The Rule of Law

"This book is cited as mandatory reading for all prospective law students at every law school in the country, but I would go further and decree it compulsory for all politicians and indeed anybody with any interest in public life. The rule of law is what binds our democracy. Taking as his starting point the Lockean formulation that “Wherever law ends, tyranny begins”, Lord Bingham defines the rule of law as the principle that: all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. The book considers, in a clear and accessible way, the historical development of the rule of law, how its constituent parts operate in practice, and why they matter. The ambit and definition of the rule of law has been the subject of centuries of jurisprudential discussion and debate, but this contribution by the late Lord Chief Justice is justifiably considered one of the greatest."

"What’s interesting about The Rule of Law is that it’s written by someone who was until very recently the UK’s most senior judge, Lord Bingham. It’s comforting because it shows that the highest level of the judiciary is really interested in the liberty of the individual and freedom in all its various guises. It’s also got all sorts of fascinating little pieces in it. For example, he criticises the way in which the Americans put certain prisoners outside the reach of their courts in Guantanamo Bay and mentions that the executive in England was doing exactly the same thing, putting prisoners beyond the reach of the courts, more than 300 years ago. But then there was an act of parliament to stop it, the Habeas Corpus Amendment Act of 1689. The book is a general look at aspects of the law which effectively guarantee the freedom of the individual. The rule of law is one of the two great pillars of democracy, the other, obviously, being the vote. But it’s probably more important than the vote, because the vote is only once in a while, but the rule of law determines the rules which everyone, including the authorities, must follow on a daily basis and is the greatest guarantee of freedom. So, it’s a very important book That was the Earl of Clarendon, King Charles II’s chief minister, so he could lock up people he didn’t approve of, without them or their friends being able to use Habeas Corpus to force the government to explain why they were being held. Of course, this is an exact parallel with what has been done in the United States more than 300 years later Probably because he thinks the rule of law so important. Serious lawyers see continual attempts by the executive to encroach on the rule of law. If you’re a minister it’s much easier to do things without being constantly challenged in the courts."

"Tom Bingham’s The Rule of Law. A new book from probably the greatest jurist of our times, probably anywhere in the world. Recently retired, he was the senior law lord for the War on Terror and therefore heavily responsible for some very important decisions from the House of Lords Judicial Committee: against torture, against detention without trial, and so on. What’s wonderful about this book is that it’s not a law book; it’s for everybody. He’s attempting to explain, clearly, simply, powerfully, to a lay audience what the rule of law means and how important it is to everybody in modern society. Everyone should read this book, because it’s about our society. It’s about democracy , and how democracy isn’t just about having elections every few years, and it’s about our fundamental rights and freedoms that keep democracy alive, and how you do need firm independent judges to police the rules of the game. He’s not polemical, and he’s not preachy: he just reminds us of what we have and why we have it, and why it’s important. You do have to have rights and freedoms, you do have to have independent judges, and the law does have to have some moral content to it. It’s not long, it’s not complicated: it’s a really useful reminder of things that were taken for granted."

"This is a short book, published in 2010, shortly before the author’s death. It certainly isn’t a philosophical work on a par with Dworkin’s. And Tom Bingham would never have suggested that it was. It doesn’t seek to grapple with the profound philosophical problems about the moral basis of legal coercion. It’s essentially a basic introduction to the social and political functions of law in modern Britain, which is addressed to non-lawyers. My main reason for including it is to pay tribute to the memory of one of the great judges of our time, somebody who combined legal learning with a profound understanding of the workings of society and very great personal wisdom. He was a truly remarkable man. Again, The Rule of Law is a book with which, in one very critical respect, I profoundly disagree, because Tom Bingham believed that the rule of law required the recognition of a broad range of legal rights, more or less corresponding to the Human Rights Convention. I find that very difficult. Privacy, freedom of speech, freedom of assembly; obviously these things are desirable and a civilized society should want them, but a society can be governed by the rule of law irrespective of the contents of the law, with only one exception. The exception is that you clearly do have to have a right not to be arbitrarily imprisoned or assaulted without legal authority, or you’re not really a society at all. But, apart from that, I think that there are serious problems about saying the rule of law requires the law to have a certain content. That’s not entirely clear. Basically what he says is that a decent society ought to want these things and I would entirely agree with that. A decent society ought to want them. But you want them because they are in themselves desirable and not because they’re eternal truths implicit in the rule of law. Was there really no rule of law in England before the rights that Tom Bingham is talking about were created? In some instances that wasn’t until the Human Rights Act was passed in 1998. “If you’ve got a democracy, as Dworkin is assuming, it becomes extremely difficult to identify a source of legitimacy other than the choice, directly or indirectly made, of the people.” I would say that Victorian Britain was characterized by the rule of law, notwithstanding that many of the rights that Tom Bingham is talking about did not then exist. No. I think it is different. Ronald Dworkin is trying to justify the proposition that moral principles are prior to law and can constrain the laws which is legitimate for societies to make. Tom Bingham’s is a much more practical and down-to-earth book. It is basically describing how law works in modern Britain. He is undoubtedly right to say that human rights are an important part of it, but where I find it difficult to agree with him is when he says that this is inherent in the rule of law. It isn’t; you can have the rule of law even if the laws are repellent. There are societies that are undoubtedly characterized by the rule of law. They ban arbitrary interference with people’s liberty and or lives, but they do not have the full range of basic rights that we have. Tom Bingham’s book is a wise book that has many other things beyond those that we’ve just been discussing: for example his views about international law; or the sovereignty of Parliament. It is the fruit of a good deal of experience."