Dicey’s Ghost and Administrative Law

DOI10.1177/0095399702034001003
Date01 March 2002
Published date01 March 2002
Subject MatterArticles
ADMINISTRATION & SOCIETY / March 2002Rohr / DICEY’S GHOST AND LAW
Albert VennDicey, the greatBritish constitutional scholar of the 19th century, is best known
in the fieldof administrative law for his denial of even the possibility of administrative law in
common-law countries. This article puts Dicey’sfamous denial in a context that establishes
the relevance of his constitutional scholarshipfor contemporary administrative law. Exam-
ples are drawn fromthe United Kingdom and the United States to support this position.
DICEY’S GHOST AND
ADMINISTRATIVE LAW
JOHN A. ROHR
Virginia Tech
A recent biographer of Albert Venn Dicey states correctly and without
qualification that his “Law of the Constitution has remained the most
influential constitutional textbook of the last [19th] century” (Cosgrove,
1980, p. 113).1Despite Dicey’s prominence as a great British constitu-
tional scholar, he seldom merits more than an obscure footnote in contem-
porary American legal textbooks. If his name appears at all, it is most
likely found in administrative law literature, where he is summarily dis-
missed as a bookish exotic who “effectively interred the idea of adminis-
trative law in England by denying its existence” (Verkuil, 1986, pp. 685-
686).
It is true that Dicey did deny not only the existence but also even the
possibility of administrative law in England and all other countries that
follow English law,but this is not the whole truth. Dicey’sposition is richer
and more complex than bald assertions of his rejection of administrativelaw
8
AUTHOR’SNOTE: This article is based on a paper originally presented at the Conference
on the Legacyof the Common Law, sponsored by the International PoliticalScience Associa-
tion in London, July1999. Portions of it are taken fromor based on parts of Chapters 2 and 4
of my forthcoming book, Civil Servantsand Their Constitutions, which is copyrighted by the
University Press of Kansas and used with its permission. I am gratefulto the Woodrow Wil-
son Center in Washington,D.C. for providing the opportunity to do the researchfor this arti-
cle during my 9-month stay there as a fellow.
ADMINISTRATION& SOCIETY, Vol.34 No. 1, March 2002 8-31
© 2002 Sage Publications
might suggest. More important, a careful examination of Dicey’s curious
position on administrative law might help us understand the origins and
peculiar nature of the advanced administrative state we findin the United
Kingdom and the United States today. Consequently, I have divided this
article into three sections. The first examines what Dicey actually had to
say about administrative law. The second and third use Dicey’s ideas to
analyze certain trends in contemporary administrative law in the United
Kingdom and the United States, respectively.
I
Dicey’s denial of the possibility of administrativelaw was not due to a
failure to recognize the growth of administrative institutions in the world
around him from 1885 to 1915, the years during which he worked on the
first eight editions of his classic text. Rather, the denial flowedquite logi-
cally from his definition of law as “any rule which will be enforced by the
courts” (Dicey, 1985, p. 40). Because administrative law is necessarily
enforced by institutions other than a court, its status as law was doomed
from the outset. This is why Dicey (1985) could assert so confidently that
“the words ‘administrative law’are unknown to English judges and coun-
sel, and are in themselves hardly intelligible without further explanation.”
Conceding that “administrativelaw” is the “most natural rendering” of the
French droit administratif,he found this translation and any other transla-
tion fundamentally flawed because “the want of a name arises at bottom
from our non-recognition of the thing itself” (p. 330). Consequently,
throughout the treatise, he nearly always used the untranslated (and for
Dicey untranslatable) droit administratif rather than administrative law.
The constant use of the French term reinforces its foreign origin and its
unsuitability for common-law countries.
Dicey’s jurisprudence rested on two fundamental principles that were
closely related to one another: the sovereignty of Parliament and the rule
of law.For Dicey, the rule of law wascrucial precisely because Parliament
was sovereign.In practice, the rule of law meant the independence of Eng-
lish judges, which served as a safeguard against “the unscrupulous use of
power by a Governmentwhich finds itself in command of a majority of the
House of Commons” (E.C.S. Wade, 1985, p. xxiii). Although the princi-
ple of parliamentary sovereignty precluded British courts from declaring
acts of Parliament unconstitutional, Dicey looked to the independence of
the judiciary as a practical way to reconcile the restraint on government
Rohr / DICEY’S GHOST AND LAW 9

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