The Rule of Law by Tom Bingham

Tom Bingham and the Rule of Law

• Tom Bingham: An eminent judge in England, known for his service as Master of the Rolls, Lord Chief Justice, and Senior Law Lord.
• His dedication to the rule of law is captured in his influential book, The Rule of Law, which won the Orwell Prize for best political book in 2011.

Overview of the Book

• The book begins with a Preface discussing the author's initial engagement with the concept of the rule of law during a lecture at Cambridge.
• Part I outlines the importance and historical context of the rule of law.
• Part II discusses various aspects including accessibility of law, human rights, and fair trials.
• Part III examines the rule of law in the context of terrorism and parliamentary sovereignty.

Key Concepts:

1. The Importance of the Rule of Law

• Coined by A.V. Dicey in An Introduction to the Study of the Law of the Constitution (1885).
• Key interpretations by Dicey:
  • No punishment without law: Individuals cannot be punished without a law that defines the offense (Article 39 of Magna Carta).
  • Equality before law: Everyone is subject to the same laws.
  • Principles of the constitution result from judicial decisions.

2. Historical Milestones in the Rule of Law

• Magna Carta (1215): Established key rights and limited the power of the King. Chapter 39 states: "No free man shall be imprisoned … except by the lawful judgment of his equals or by the law of the land."
• Habeas Corpus: Protects individuals against unlawful detention. Developed as a remedy against arbitrary state action.
• Petition of Right (1628): Asserted rights against arbitrary royal power; crucial milestone in establishing the rights of individuals under the law.

3. The Accessibility of the Law

• The law must be accessible, clear, and intelligible:
  • Citizens need to understand what they can or cannot do to avoid penalties.
  • Accessibility supports commercial activity and personal rights claims.
  • Courts emphasize legal certainty as essential for a functioning rule of law.

4. Law, Not Discretion

• Bingham emphasizes that legal rights and liabilities should be resolved through the law, not arbitrary discretion of officials.
• Judicial Review plays a crucial role in ensuring that powers are exercised legally and fairly.

5. Equality Before the Law

• Stresses the importance of equal application of laws. Historical context reveals gradual improvements towards equality:
  • The significance of cases like Somerset v Stewart (1772) which led to the abolition of slavery in Britain.
• Upholding the principle that ‘no one is above the law,’ regardless of status.

6. The Exercise of Power

• Public officials must exercise powers in good faith, fairly, and according to their legal authority without exceeding limits.
• Judicial review serves as a mechanism to ensure governmental compliance with these standards.

7. Human Rights

• The law should protect fundamental human rights under the rule of law:
  • Including the right to life, prohibition of torture, and the right to a fair trial.
  • Human rights are intrinsic to the rule of law and are recognized in numerous international treaties

8. Dispute Resolution

• The state must provide fair and accessible means for resolving disputes.
  • Emphasizes the role of courts to adjudicate civil rights and claims.
  • Recognizes the barriers posed by cost and delay in accessing justice.

9. A Fair Trial

• Central tenet of the rule of law; applies to both criminal and civil cases:
  • Must be independent, public, and equitable for all parties.
  • Foundations lie in legal traditions ensuring rights of the accused.

10. The Rule of Law in the International Legal Order

• International law must be upheld similarly to domestic law, emphasizing accountability at both levels.
• The UN Charter stresses the importance of law in international relations, seeking global peace and protection of rights.

11. Terrorism and the Rule of Law

• Discussion on the balance between civil liberties and national security in the context of terrorism:
  • Governments must avoid undermining the rule of law in reaction to terrorism.
  • Historical examples highlight the risks of unjust practices in times of crisis.

12. The Rule of Law and the Sovereignty of Parliament

• Exploration of how parliamentary sovereignty may conflict with the rule of law.
• Discusses the principle that Parliament can enact laws infringing human rights, stressing the need for some form of legal restraint.

Conclusion

• The rule of law remains a vital pillar of democracy and societal integrity, striving for clarity, accessibility, and fairness in legal processes and government actions.
• Bingham's clarion call urges society to protect these principles, ensuring that legal frameworks support rather than undermine human dignity and equality.