University of Toronto Law Journal

I Introduction

If there was one thing that John Willis detested above all others, it was the lamentable tendency of lawyers and judges to engage in pompous self-aggrandizement. He viewed much of the debate about judicial review in those terms. Why were the views of judges any better than the views of the officials and tribunals and legislatures that they so readily overturned? And any explanation couched in such terminology as 'the rule of law' would only have invited his ridicule. He would see that explanation as the substitution of meaningless rhetoric for the empirical facts that were the only basis upon which our institutions should be judged. As admirers of Willis, we bear a considerable burden of persuasion when we write an article claiming that the rule of law is not only a meaningful but also an important constitutional concept.

II Dicey's rule of law

The venerable A.V. Dicey,¹ writing in 1885, regarded the rule of law as a central feature of the constitution of the United Kingdom. His definition of the rule of law has to be the starting point of any article on the topic, even one that focuses on the Supreme Court of Canada. Dicey offered three meanings of the rule of law. First, the rule of law meant the supremacy of 'regular law' over 'arbitrary power.' This would be unobjectionable were it not for Dicey's assumption that the discretionary powers of tribunals and officials were examples of 'arbitrary power,' while the powers of judges simply reflected the 'regular law.' Dicey's second meaning of the rule of law was 'equality before the law,' by which he meant that officials were bound by the same laws as ordinary subjects. This second point was highly controversial at the time, as Dicey used it to [End Page 715] condemn those European countries with systems of 'public law' and grossly underestimated the degree to which a special body of public law had developed in the United Kingdom. The third meaning of the rule of law was that the constitution is a product of the common law, not of any constitutional instrument. This third meaning simply expressed a preference for the common law over the civil codes and constitutional instruments that then existed in Europe, despite the fact that the common law, unlike an entrenched constitutional instrument, could be repealed or amended by Parliament at any time.

Dicey's critics, and especially Sir Ivor Jennings in The Law and the Constitution (1959)² and Harry Arthurs in 'Without the Law': Administrative Justice and Legal Pluralism in Nineteenth-Century England (1985),³ have been highly critical of his definition of the rule of law, anchored as it is in an Anglocentric, court-centred view of the legal system.⁴ Dicey exaggerated the virtues of the courts, exaggerated the risks of administrative decision making, misunderstood the state of administrative law even at the time when he wrote, and refused to see merit in the civilian systems of Europe. Because of the power of the criticisms of Dicey, the rule of law is often dismissed as meaningless rhetoric.

Despite the infirmities of Dicey's account, the rule of law is a notion that is taken seriously by many scholars as describing a society with an effective legal system that respects individual liberty. The rule of law presupposes that laws will usually be obeyed, that breaches of the law will usually meet with enforcement, that government will be limited in its powers, and that courts and the legal profession will be independent of government and of powerful private interests. In countries with these characteristics, individual liberty is protected and economic development can take place. Property rights, contractual rights, banking, insurance, and the rest of the complex infrastructure of commerce can develop only under the protection of law, which must include independent courts and an independent...