Stability and flexibility: a Dicey business

Abstract

A significant part of the life of the law has been attempts to balance the competing values of stability and flexibility. Emergencies present the challenge of enabling government to confront the crisis by, if necessary, using special emergency powers and greater flexibility of operation while, at the same time, ensuring that such powers and flexibility do not get out of control and enable government to impose long-term limitations on individual rights and liberties or modify the nature of the relevant constitutional regime. The paper focuses on A.V. Dicey's treatment of the challenge of balancing stability and flexibility in the context of grave crises. Prof. David Dyzenhaus of the University of Toronto Faculty of Law has recently suggested that Dicey distinguishes between two legal responses to an emergency situation. In the first, the response is the after-the-fact recognition that officials made an excusable decision to act outside of the law because it was necessary that they act and the law, did not provide them with the resources they needed. In the second, Parliament in advance gives to officials resources to deal with emergencies in accordance with the rule of law. Dyzenhaus argues that Dicey prefers the second option and himself takes a similar position. The paper argues that while Dicey does present two ways of responding to emergency situations, he sees them as complementary, allowing the use of one when the other may be unavailable or undesirable. The paper goes on to tie Dicey's analysis with John Locke's theory of the prerogative, suggesting that Dicey answers a significant problem with Locke's theory. The article goes on to focus on a closer examination of the ex post ratification component of what I called elsewhere the Extra-Legal Measures model for dealing with emergency powers. Again, the paper does so by using Dicey's discussion of the Act of Indemnity, which is a particular case of ex post ratification. The paper seeks to demonstrate that the critique of the Extra-Legal Measures model as placing public officials in a legal black hole . . . a zone uncontrolled by law misses some of the essential components of the model. Particularly, it misses the fact that, as Dicey puts it, the relief to be obtained [from Acts of Indemnity] is prospective and uncertain. Until the extralegal action is ratified ex post, and potentially even after it is so ratified, the acting public official does not know what the personal consequences of violating the rule are going to be. The more uncertain it is that ratification will be forthcoming, the more uncertain its potential scope, and the greater the personal risk involved in wrongly interpreting either of those is, the greater the incentive for individual actors to conform their action to the existing legal rules and norms and not risk acting outside them.