Introduction to the Study of the Law of the Constitution

Dicey defines parliamentary sovereignty as the right of Parliament to make or unmake any law whatsoever, coupled with the principle that no person or body — including the judiciary — has the legal authority to override or set aside an Act of Parliament . This means Parliament cannot bind its successors, and the courts must apply statutes regardless of their content. For Dicey, this absolute legislative authority was the legally defining feature of the British constitution, distinguishing it from federal systems where legislative power is divided and constrained by a written constitution .

Dicey's rule of law has three elements: no punishment except for a proven breach of law, equal subjection of all citizens to the ordinary courts, and the derivation of constitutional rights from judicial decisions in particular cases . He contrasted this with French droit administratif, which he saw as a system of special privileges for state officials, tried in separate administrative tribunals rather than ordinary courts. Dicey's hostile characterization retarded the development of English administrative law for decades, and scholars have since shown that his account of French law was historically flawed .

Dicey draws a strict positivist line: constitutional law consists of rules enforced by courts, while constitutional conventions are rules of political practice not enforced by courts but by political sanction alone . The monarch's legal power to withhold royal assent, for example, is constrained by convention, not law. This distinction became foundational for the orthodox framework of British constitutional thought, though critics argue it reflects a rigid positivist outlook that understates the normative force of conventions .

The central criticism is that Dicey's absolutist account of sovereignty is descriptively and normatively problematic. Critics note that he asserted parliamentary omnicompetence as a legal fact without ever demonstrating it . More fundamentally, his claim that sovereignty and the rule of law are complementary is logically unstable: if Parliament can make any law, then the rule of law is only as secure as Parliament's willingness to respect it . Dicey himself changed his position on sovereignty late in life, lamenting that the party system had undermined its practical reality .

Common law constitutionalists argue that the dominant characteristic of the British system is legality, not sovereignty — that certain fundamental rights and principles are embedded in the common law and cannot be overridden by ordinary legislation . They accept part of Dicey's account but revise its jurisprudential foundations. Recent scholarship, particularly Mark Walters's historically informed study, argues that the orthodox interpretation of Dicey as a simple legal positivist is itself misconceived, and that Dicey had a more nuanced appreciation of the relationship between sovereignty and legality than is commonly recognized .

Dicey's position shifted in response to political events, particularly the Irish Home Rule crisis. In 1885, he presented sovereignty as absolute and unchallengeable. But when Home Rule returned to the agenda in the 1890s and 1910s, he began advocating referendums and other mechanisms to constrain Parliament's power . By the final edition of 1915, he lamented that parliamentary sovereignty had fallen prey to the party system. This trajectory suggests that his abstract legal doctrine was more responsive to political context than his formal exposition acknowledged.