.

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March 1983

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