Av Diceys Views of the Rule of Law

1400 Words6 Pages
Critically evaluate A.V. Dicey’s exposition of the “Rule of law” and its continuing relevance today. In Introduction to the Study of the Law of the Constitution, Professor A.V. Dicey offered a neutral description of the rule of law. He argued that the rule of law has three aspects. Firstly, no one c...an be punished except for a distinct breach of law. Secondly, irrespective of rank, everyone is equal and subject to one law. Thirdly, courts are the better protectors of human rights and freedom. However, the principles are controversial and criticized by other jurists. On the other hand, in today’s world of increasing terrorism, due to national security and the evolution towards greater equality in the development of law, the Parliament may somehow contradict the orthodox theory by legislating and the courts may make decisions against the theory. By evaluating the doctrine of the rule of law and illustrating the challenges posed to the traditional theory, we will see how the theory is relevant today. The first principle of the rule of law is no one can be punished except for a distinct breach of law. It was designed to protect the individual from any secret or arbitrary laws because secret or arbitrary laws are incapable of justification. The element also implied that no retrospective penal law can be legislated. If such law is imposed, the individual is placed in the position where his conduct was lawful at the time of his action but, subsequently, he is convicted as if his early conduct was unlawful. This is contrary to the first element – No man can be punished except for a distinct breach of law. Wright J in Re Athlumney stated ‘…unless that effect cannot be avoided without doing violence to the language of the enactment…it ought to be construed as prospective only.’ The courts employ the presumption of statutory interpretation against retrospectivity.
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