Dicey's exposition of rule is base on holy misconception. he has not foresee
the evolution of system, due to which his thesis not support administrative
INHERENT AMBIGUITY - decision of parliament always based on majority's
decision. in this sense majority holds arbitrary powers.
IF PARLIAMENT ENACTED BAD LAW - if parliament passes a bad law then is
the rule of law consider it a supremacy of law?
He did not anticipate the increased need for discretionary powers in the modern State and
the need for legal control of such powers. Dicey's opposition to discretionary power has
been characterized as being driven by his opposition to government intervention.
Discretion is now seen as necessary for the decision making required in an increasingly
However, discretion should still be constrained by values of the rule of law,
such as fairness, impartially and equality.
This first principle also cancel out the fact that, as a matter of essential competence,
many present day statutes allow police the power to detain people for a short period
of time due only to a reasonable suspicion.
New devices have been instituted to give relief to the individual against mal-administration
and subtle abuse of discretionary power:
SC guidelines and Judicial review
Jeffrey Jowell :
“….in the modern state discretion is necessary to carry out a variety of welfare and
regulatory tasks. Nevertheless, the Rule of Law contains a number of important values,
including legality, certainty, accountability, efficiency, due process and access to justice.
These are not only formal values but also substantive. The Rule of Law is not a theory of
law but a principle of institutional morality inherent in any constitutional democracy. “
EQUALITY BEFORE LAW
Members of the police force may be able to exercise considerably more lawful
power over members of society than the average citizen lawfully could.
It is not true that those public officials and private citizens have the same rights,
and are thus equal. “A tax investigator, for example, has powers which the
taxpayer does not possess”.
The principle of equality before the law has raised significant problems for
the rule of law.
It would be unjust if the law failed to account for social difference and
disadvantage, and simply presumed that everyone was equal and should be
Dicey's explanation of legal certainty provides insufficient protection for individual rights and
freedoms because it is more concerned with due process than the content of laws.
Dicey's rule of law provides no criterion for deciding whether a statute excessively restricts
civil liberties. Theoretically, Dicey's definition of rule of law would allow an Act of Parliament
to authorize torture so long as it was sufficiently precise in its terms.
The requirements of the rule of law can still be met if these decisions are taken within
a framework of ..open, stable, clear and general rules....
Joseph Raz agrees that governments need discretionary powers
but thinks that the law limit how they are exercised and therefore, no discretion is absolute.
This curbs out Dicey’s doubt regarding seed of despotism being planted.
Lord Bingham (in 2010)argues that there are eight principles which should be used to
define the meaning of the rule of law:
The law must be accessible, intelligible, clear and predictable.
Questions of legal right and liability should ordinarily be resolved by application of the law
and not the exercise of discretion.
The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation.
The law must afford adequate protection of human rights.
Means must be provided for resolving, without excessive cost or delay, civil disputes
which the parties cannot resolve themselves.
Ministers and public officers must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without exceeding
the limits of such powers.
The adjudicative procedures provided by the State should be fair.
The State must comply with its obligations in international law.
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