Dicey

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Learn More in these related Britannica articles: Positivism , in Western philosophy, generally, any system that confines itself to the data of experience and excludes a priori or metaphysical speculations. More narrowly, the term designates the thought of the French philosopher Auguste Comte — As a philosophical ideology and movement, positivism first assumed its distinctive features in the work….

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New Brunswick , [] 1 S. The paragraphs on theory in Dunsmuir contrast sharply with another judicial excursus on administrative law theory that is perhaps somewhat forgotten today. Canada Import Tribunal , [] 2 S. At that time, Wilson J. New Brunswick Liquor Corp. The story of administrative law in the common law tradition had been, she said, a tale of escape from Dicey and his dreaded followers especially the dark lord, Lord Hewart who employed the conceptual formalism of the rule of law and the associated idea of jurisdiction against administrative discretion to advance conservative ideas contrary to the modern welfare state.

And then, just as quickly as it entered judicial discourse, it was gone. But was there something more at stake than just a name? Comparing the theoretical excursuses from National Corn Growers and Dunsmuir helps us to see the outlines of the philosophical debates that lie just under the surface of judicial reasons in administrative law. Functionalists wanted to clear away the old common law clutter that obstructed social policy experts and technocrats in government who were building a new and better society. As Ivor Jennings put it: Ivor Jennings, The Law and the Constitution , There is arguably some evidence in Dunsmuir of a return to the sort of positivist or formalist understanding of law often associated with Dicey.

As a rule about the formal statutory authorization for power the rule of law is thus simply and disappointingly rule by law. The worry of Wilson and Arthurs and the old functionalists too is that a formalist rule of law is an empty and aimless rule waiting to be filled with judicial bias.

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If rule of law means legal authorization by legislation, there could never be tension between the two. Canada Minister of Citizenship and Immigration , [] 2 S.

Dicey! Fri 28.09

The answer to these questions lies, I think, in appreciating the false dichotomy between formalism and functionalism. Dunsmuir and the many cases preceding and following it are best understood as part of an on-going interpretive project that seeks to fold together in a coherent way substantive values of legality within the complex arrangements for governance that have been created to address the realties of the modern and post-modern state. Formalism and functionalism both suffer from the mistaken view that law is merely a command issued by a lawmaker to others, a linear communication from state to subject; the two schools of thought differ only in terms of how judges should respond to the domains of administrative discretion created by these commands.

My own view, however, is that law is better understood as a more circular discourse in which rules emanating from legislatures and administrators are interpreted in ways that can be justified in light of a unified and coherent vision of normative order that honours deeper values of political morality, including, of course, the value of legality and its unrelenting insistence that respecting equal human dignity means rejecting arbitrary power. In the end, I think it is fair to say that the Dunsmuir theoretical excursus is Diceyan—but not in the formalist Diceyan image constructed by the functionalists.

Dicey, Introduction to the Study of the Law of the Constitution , 8 th ed. Because Dicey himself did not develop a theory of administrative discretion beyond these basic points, he cannot give us concrete answers on how administrative law, properly interpreted, should look today.

However, if we step back from the details of Dunsmuir and think about the general approach taken by Bastarache and LeBel JJ.



One could say that this is just ordinary legal reasoning.