Book section : Chapter
What Dicey forgot
- Abstract:
- For over a century, Dicey’s account of the rule of law dominated constitutional scholarship and, like any successful academic exercise, has not lacked critics. Recently, that criticism has focused on the relationship between the rule of law and empire. Within the United Kingdom, or, more precisely, within Britain, the eulogisation of Dicey’s rule of law was understandable, after all, the principle served as a guarantor of liberty. It ensured that limits on liberty were grounded in law and, crucially, those limits were knowable; people were free to act as they pleased, save in those areas in which the law proscribed conduct. Outside of Britain, within the British Empire, the rule of law played a very different role, justifying both the imperial project and particular acts of coercion by the imperial powers. Rather than protecting liberty, the rule of law became a tool of domination and oppression. This chapter argues that the imperial critique of Dicey is correct, but that the remedy can be found in Dicey’s own work, in his discussion of sovereignty and in the hints he dropped about the social basis of the rule of law. In each case, a link is drawn between the community and the law that regulates it, a link that renders the rule of law morally defensible and efficacious. This chapter argues that Dicey’s rule of law becomes radically less attractive when it is divided from the community the law governs, and that a fuller understanding of the rule of law shows that the principle weighs against the imperial project.
- Publication status:
- Published
- Peer review status:
- Peer reviewed
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- Files:
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(Preview, Version of record, pdf, 672.2KB, Terms of use)
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- Publisher copy:
- 10.5040/9781509975105.ch-009
Authors
- Publisher:
- Hart Publishing
- Host title:
- Twenty-First Century Perspectives on the Scholarship of AV Dicey: The Enduring Legacy of a Victorian Constitutionalist
- Pages:
- 173-184
- Chapter number:
- 9
- Place of publication:
- Oxford
- Publication date:
- 2024-11-18
- Edition:
- 1
- DOI:
- EISBN:
- 9781509975099
- ISBN:
- 9781509975075
- Language:
-
English
- Subtype:
-
Chapter
- Pubs id:
-
1560139
- Local pid:
-
pubs:1560139
- Deposit date:
-
2023-11-07
- ARK identifier:
Terms of use
- Copyright holder:
- Nicholas Barber
- Copyright date:
- 2024
- Rights statement:
- © The editors and contributors severally 2024.
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