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September 1, 2011
The traditional conception of the rule of law is given by A.V. Dicey, who created a classical formulation of the rule of law in his Introduction to the study of the law of the Constitution (1885). There he stated that the rule of law has three meanings:
It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.
The third element of Dicey's formulation was that the rule of law expressed the fact that a constitution was the result of the "ordinary law of the land":
The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land.
Dicey's traditional conception of the rule of law doctrine does not address a range of freedoms or human rights; and "sovereignty of Parliament and the supremacy of the rule of (ordinary) law. However, though Australian parliaments may be supreme, they are not sovereign. The rule of law affirms parliament's supremacy while at the same time denying it sovereignty over the Constitution.
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