Abstract

In this article, the author considers the basic character of public law in the common law tradition by returning to AV Dicey’s famous assertion that public law is ‘ordinary law. Dicey made this claim in the course ofarticulating a theory ofthe rule of law within the common law tradition, and he juxtaposed that theory with the idea of public law within the civil law tradition, using French droit administratif as his central target of attack. Dicey’s ideas have attracted considerable criticism and are now generally out of favour. However, once the idea of public law as ordinary is reconsidered in light ofits genesis within the long history ofcommon law discourse concerning law and state power, and once Dicey s own evolving attitudes about French droit administratif are considered, the idea can be seen to offer important insights into the ideal oflegality today. The core insight, in the end, is the simple idea that ifthe rule oflaw means anything, the law that rules must embrace the qualities that law ordinarily embraces – that public law is, in the end, the product ofordinary legal method.

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