requires a unity of decision and of responsibility, it rests on a principle of authority.” Dicey’s central insight in this discussion is that divided jurisdiction formed the key element of droit administratif by permitting government interference in the private affairs of citizens. In this way droit administratif is inconsistent with the liberties afforded by the common law.
In America the tradition of exempting administrative authorities from the same liability as private persons has been very strong, and, in some ways, is more suitable for illustrating Dicey’s point than the French droit administratif. The federal government, the state governments, municipal corporations of all kinds, and even some private
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trusts and charities inherited from eighteenth century English law the Crown’s exemption from liability. Only recently have courts been willing to hold for some kind of liability for the non-governmental activities of municipal corporations. Moreover, in the United States legislatures and courts have traditionally been unwilling to make a public officer liable for acts, though clearly unlawful, if they were done through mistake or for probable cause. In such cases, both the official and the institution for which he worked were not to be held liable. Finally, until relatively recently, individual exemption from liability was not balanced by the assumption of liability by the administrative authority.
The rule of law means basically four things: equality of all citizens before the law; uniformity of courts; the unacceptability of raison d’état as an excuse for an unlawful act; and observance of the old maxim, nullum crimen sine lege. Dicey did not say he was opposed to special tribunals to handle technical matters, such as, for example, patents. But he most definitely denied the propriety of conferring quasi-judicial and wide executive authority on administrative agencies. He would be astonished and overwhelmed by the amount of discretionary authority—which in Dicey’s view must be arbitrary and thus, to some degree, outside of the ordinary law of the land—with which we have in recent years invested regulatory agencies and tribunals of administrative law judges. He would certainly be opposed to the power exercised by judges, inspectors, and other officers of government in certain not especially technical areas of the law, such as labor relations, occupational safety, public education, and, in fact, hundreds of others. He would warn us of the inherent dangers in over-reliance on the “expert.”
Dicey thought that there could be practical and moral checks, internal and external, which could restrain the legislative branch from the abuse of its powers. While it is true that the rights of the subject, which collectively make up the rule of law, are in theory precarious, being subject to legislative whim, they are in practice firm. He saw no such guarantees in bureaucratic agencies and administrative tribunals, which, in practice, have wide discretionary powers, especially those in which the officials are appointed on political grounds.
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Dicey is absolutely right in thinking that discretionary authority is the selective and arbitrary use of power—for better or for worse—which may be used to foster political allegiance and to promote political clients. For these reasons, Dicey’s discussion of the rule of law and its relation to executive discretion and judicial control is extraordinarily pertinent for understanding much of what has been happening in the United States in the past half century.
ROGER MICHENER
Committee on Social Thought The University of Chicago
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This book is (as its title imports) an introduction to the study of the law of the constitution; it does not pretend to be even a summary, much less a complete account of constitutional law. It deals only with two or three guiding principles which pervade the modern constitution of England. My object in publishing the work is to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone’s Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England. In furtherance of this design I have not only emphasised the doctrines (such, for example, as the sovereignty of Parliament) which are the foundation of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism on the one hand of the United States, and on the other of the French Republic. Whether I have in any measure attained my object must be left to the judgment of my readers. It may perhaps be allowable to remind them that a book consisting of actually delivered lectures must, even though revised for publication, exhibit the characteristics inseparable from oral exposition, and that a treatise on the principles of the law of the constitution differs in its scope and purpose, as well from a constitutional history of England as from works like Bagehot’s incomparable
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English Constitution, which analyse the practical working of our complicated system of modern Parliamentary government.
If, however, I insist on the fact that my book has a special aim of its own, nothing is further from my intention than to underrate the debt which I owe to the labours of the lawyers and historians who have composed works on the English constitution. Not a page of my lectures could have been written without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the hands of every student. To three of these authors in particular I am so deeply indebted that it is a duty no less than a pleasure to make special acknowledgment of the extent of my obligations. Professor Hearn’s Government of England has taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of the constitution. Mr. Gardiner’s History of England has suggested to me the conclusion on which, confirmed as I found it to be by all the information I could collect about French administrative law, stress is frequently laid in the course of the following pages, that the views of the prerogative maintained by Crown lawyers under the Tudors and the Stuarts bear a marked resemblance to the legal and administrative ideas which at the present day under the Third Republic still support the droit administratif of France. To my friend and colleague Mr. Freeman I owe a debt of a somewhat different nature. His Growth of the English Constitution has been to me a model (far easier to admire than to imitate) of the mode in which dry and even abstruse topics may be made the subject of effective and popular exposition. The clear statement which that work contains of the difference between our so-called “written law” and “our conventional constitution,” originally led me to seek for an answer to the inquiry, what may be the true source whence constitutional understandings, which are not laws, derive their binding power, whilst the equally vigorous statements contained in the same book of the aspect in which the growth of the constitution presents itself to an historian forced upon my attention the essential difference between the historical and the legal way of regarding our institutions, and compelled me to consider whether the habit of looking too exclusively at the steps
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by which the constitution has been developed does not prevent students from paying sufficient attention to the law of the constitution as it now actually exists. The possible weakness at any rate of the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in which an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become.
A. V. DICEY
All Souls College, Oxford, 1885
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The body of this work is the eighth edition, or