Public law and ordinary legal method: Revisiting Dicey’s approach to droit administratif

Abstract

In this article, the author considers the basic character of public law in the common law tradition by returning to AV Dicey’s famous assertion that public law is ‘ordinary’ law. Dicey made this claim in the course of articulating a theory of the rule of law within the common law tradition, and he juxtaposed that theory with the idea of public law within the civil law tradition, using French droit administratif as his central target of attack. Dicey’s ideas have attracted considerable criticism and are now generally out of favour. However, once the idea of public law as ordinary is reconsidered in light of its genesis within the long history of common law discourse concerning law and state power, and once Dicey’s own evolving attitudes about French droit administratif are considered, the idea can be seen to offer important insights into the ideal of legality today. The core insight, in the end, is the simple idea that if the rule of law means anything, the law that rules must embrace the qualities that law ordinarily embraces – that public law is, in the end, the product of ordinary legal method.