Customer Reviews

The Rule of Law

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Tom Bingham, Lord Chief Justice 1996-2008, presents eight parts of the rule of law: The law must be accessible and so far as possible intelligible, clear and predictable. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Laws should apply equally to all, unless objective differences justify differentiation. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. The law must afford adequate protection of fundamental human rights. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Adjudicative procedures provided by the state should be fair. The rule of law requires compliance by the state with its obligations in international law as in national law.

The European Convention on Human Rights (1950) was effected here by the Human Rights Act (1998). It says, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." (The US Bill of Rights bans the infliction of `cruel and unusual punishments'.) It bans slavery and forced labour - -even for benefits. It asserts the rights to life, liberty and security, to a fair trial, and to respect for privacy and family life. It upholds freedom of thought, conscience, religion, expression, assembly and association.

Article 1 of its Protocols protects: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ... The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." Article 2 asserts the right to education.

Bingham argues that "The rule of law requires that the law afford adequate protection of fundamental human rights." A Constitution is not enough, nor is a merely rhetorical commitment to the rule of law.

He looks at terrorism's impact on the rule of law and urges that our responses be lawful, not a mimicry of the terrorists' actions. He warns, "it cannot be said that the UK has shown that implacable opposition to torture and its fruits which might have been expected of the state whose courts led the world in rejecting them both. In a sequel to the Belmarsh case ... the Government argued that evidence obtained by torture abroad without the complicity of the British authorities could be considered by the Special Immigration Appeals Commission, a contention which the House of Lords unanimously and strongly rejected."

Finally, he states, "The invasion of Iraq was `a serious violation of international law and of the rule of law'.

In this timely and useful book Tom Bingham (Britain's former senior Law Lord) explains in Part 1 the sources of present British law from the Magna Carta onwards, and in Part 2 discusses the key parts of the present day British system also referencing U.S. law.

It's a short and handy book that I keep close by, to check on for example, the legal meaning of, "Equality Before the Law" or "A Fair Trial".

Part 3 is a first rate exposition of the Rule of Law and the Sovereignty of Parliament (parliament takes priority) and Terrorism and the Rule of Law (a "War on Terror" isn't a real war in the WW2 sense). It becomes more than clear that this particular "War" has seriously curtailed basic Human Rights with regard to torture, detention without trial, kidnapping and the right to privacy (phone tapping without judicial order).

I highly recommend this book (BTW Tom Bingham isn't a terrorist).

The Rule of Law says 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", according to Tom Bingham in this book. The book traces the history of the concepts contained in the Rule of Law from the Magna Carta through Habeas Corpus (the right to challenge unlawful detention), the abolition of torture, the Petition of Right, the US Constitution, the French Declaration of the Rights of Man, and the law of war, to the Universal Declaration of Human Rights.

The author then goes on to address specifically a number of principles included within the broad concept of the Rule of Law:

* The law must be accessible, clear and predictable

* Legal rights should be resolved by laws and not by discretion

* Laws should apply equally to all unless objective differences justify differentiation

* Public officers must exercise their powers fairly

* Fundamental human rights must be protected

* Effective civil dispute resolution procedures must be provided

* Trials should be fair

* The state must comply with its obligations under international law

Totalitarian regimes down through the ages have been characterised by flagrant disregard for the Rule of Law, for example by having arbitrary laws applied inconsistently at the discretion of the state, granting impunity to a corrupt ruling class, tolerating bribery, imprisoning and torturing people without trial, dispossessing people of property and rights at whim, and murdering prisoners of war who have surrendered. There is not much controversy over whether such practices should be prohibited; the controversy comes when governments enact exceptions to the Rule of Law, arguing special circumstances.

Controversial subjects which the author discusses include terrorism and the Rule of Law, the practice of "extraordinary rendition", discriminatory treatment of non-nationals, detention without trial, hearings in which the accused is not informed of the case against him, torture, surveillance, and the legality of the war in Iraq.

It seems to me that the duty of a state to comply with its obligations under international law is perhaps the most fragile of duties, because the source of those obligations is simply agreements between countries. If one country decides it no longer "agrees", there is very little that can be done to enforce the agreement. Thus the question of when one country has the right to interfere by force in the affairs of another will always be a very difficult one.

This book provides a lucid explication of the concept of rule of law, including, for good measure, a brutal demolition of the legal case for the 2003 Iraq war. The only failing I found was that Lord Bingham fails to consider how the evolution of trans-national corporations challenges the comprehensivenss of the concept he outlines. Given the proliferation of these entities and the way in which the political economy of the world is globalising this is a critical omission - but I suppose one can't have everything. Aside from this it is an exempliary piece of writing.

Tom Bingham's exposition of the concept of the Rule of Law is wide ranging, exploring the historical roots and taking it to the dilemmas caused by the modern age. It is erudite, brilliantly researched and written in the most readable language. Truly the work of a legal genius with a profound humanity.

I kept wanting to call the author "Honest Tom Bingham". He was a Supreme Court Judge in Britain, unafraid of Europe, he comes across as a real internationalist, a universal values individual. His writing style is clear and unadorned, honest Tom.

He lets the Magna Carta, the Declaration of Independence and the Bill of Rights bellow for themselves. He follows the development of Habaes Corpus, and lets us contrast this with Guantanimo. As you would expect with a judge, everything, eventually becomes either right or wrong. The ambiguity of the West's response to Terrorism is anathema to him. Let the Sky's fall.

So, in my praise of this book ,also comes my reservation. Individuals allow their behaviour in societies be guided by laws, to which they have some input and to which they give consent. If done impartially, judgements can be accepted. Laws made by dictators are invalid from their inception, (so, no, you cant just be obeying orders).

So the specific unease. What do we do about assassinations ordered by democratically elected politicians, done in the name of protecting society from terrorists? How far do we go?

I write this in the week when Osama Bin Laden was killed. I am not sure if the killing was legal, per se, though I can see how it was justified. I think that if he had been captured alive, there would have been an almighty legal tangle about where to jail him, where to try him etc. And yet he was a homicidal maniac, with quite a following. Also I am aware of the Tunisian revolution, sparked by a youth committing suicide in despair at this treatment by a corrupt government. The rule of the people overthrew the government, not the rule of law.

So it seems there is a basic tension about the rule of law, and its relationship to communal violence and governance which still leaves us uneasy.

Nonetheless Honest Tom Bingham's book is a must-read to understand where the tensions lie.

Judge Bingham has done a brilliant job of collecting and explaining the sources of The Rule of Law in Britain and America, and how that has led both countries to expect or champion governments of laws, not of men, both at home and abroad.

Judge Dallas Holmes