Turning the Rule of Law into an English Constitutional Idea
Edward Elgar Publishing, Handbook on the Rule of Law, 2018
26 Pages Posted: 24 Jul 2018 Last revised: 6 Sep 2019
Date Written: July 5, 2018
In response to highly selective recent treatment, Dicey’s rule of law contribution is presented, not merely as coining or popularising the well-known phrase, but as multi-faceted. It was the express, methodical and comprehensive incorporation of the rule of law as one of two pervasive constitutional principles, which accorded with his various nineteenth-century expectations or understandings of the English constitution. They are distinguished as expectations of method, national specificity, remedial effectiveness, congruity of first principles, and historicity. The chapter explains to what extent Dicey’s exposition of the rule of law, relative to comparable earlier leading writings on the English constitution, answered those expectations. Dicey’s expectation of congruity of the constitution’s first principles is shown to have been of particular strength, importance and distinctiveness. It affords normative interpretivists good reason both to claim continuity with one prominent facet of Dicey’s contribution and to avoid suspicion of interpretivist distortion by unnecessarily overstating that continuity or by ignoring other such facets.
This draft chapter has been published by Edward Elgar Publishing in 'Handbook on the Rule of Law' (Chapter 10) edited by Christopher May and Adam Winchester (see ElgarOnline). Published in 2018, it is complemented by Chapter 9, the SSRN version of which is available at: https://ssrn.com/abstract=3219199.
Keywords: Dicey’s rule of law, constitutional understandings, nineteenth-century, constitutional principles, normative interpretivist
Suggested Citation: Suggested Citation