RETHINKING THE DICEYAN DIALECTIC

Abstract

This essay identifies a blind spot in administrative law theory concerning the legitimate legal authority of administrative institutions. More specifically, the essay examines the root cause of this blind spot, arguing that it is attributable to A.V. Dicey's constitutional theory, which asserts that the English constitution rests upon the legal principles of parliamentary sovereignty and the rule of law. Dicey argued that the existence of administrative law was precluded by the nature of the English constitution, because it assigned exclusive legal authority to either Parliament or the common law courts. The essay criticizes Dicey's argument on two separate grounds. First, it argues that Dicey's theory was empirically mistaken, because it does not adequately account for common constitutional practices whereby legal authority is delegated to administrative institutions. Second, it argues that one can gain a better understanding of Dicey's theory if it is recast as a contestable political statement regarding the legitimacy of the administrative state. By engaging with Dicey's controversial ideological assumptions, we can set the stage for a more elaborate and robust constitutional theory that can better explain and justify the legitimacy of administrative authority.