Dicey, the Rule of Law and the Quarrel with Droit Administratif
Chapter Fourteen
Syllabus topic 1, "Concepts and Agencies"
Pages 42 to 44 of 430
In one line
Dicey said England had the rule of law and France had droit administratif, and that the two were opposites; he was wrong about France, and the mistake shaped a century of English thinking.
In the wording a student can write in an exam: Dicey's conception of the rule of law had three limbs, the absence of arbitrary power, equality before the ordinary law administered by the ordinary courts, and a constitution which is the result of the ordinary law of the land; he treated droit administratif as the negation of the second limb, and later modified his view.
Why this chapter is here
Because MU asks how judicial control in common law countries differs from the French system, and the honest answer begins with the reason English lawyers thought the two systems were opposed. That reason is Dicey. This chapter also does the second job of defining the rule of law, which the rest of the book uses without further explanation.
The three limbs of Dicey's rule of law
One, the supremacy of regular law as opposed to arbitrary power. No man is punishable except for a distinct breach of law established in the ordinary courts. Wide discretionary authority in the government is inconsistent with the rule of law.
Two, equality before the law. Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. There is no special law and no special court for officials.
Three, the constitution is the result of the ordinary law. The general principles of the English constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases brought by private persons, rather than of a written guarantee.
What Dicey said about droit administratif
He said it rested on two ideas foreign to English law: that the government and its officials have rights against private citizens which are determined by a special body of rules, and that the ordinary courts have no jurisdiction over disputes between officials and citizens. He treated a system of that kind as a system of official privilege and therefore as the opposite of the rule of law.
Why he was wrong
He mistook a separate court for a partial court. The Conseil d'Etat is not a department; it decides against the administration constantly, and its members' careers do not depend on the ministries they judge.
He mistook special rules for lenient rules. French liability law is in important respects harder on the State than English law then was, because it developed without sovereign immunity and recognised liability without fault.
He misread his own system. English law was already full of statutory discretions and special tribunals when he wrote, and the Crown then enjoyed immunities a French administration did not.
Dicey, the Rule of Law and the Quarrel with Droit Administratif
He himself changed his mind. In an article of 1915 he accepted that droit administratif had come to protect the citizen effectively and that England had developed something like administrative law of its own.
What survives of Dicey, and it is a great deal
The first limb survives everywhere. The whole of Module II of this syllabus, the grounds of review, is the working out of the proposition that discretion must not be arbitrary. In India it survives in constitutional form, because E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is antithetic to arbitrariness and that an arbitrary act is for that reason unequal and violates Article 14.
The second limb survives in modified form. Officials in India are subject to the ordinary law and to the ordinary courts, and the growth of tribunals has not changed that in principle, because L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, keeps the High Courts above every tribunal.
The third limb does not apply to India at all. India's rights are in a written Constitution rather than in judicial decisions, and India's rule of law is stronger for it, because a right founded on the Constitution cannot be taken away by an ordinary Act.
The rule of law in the Indian Constitution
The phrase appears nowhere in the text, and the content is spread across it. Article 14, equality before the law and the equal protection of the laws. Article 13, which voids a law inconsistent with the fundamental rights. Article 21, which requires a procedure established by law and, after Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure that is right, just and fair. Article 20, which forbids retrospective criminal law. Articles 32 and 226, without which the rest would be declaratory. The Supreme Court has held the rule of law to be a basic feature of the Constitution.
A worked example
A State passes an Act providing that no officer of a particular department shall be liable in any civil or criminal proceeding for anything done under the Act, and that any question about the application of the Act shall be decided by the Secretary of the department whose decision shall be final.
On Dicey's second limb both provisions offend the rule of law: the first creates a special immunity, the second creates a special judge. On the Indian Constitution the analysis is sharper and produces a firmer answer. A blanket immunity clause is read down to protect only acts done in good faith. A finality clause does not exclude the High Court under Article 226, on the authority of [The Finality Clause], and a provision that truly ousted the High Court would be unconstitutional under L. Chandra Kumar.
Dicey, the Rule of Law and the Quarrel with Droit Administratif
What this does NOT mean
It does not mean discretion is unlawful. Dicey's first limb, taken literally, would make the modern State impossible. What the law requires is not the absence of discretion but its control.
It does not mean India follows Dicey. It follows a written constitution, which is the opposite of his third limb.
It does not mean droit administratif and the common law are converging into one thing. They are converging, but the institutional difference remains and is the point of MU's question.
Quick revision
Dicey's three limbs: no arbitrary power; equality before the ordinary law in the ordinary courts; a constitution that is the result of ordinary judicial decisions. He treated droit administratif as official privilege and as the negation of the second limb. He was wrong: the Conseil d'Etat is a real court, French liability law is stricter than he supposed, English law already had discretions and tribunals, and he modified his view in 1915. The first limb is the foundation of Module II and appears in India as the arbitrariness doctrine in Royappa; the second survives in modified form; the third does not apply to a country with a written constitution.
Test yourself
1. State Dicey's second limb and explain why droit administratif offended it. That every man is subject to the ordinary law and to the ordinary courts; droit administratif offended it because officials were judged by special rules in special courts.
2. Give two reasons why Dicey's criticism is now rejected. The Conseil d'Etat is an independent and demanding court, and French liability law developed without sovereign immunity and so was in important respects stricter than the English law of his time.
3. Where does Dicey's first limb appear in Indian constitutional law? In the arbitrariness doctrine under Article 14 stated in E.P. Royappa, which makes an arbitrary act unequal and therefore unconstitutional.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.