It is interesting to point out, however, that there can be circumstances whereby ones obligation to obey the law may become eroded. For example, in a dictatorship, laws are the will of one (or at least few) exerted upon the masses via coercive methods. The obligation to obey the law is eroded as it is no longer reflective of the positive morality of the masses, which, in a sense validates its authority. Next we must explore Dicey's notion of equality before the law. This, on the surface, appears to be simple and straightforward.
As he put it "the equal subjection of all classes to the ordinary law of the land as administered by the ordinary courts" 4. Jacques Rousseau, usually a critic of Dicey's agreed on this. The sovereign "knows only the nation as a whole and does not distinguish between the individuals who compose it" 10. However, like all aspects of the rule of law, being a dynamic and flexible concept, this notion cannot be fully understood without being placed in context. "There are producers and consumers, officials and non- officials, farmers and manufacturers, soldiers and civilians, married men and bachelors, adults and minors.
What is to be understood by treating them all alike or imposing the same burdens on all, when their situations, capacities, duties, and obligations are different and ought to be so? " 11. It is possible to see how orthodox interpretation of Dicey's 'equality before law' can lead us astray. In actual fact, almost all legislation makes distinctions, and perfectly necessary ones, between members of society in order to achieve its aims. This, once again is a feature of positive interventionalist state legislation, in particular since the introduction of the Welfare State.
The need is to eliminate unfair or unjust distinctions in society, such as sex, race and religion. Acts such as the Sex Discrimination Act and Race Discrimination Act are examples of Dicey's true notion of equality being upheld. Indeed, not only should the law be free from unfair discrimination, but also a modern addition to this view is that all members of society should have equal access to a legal remedy. "Equality before the law is not assured if justice is denied to those with insufficient means.
The introduction of legal aid in 1949 was designed to provide such equality, however during the 1990's it became obvious that this objective was not being achieved, due to the structuring of the qualification scale. The Access to Justice Act 1999 aimed to rectify the problem by concentrating aid on cases of social welfare, but we must wait and see if this will provide greater equality. Finally, Dicey focussed on what he saw as the constitutional importance of the rule of law. He thought that the common law provided better protection of the rights of the individual than a codified system of law.
There are strong arguments on both sides of this issue. The common law can be seen as providing deeper foundations for the protection of rights as it has embedded within its very nature hundreds of years of morality, principle and convention, whereas a bill of rights is simply a document. The European Convention on Human Rights has also reinforced this protective element of the common law in terms of the rights of individuals and has created consensus within the member states as to what these rights should be. In conclusion I return to the questions central to this issue that I previously posed.
It can be argued that the rule of law is too vague or intangible to offer better protection of individual liberty than a codified set of constitutional rights. At least if the law is laid down on paper then it is surely more accessible and easier to obey. I, however feel the arguments against this carry far more substance. To begin with, codification would require unnecessary time, money and effort to be spent by the executive and the judiciary who are undoubtedly pressured for these resources in the first place. If there is no problem in the first place, why devise a remedy?
Finally, there have been various interpretations of the doctrine of the rule of law, each carrying slightly different connotations. It can, however, be said that we all, even without knowing it by name, have a general idea of what the rule of law entails. Indeed the majority of us put its principles into practice every day of our lives. The reason for this is that central to the rule of law is morality, in social, legal and political terms. Even though some of Dicey's expositions of the rule now seem archaic, the general principle behind each of them still remains intact and forms an integral part of the British constitution today.
It is the upholding of morality and reason rather than written rules (it can be said only as good as their draftsmen) and faith in the judiciary that gives the rule its seemingly eternal constitutional relevance.
1. Principles of Administrative Law, G. J. Griffith and H. Street, (5th ed) 1973, p22. 2. The Notion of The State, d'Entreves, p71. 3. See Entick v. Carrington (1765) 19 St Tr 1030, Lord Camden. 4. Introduction to the Study of the Law of the Constitution, A. V. Dicey. 5. Constitutional and Administrative Law, A. W. Bradley, K. D. Ewing, (12th ed) 1997, p103. 6. The British Constitution Now, Ferdinand Mount, (1992), p66.
7. Nevil Johnson, Memorandum to the Treasury and Civil Service Committee, Fifth Report, HC 27 – III of 1993-4, Appendix 10. 8. Discretionary Justice, Kenneth Culp Davis, (1971), p42. 9. The Crown Proceedings Act, 1947. 10. Social Contract, Book 2, Chap. iv. 11. Constitutional Conventions, The Rules and Form of Political Accountability, Geoffrey Marshall, (1984) 12. British Government and The Constitution, Colin Turpin, (4th ed), (1999).