Whether to rely on Dicey’s doctrine is subjective as there are as many reasons against it just like reasons for. It is a mixture of behavior most likely in line to support the view that, “there is no good without harm”. Whatever the Diceys doctrines hold is as much fundamental to the current constitution. It is therefore important to evaluate the strength of this doctrine in regard to the prevailing circumstances.
AV Dicey just like other scholars like Erskine May played an important role in coming up with British general law. In particular Dicey in his book, An Introduction to the Study of the Law of the Constitution (1885), outlined two principles to which are fundamental to British law; the parliament sovereignty and the rule of law. In the journal, Macquarie Law Journal, Stewart (2004) outlined the efforts given by Dicey towards British constitutionalism in particular having given meaning to the fact that British state was founded on both universal and general law, Dicey became famous particularly to fact that his version of the law was accepted and same has since remained as legal discourse till today. It is therefore in order to rely on his earlier findings to analyzing the British constitutional arrangement. In fact there is no harm in relying in his work, Stewart Camoron (2004)
Stewart Camoron (2004), in the journal, Macquarie Law Journal in his work noted that, Dicey’s version of law comprises of three classic views. He outlined that the regular law in in any way whatsoever is supreme over any arbitrary and unrestricted powers and that no one is indictable except for a breach of the law as established in the ordinary lawful routine.
He also argued that in his second view of regular law that everybody is equal and subjected to normal law as administered by the court, Stewart Cameron (2004). He noted that not even government officials are excluded from obedience to this law. At this point much credit should be given to Dicey because it sought to protect both the “young” and the “big” from extortion by those in authority. It is important to rely on this view of Dicey since it was not selfish driven idea to include this version in the constitution but rather an all times acceptable view to the rule of law. His work was at all time well motivated that is why it denied even those in authority to even create distinct person or organization of law to deal with breaches that relates to government officials.
In the same journal by Stewart Cameron, Dicey also proposes in his work that the rule of law and the privileges it guards are as a result of the customs of the ordinary law. Here it is to be noted that English Constitution accepts the fruit of fights conducted on in the benches on behalf of the privileges of persons, (Stewart 2004).
It is often argued and same is reiterated by Stewart (2004), that Dicey’s principles were a narrow scope of his times, his explanation of the rule of law needs to be recited together with the upbringing of his principles and the prevailing political image. The prime inspiration as outlined in the Macquarie Law Journal is the nineteenth era unautocratic individuality where all the government authority, is understood as forcible in Dicey’s constitutional model Stewart (2004). Another major inspiration is a faith in the common law procedure to meritoriously plot out the roles and limits amongst the national and the individual. .
Some scholars argue and same is reiterated in the Macquarie Law Journal that Relying on Dicey’s vision of the rule of law has an integral vagueness because of its profuse origins. Stewart (2004). Close observation to his definitions leaves a lot to be discussed. From this point, the principles of the rule of law and parliamentary sovereignty seem to be incompatible and their combination too seems to be incompatible, Stewart (2004).
Where as some scholars (Walker) argued that relying on Diceys work is inconsistent, incompatible particularly in relation to parliamentary sovereignty and rule of law, there is no harm in relying on his work since even then he gave explanations to every happening. Dicey made an effort to overcome their (Walker) logical differences in two means. Firstly, he noted, it was the sole responsibility (task) of judges to determine the meaning of law where such overriding issues arose. Here Dicey earns more points against his critics he created a flexible yet crucial point of view in dealing with law. He did not only rely on one point but rather created ways to solution. From this view Dicey meant that decrees could be understood so as to not clash and this makes Diceys work more consistent to people s need therefore there is no harm relying on it. He also argued that relying on conservative democracy of the English will in itself help solve any the differences and or conflicting issues.
In a more elaborate ways it is often argued that Dicey’s solutions to the struggle between issues at hand were unsound and same is pointed out in Stewart (2004). This therefore makes it unreliable in so far as it may be used to analyze British constitutional arrangement. It is pretty obvious that Dicey misjudged the admiration that judges would put to the tenor of parliament, Stewart (2004).
Stewart (2004) provided yet another propounding reason against the use of Dicey’s doctrine is that he considerably flaws the nature of the evolving democracy and in particular failed to foresee the degree to which governmental influence would grow into the isolated domain this is per Macquarie Law Journal. To add more weight to the reasons against, Dicey’s model of great symbolic administration does not offer Anglo-Australian law through adequate safety measure for separate liberty, since it no more defines the genuineness of answerable government .
Stewart (2004) provided yet another reason why Dicey’s theory of exterior and interior limits and the political dominance of the people cannot be used as a basis of British constitutionalism, that is, it does not explain to the citizens and or intended users how the marginalized would be successfully secured from biased legislation. Generally any law should be applicable equally to any person whether where. Because of this, several scholars have argued that it does not qualify to be used.
It is also argued and same is supported by Stewart (2004) that Dicey’s theory was founded on a “night watchman” state, which had only very restricted controlling functions and that it was not flexible enough to withstand the changing nature of functions of that state Dicey’s theories could not house the development of nations roles, which is mainly characterized by some scholars like Friedman, Stewart (2004).
The last but not the least argument against the use of Dicey’s doctrine for British constitutionalism as outlined in the Macquarie Law Journal by Stewart (2004), is that his series of legal thinking for explaining parliamentary supremacy is viewed to be based on heterogeneous Yet he could not cite any precedence in support of the doctrine, furthermore he could not point to any authority to it in any statute or legitimate mechanism.
Whether or not to rely on this doctrine depends on the intellectual capability and reasoning behind the parties concerned. Much as it may lack references and case to rely on, it may be helpful just like has been outlined. It is therefore in order for those charged with the constitutional affairs to critically analyze the document and buy all the relevant ideas and where possible back them and or supplement them with other sources to come up with more comprehensive constitution.
Brian Galligan, ‘Parliamentary Responsible Government and the Protection of Rights’ (1993) 4 Public Law Review 100.
Wolfgang Friedmann, The State and The Rule of Law in a Mixed Economy (1971)
Dike, above n 31, 106; Geoffrey de Q Walker, ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion’ (1985) 59 Australian Law Journal 276, 276.
De Q Walker, ibid Stewart Cameron, (2004), The Rule Of Law And The Tinkerbell Effect: Theoretical Considerations, Criticisms And Justifications For The Rule Of Law; Macquarie Law Journal A W B Simpson, ‘The Common Law and Legal Theory’ in A W B Simpson (ed), Oxford Essays in Jurisprudence, second series (1973) 96.
Arguably the most complete and intellectually sound defence of parliamentary sovereignty is found in Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999).
George Winterton, ‘Extra-Constitutional Notions in Australian Constitutional Law’ (1986) 16 Federal Law Review 223, 231