The Rule of Law

Tom Bingham, or Lord Bingham of Cornhill, was one of the most significant judges in British history, certainly one of the two most significant judges to have lived in the twentieth century. He was the first person to hold all three of the most senior posts in the judiciary; he was the driving force in the creation of the UK Supreme Court, as opposed to the previous arrangement of senior judges (the “Law Lords”) sitting as a special committee of the House of Lords; he led a tendency towards significantly greater reasoning in judicial decisions; and the case law he developed covered many of the most important cases of the 1990s and 2000s.

The rule of law is widely agreed to be deeply important. It appears in the Universal Declaration of Human Rights, the Treaty on the Functioning of the European Union, and countless national and sub-national constitutions and charters. Given its apparent centrality to liberal democracy, there is a remarkable lack of agreement on what it actually is. This is not for a lack of attempts: many of the most important legal theorists of the last century, including Friedrich von Hayek and Joseph Raz, have taken swings at it. Lord Bingham’s account of the rule of law deserves special attention not because Bingham was known as a great scholar, but because he has had more influence on the modern British legal system than anyone else in the last century. His account is therefore the closest we are likely to get to the “official” view of a major judicial system; but it holds almost Biblical status for the UK administrative class. Bingham died shortly after the book’s publication in 2010 but posthumously won the 2011 Orwell Prize for political writing; to this day, The Rule of Law can be found prominently displayed in the politics sections of bookshops.

What is the rule of law?

My personal view is that the rule of law is nothing more or less than the extent to which the citizens of a polity behave in accordance with the law, and with the expectation that other citizens will do the same. This is deeply unsatisfying to legal and political theorists who would like to be able to define violations of the rule of law in terms of necessary and sufficient conditions, and to affirm that such-and-such a decision is vital to upholding the rule of law. They would like to be able to say whether, in a case where an outgoing politician enriched himself at public expense and then successfully covered up the evidence, it is a greater violation of the rule of law to let this politician get away with his ill-gotten gains, or to prosecute a citizen in the absence of compelling evidence in favour of their guilt. Many of them would like to claim that the rule of law does not simply require that people obey whatever the law happens to be, but also constrains what laws can be considered legitimate.

I personally think it’s a mistake to hope to gain insight into particular cases by considering the abstract concept of the rule of law. The rule of law is one of a number of concepts – corruption, social trust, government legitimacy – which clearly mark out certain attitudes or behaviours as desirable or undesirable, and which are important for explaining the successes and failures of different societies, but which are extremely fuzzy around the edges. A society in which the rule of law is respected is one in which:

Judges and juries will adjudicate cases fairly, based on the evidence in front of them and based on widely-understood and accepted laws.
The government will respect the independence of the judiciary with regard to live cases, and will obey the limits on its activity set by the law. When passing new laws, it will ensure that it is actually possible for those subject to the law to obey it.
Police forces and prosecutors will attempt to enforce the law consistently, without fear or favour towards the more powerful citizens.
Victims of crime, and their friends and relatives, will trust the system to deliver them justice. They will report crime when it happens, and will not form mobs to go after those who have wronged them.
Witnesses to crimes will attend court at the appointed times, and will testify honestly and candidly.
Those with sincere objections to particular laws will oppose them through the democratic process; and if they find certain laws unconscionable, they will generally accept the consequences of disobeying these laws, rather than challenging the entire system of law.
Above all: ordinary people will obey the law, even when they could get away with breaking it.

Knowing whether people generally behave in these ways tells you a very great amount about a society, and I think justifies the central role accorded to the rule of law. Bingham comes at the rule of law from the perspective of a judge, does not go much beyond this perspective, and because of that he misses 80% of the action.

Core principles

Bingham sets out his personal definition of the outset:

The core of the existing principle is, I suggest, 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. (p7)

After a whistle-stop tour of what he takes to be the great moments in the development of the rule of law within England and then Britain – of which more later – he turns to setting out the implications of this principle. These begin very sensibly and indeed modestly:

1. The law must be accessible and so far as possible intelligible, clear and predictable.

A good principle, which I don’t think anyone disagrees with. Bingham spends a chapter expanding on this, with some incisive commentary on how the growth of the administrative state (and, arguably, certain traditions within the Anglo-Saxon legal tradition) are undermining this clarity. He then continues on with some further uncontroversial lemmas regarding the behaviour of judges and public authorities:

1. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
1. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
1. 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.

(skipping 5 for now)

1. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
1. Adjudicative procedures provided by the state should be fair.

There are legitimate debates to be had about the extent to which public authorities and their officers ought to enjoy discretion; nowadays it is acknowledged even by the outgoing head of the UK Supreme Court Lord Reed (p15-16) that in retrospect the senior judges of Lord Bingham’s era were often too eager to interpose their own judgements over those of elected officials and their departments. But at the same time there is very clearly something to Lord Bingham’s viewpoint. There are genuine dangers from the abuse of discretion, and from misuse of legitimately-held powers.

At this point, though, Bingham hits something of an obstacle. We have more-or-less said all that can be said for how the rule of law constrains executive and judicial behaviour based on his original definition, and it doesn’t add up to all that much. One option, the option taken by Joseph Raz, is to conclude that this is all there is and ultimately the rule of law isn’t all that important. I’ve already set out how I would continue the investigation: by looking at the behaviour of ordinary people. But Bingham takes a third path. Specifically, he identifies a variety of ills which may afflict societies, and declares that in each case the antidote is the rule of law. Thus:

1. The law must afford adequate protection of fundamental human rights.
1. The rule of law requires compliance by the state with its obligations in international law as in national law.

People are often the worst advocates for the issues they are most passionate about, and for Bingham this was human rights. He was a fervent defender of the European Convention on Human Rights (ECHR) from its introduction, and the Human Rights Act which gave the ECHR direct effect in British law. Whenever he met with disagreement on this topic in-person, he was known for rattling off a list of the rights set out by the ECHR and asking which of these particular rights his interlocutor believed we ought not to have – as though Britain was an autocracy without free elections prior to its accession to the ECHR. In this book he primarily adopts a different, but no less unconvincing, strategy: a series of appeals to (often dodgy) authorities. “Both the Universal Declaration on Human Rights and later international instruments link the protection of human rights with the rule of law” (p66), presumably in much the same sense that monarchs throughout history have claimed that obedience to them and their successors is required as a way of serving God. More bizarrely, Bingham includes a lengthy quote on the inadequacy of mere adoption of liberal laws from Valery Zorkin, who – at the time of writing this review – is now well into his third decade as President of the Constitutional Court of Russia. Whatever Zorkin meant in 2007, it seems safe to say that he is not now and was probably never a supporter of a strong notion of human rights.

After a long digression through the different rights, Bingham returns to his case for human rights. “Most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions. Which are the rights discussed above would you discard? Would you rather live in a country in which these rights were not protected by law?” (p83) I would like to live in a country where capitalism is guaranteed by law; many other people would like to live in a country where environmental protections are guaranteed by law. There is an obvious case to be made as to why protection of human rights might be crucial to human freedom in a way that capitalism or environmentalism might not be – but Bingham is too high on his own supply to recognise the need to even make that case.

In any case, such an argument would sit immensely at odds with Bingham’s second controversial application of the rule of law. When individual citizens are subject to the power of the state, there is very little they can do to resist – and therefore it is obviously an important protection against tyranny that the state stick to the rules it has said it will abide by. International law is not like this. If the UK promises France that the UK will behave in a certain way, and then breaks faith with this, this is probably bad for its international reputation – but the risk of tyranny and oppression is simply not there. So it's very natural to think that although it’s obviously good for governments to comply with obligations in international law, it is nowhere near as important as them complying with their own obligations in domestic law, especially those concerned with civil rights and constitutional procedures.

Bingham’s chapter on this topic does not seem aware of this challenge. He breezes through a few considerations as to why some notion of international law, and in particular some notion of internationally-agreed human rights, may be desirable, before turning to his real point: a rehashing of then-fashionable arguments about the 2003 invasion of Iraq.

The last two chapters are again dedicated to rehashing the legal hot potatoes of the 2000s: chapter 11 on the War on Terror, and chapter 12 concerning the debate between judges on whether they, or Parliament, were in fact the sovereign power of British politics. Bingham takes various aspects of the war on terror to challenge the rule of law – for example the extraordinary rendition and torture of suspects, and to a lesser extent mass surveillance – but again his arguments draw almost exclusively on legal texts and other people’s opinions, rather than any serious attempt to analyse the deeper considerations. In chapter 12 he verges mildly beyond the legal text in order to defend the doctrine of parliamentary sovereignty, which was at that time under attack from various of his colleagues (including future President of the UK Supreme Court Baroness Hale); I’m very sympathetic to his view in that chapter, but again cannot possibly commend the quality of analysis.

What’s missing?

Nowhere in any of this is any consideration of the numerous things which do not appear before judges, and do not give them opportunities to take politicians down a peg. Organised crime is a major threat to people’s life and liberty, and to the integrity of legal enforcement; Bingham has nothing to say about it. Distrust between the police and certain ethnic minorities is a problem in many countries, and frequently has the effect of exposing those minority communities to brute criminality without any protection from the law; Bingham has nothing to say about it. The most myopic chapter of all is the aforementioned history of English rule of law, which manages to exclude key achievements such as the 1829 creation of the Metropolitan Police or the Victorian temperance movement which established sobriety as a marker of working-class respectability, but finds time to cover a set of New Year’s Resolutions by Matthew Hale, Chief Justice of King’s Bench 1671-1676.

Conclusion

I honestly tried to like this book. Bingham was clearly an intelligent man, he knew his case law, and at heart he was after all just a good old liberal. He was not in any sense a judicial activist; in the 1996 case of R vs Ministry of Defence he upheld a ban on gay men serving in the military while opening stating in the judgement his disdain and distaste for the policy. His attitude sharply contrasts with that of Lord Denning, the other household-name judge of the 20th century, who wrote in his autobiography that “the proper rule of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule – or even to change it – so as to do justice in the instant case before him.” (The Family Story, p174)

Moreover Bingham’s life and work both attest to his great modesty and willingness to stay in his lane. Cornhill, as in “Lord Bingham of Cornhill”, was not an ancestral home but a Welsh village where he maintained a holiday cottage which for many years lacked running water.

Be this as it may, Lord Bingham managed to come up with an incredibly blinkered view of a topic which was supposed to be his expertise, and his defence of it is entirely unconvincing to anyone with half a brain who does not already agree with it. One might also observe that the legal system which he bequeathed to us is, within two decades of his death, manifestly failing to provide equal treatment before the law or to protect core civil liberties such as freedom of speech.

One explanation for this might be that the same solidity and lack of creativity which made Bingham an excellent judge made him an extremely poor theorist. Mechanically cranking out opinions based on the precise text of the law is an excellent way for a judge to behave if the goal is to produce predictable judgements and to uphold the rule of law in practice. But it tells you little if anything about the deeper facts and commitments which underlie why the law is what it is.

A deeper and darker explanation would be that The Rule of Law is a work produced by a society in the act of forgetting what liberalism is about. In On Liberty, John Stuart Mill argued that in order to properly develop our views, we need to engage in active debate with alternatives. “He who knows only his own side of the case, knows little of that.” The modern notion of liberalism was developed by theorists between the 1910s and 1950s who rejected fascism and communism and felt the need to clarify why they did so, and the ideological battle of the Cold War kept this spirit alive until the early 1990s. After that, liberalism ossified. Capitalism had won, it was the end of history, and there wasn’t really a need for any deeper theorising. The Rule of Law was written by a man who believed in liberalism but had forgotten why; the generation which followed him never learned why, and was consequently exceptionally keen to start rolling back hard-won freedoms as soon as they started proving inconvenient.