The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context
| DOI | http://doi.org/10.1111/1468-2230.12363 |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
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THE
MODERN LAW REVIEW
Volume 81 September 2018 No. 5
The Rule of Law and the Rule of Empire: A.V. Dicey
in Imperial Context
Dylan Lino∗
The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting
debt to the work of Victorian legal theorist A. V. Dicey. But for all of Dicey’s influence, little
attention has been paid to the imperial entanglements of his thought, including on the rule of
law. This article seeks to br ing the imperial dimensions of Dicey’s thinking about the rule of
law into view. On Dicey’s account, the rule of law representeda distinctive English civilisational
achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was
forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at
odds with the rule of law.At a moment when the r ule of law has once more come to license all
sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations
and ambivalences are in many ways our own.
‘The precise issue we raise is this – that throughout our empire the British rule
shall be the rule of law . . . ’1
In the speeches of developmental experts and the policy documents of inter-
national institutions, in the reports of think tanks and global indices of good
governance, a four-word phrase has become more ubiquitous than ever. That
phrase is, of course, ‘the rule of law’. As Martin Krygier has put it, the rule of
law is ‘so totally on every aid donor’s agenda that it has become an unavoidable
clich´
e of international organizations of every kind’.2Spreading the rule of law
is now both the means and the end for an array of international interven-
tions of varying scale and intensity, especially in the Global South. Promoting
the rule of law has, for instance, become a core objective of the World Bank
in supporting development projects, the United Nations Security Council in
authorising sanctions and peacekeeping missions, the International Criminal
∗Lecturer, University of Western Australia Law School. Special thanks are due to Samuel Moyn for
his help in developing the ideas in this article. Thanks also to John Allison, Duncan Bell, Donal
Coffey, Ann Curthoys, Coel Kirkby, Priyasha Saksena and Oren Tamir.
1 F. Harrison, Martial Law: Six Letters to ‘The Daily News’ (London: The Jamaica Committee,
1867) 4.
2 M. Kr ygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’ (2016) 12 Annual
Review of Law and Social Science 199, 200.
C2018The Author. The Modern Law Review C2018The Moder n LawReview Limited. (2018) 81(5) MLR 739–764
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
A.V. Dicey in Imperial Context
Court in prosecuting international crimes and occupying forces in seeking
to restore order following military interventions.3With increasing efforts to
establish the rule of law in the Global South by powerful Western states, non-
governmental organisations and international institutions, the ideal may have
become ‘our modern mission civilisatrice’.4
That ubiquitous four-word phrase has, it would seem, travelled a great
distance from its more provincial inception in the constitutional theory of
late-Victorian England. The idea of ‘the rule of law’ was first elaborated by
the Oxford law professor Albert Venn Dicey (1835–1922), who developed a
deeply influential account in his seminal Introduction to the Study of the Law of the
Constitution (LOTC), first published in 1885.5To be sure, others before Dicey
had occasionally used the phrase, if only in passing, in a similar way.6More
fundamentally, in Br itain, ideas about the importance of law and lawfulness had
possessed a powerful hold in earlier times and on the minds of earlier thinkers:
the rule of law existed as an ideal avant la lettre de Dicey.7And contrary to what
Judith Shklar caustically described as ‘Dicey’s unfortunate outburst of Anglo-
Saxon parochialism’, political and intellectual traditions of legality had also
developed in places outside England.8But it was Diceywho fir st congealed ‘the
legality of English habits and feelings’ into an extended constitutional account
of ‘the rule of law’ and elevated it to ‘the distinguishing characteristic of English
3 A classic statement identifying this trend is T. Carothers, ‘The Rule of Law Revival’ (1998) 77
Foreign Affairs 95. See further, for example, D. M. Trubek and A. Santos (eds), TheNewLawand
Development: A Critical Appraisal (Cambridge: CUP, 2006); S. Humphreys, Theatre of the Rule of
Law: TransnationalLegal Intervention in Theory and Practice (Cambr idge: CUP, 2010); J. Farrall and
H. Charlesworth (eds), Strengthening the Rule of Law Through the UN Security Council (Abingdon:
Routledge, 2016); J. Stromseth, D. Wippman and R. Brooks, Can Might Make Rights? Building
the Rule of Law After Military Interventions (Cambridge: CUP, 2006); B. Rajagopal, ‘Invoking the
Rule of Law in Post-Conflict Rebuilding: A Critical Examination’ (2008) 49 Wm & Mary L
Rev 1347.
4 T. Ginsburg, ‘In Defense of Imperialism? The Rule of Law and the State-Building Project’ in J.
E. Fleming (ed), Getting to the Rule of Law: NOMOS L (New York, NY: New York University
Press, 2011) 224. See also R. Brooks, ‘The New Imperialism: Violence, Norms, and the “Rule
of Law”’ (2003) 101 Mich L Rev 2275.
5 A. V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (London: Macmillan
and Co, 1885).
6 For a use of the phrase ‘the rule of law’ before Dicey used it, see the epigraph to this article. See
also J. W. F. Allison, The English Historical Constitution: Continuity, Change and European Effects
(Cambridge: CUP, 2007) 157 n 2.
7 cf Kr ygier, n 2 above, 200–201. See, for example, H. W. Ar ndt, ‘The Origins of Dicey’sConcept
of the “Rule of Law”’ (1957) 31 ALJ 117; J. A. Sempill, ‘Ruler’s Sword, Citizen’s Shield: The
Rule of Law and the Constitution of Power’ (2016) 31 J L & Pol 333; N. McArthur, ‘Laws
Not Men: Hume’s Distinction Between Barbarous and Civilized Government’ (2005) 31 Hume
Studies 123; E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Allen
Lane, 1975); D. Hay, ‘Property, Authority and the Cr iminal Law’ in D. Hay et al (eds), Albion’s
Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975); B. Z.
Tamanaha,On the Rule of Law: History, Politics,Theory (Cambr idge: CUP, 2004) especially 25–27,
chs 3–4.
8 J. Shklar, ‘Political Theory and the Rule of Law’ in A. C. Hutchinson and P. Monahan (eds), The
Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) 5. See further, for example, Tamanaha,
ibid, chs 1–2; M. Loughlin, Foundations of Public Law (Oxford: OUP, 2010) ch 11. Note that
Shklar, Tamanaha and Loughlin still tell a Eurocentric stor y about the rule of law and its
importance. For a non-European approach to lawfulness, see C. F. Black, The Land is the Source
of the Law: A Dialogic Encounter with Indigenous Jurisprudence (London: Taylor & Francis, 2010).
740 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(5) MLR 739–764
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