Introduction to the Study of the Law of the Constitution. A. V. Dicey

Чтение книги онлайн.

СКАЧАТЬ the principle. By the rule of law he means: 1) the absence of arbitrary or discretionary power on the part of government; 2) every man is subject to the ordinary law of the land administered by ordinary and usual tribunals; 3) the general principles of law, the common law rules of the constitution, in contradistinction to the civil law countries of Europe, are the consequences of rights of the subject, not their source. To illuminate this difference Dicey contrasts the rule of law with the French idea of droit administratif, which he translates as administrative law.

      Dicey makes the point that in Great Britain in 1885 there was no distinction between private and public law. One set of laws regulated and one system of courts adjudicated public and private interests alike. In subsequent decades this point ceased to be valid.

      [print edition page xxi]

      In Great Britain the officers of government were subject to the ordinary law of the land enforced by ordinary courts just as the private citizen was. In France, under the provisions of droit administratif, the government and its officials had special rights against private citizens and were to a great extent free from the jurisdiction of the ordinary courts. However nearly the French and English systems approach one another in actual practice, the principles governing them are different. The English system seeks to afford remedies for illegal administrative action, whereas the French hopes by setting up standards of conduct and by deterrent action to insure that the remedies will not be needed. Dicey saw that the rights of the citizen were potentially endangered by discretionary executive authority, because he equated discretion with arbitrariness, which meant that it was not subject to the rule of law. He claimed “discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects. . . . In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” Letourneur, one of the most prominent modern French writers on droit administratif, has made a similar point: “Droit administratif is by nature a law of inequalities, in which the private person, who represents purely private interests, cannot be put on the same footing as the administration charged with the task of conducting public services in the general interest.” Because, he continues, “administrative action requires a unity of decision and of responsibility, it rests on a principle of authority.” Dicey’s central insight in this discussion is that divided jurisdiction formed the key element of droit administratif by permitting government interference in the private affairs of citizens. In this way droit administratif is inconsistent with the liberties afforded by the common law.

      In America the tradition of exempting administrative authorities from the same liability as private persons has been very strong, and, in some ways, is more suitable for illustrating Dicey’s point than the French droit administratif. The federal government, the state governments, municipal corporations of all kinds, and even some private

      [print edition page xxii]

      trusts and charities inherited from eighteenth century English law the Crown’s exemption from liability. Only recently have courts been willing to hold for some kind of liability for the non-governmental activities of municipal corporations. Moreover, in the United States legislatures and courts have traditionally been unwilling to make a public officer liable for acts, though clearly unlawful, if they were done through mistake or for probable cause. In such cases, both the official and the institution for which he worked were not to be held liable. Finally, until relatively recently, individual exemption from liability was not balanced by the assumption of liability by the administrative authority.

      The rule of law means basically four things: equality of all citizens before the law; uniformity of courts; the unacceptability of raison d’état as an excuse for an unlawful act; and observance of the old maxim, nullum crimen sine lege. Dicey did not say he was opposed to special tribunals to handle technical matters, such as, for example, patents. But he most definitely denied the propriety of conferring quasi-judicial and wide executive authority on administrative agencies. He would be astonished and overwhelmed by the amount of discretionary authority—which in Dicey’s view must be arbitrary and thus, to some degree, outside of the ordinary law of the land—with which we have in recent years invested regulatory agencies and tribunals of administrative law judges. He would certainly be opposed to the power exercised by judges, inspectors, and other officers of government in certain not especially technical areas of the law, such as labor relations, occupational safety, public education, and, in fact, hundreds of others. He would warn us of the inherent dangers in over-reliance on the “expert.”

      Dicey thought that there could be practical and moral checks, internal and external, which could restrain the legislative branch from the abuse of its powers. While it is true that the rights of the subject, which collectively make up the rule of law, are in theory precarious, being subject to legislative whim, they are in practice firm. He saw no such guarantees in bureaucratic agencies and administrative tribunals, which, in practice, have wide discretionary powers, especially those in which the officials are appointed on political grounds.

      [print edition page xxiii]

      Dicey is absolutely right in thinking that discretionary authority is the selective and arbitrary use of power—for better or for worse—which may be used to foster political allegiance and to promote political clients. For these reasons, Dicey’s discussion of the rule of law and its relation to executive discretion and judicial control is extraordinarily pertinent for understanding much of what has been happening in the United States in the past half century.

       ROGER MICHENER

       Committee on Social Thought The University of Chicago

      [print edition page xxiv]

      [print edition page xxv]

PREFACE TO THE FIRST EDITION

      This book is (as its title imports) an introduction to the study of the law of the constitution; it does not pretend to be even a summary, much less a complete account of constitutional law. It deals only with two or three guiding principles which pervade the modern constitution of England. My object in publishing the work is to provide students with a manual which may impress these leading principles on their minds, and thus may enable them to study with benefit in Blackstone’s Commentaries and other treatises of the like nature those legal topics which, taken together, make up the constitutional law of England. In furtherance of this design I have not only emphasised the doctrines (such, for example, as the sovereignty of Parliament) which are the foundation of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism on the one hand of the United States, and on the other of the French Republic. Whether I have in any measure attained my object must be left to the judgment of my readers. It may perhaps be allowable to remind them that a book consisting of actually delivered lectures must, even though revised for publication, exhibit the characteristics inseparable from oral exposition, and that a treatise on the principles of the law of the constitution differs in its scope and purpose, as well from a constitutional history of England as from works like Bagehot’s incomparable

      [print edition page xxvi]

      English Constitution, which analyse the practical working of our complicated system of modern Parliamentary government.

      If, however, I insist on the fact that my book has a special aim of its own, nothing is further from my intention than to underrate the debt which I owe to the labours of the lawyers and historians who have composed works on the English constitution. Not a page of my lectures could have been written without constant reference to writers such as Blackstone, Hallam, Hearn, Gardiner, or Freeman, whose books are in the hands of every student. СКАЧАТЬ