ABSTRACT
AV Dicey’s writing on the rule of law has had a lasting influence on constitutional thought. His writing will be considered in detail below, pp 91-102. However, Dicey has been criticised by Sir Ivor Jennings for being motivated, in his writings, by his conservative views. Dicey, in expressing his preference for clear and stable rules and the minimum of discretion within the legal process, was, according to Jennings, revealing his conservative preference for certainty within law rather than concern for the law being directed towards social justice which necessarily entails much discretionary power in the application of broad rules. Jennings (1959b, p 311) writes that Dicey was ‘concerned not with clearing up of the nasty industrial sections of the towns, but with the liberty of the subject’. For Jennings, Dicey’s view that ‘Englishmen are ruled by the law, and by the law alone’ is ‘not enough’:
For Jennings, the doctrine implies, first, that the state as a whole must be regulated by law; secondly, that the separation of powers is implied within the doctrine in order to prevent dictatorship or absolutism. Accordingly, there are incorporated certain basic requirements15 of the law: equality before the law; clearly defined police powers; clear general rules adjudicated upon by the courts; non-retrospectivity in penal statutes; and the strict construction of penal statutes. Thirdly, the doctrine incorporates the principle of equality: a notion which Jennings concedes is as vague as that of the rule of law itself (1959b, p 49). Moreover, and of prime importance, the rule of law implies the notion of liberty.
