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The Rule of Law, By Tom Bingham

A consummately entertaining summation of our legal system by a former Lord Chief Justice

Reviewed,Robert Gaisford
Sunday 31 January 2010 01:00 GMT

What do we mean by the rule of law? For some people, says Tom Bingham, it amounts to little more than "Hooray for our side". For Bingham himself, however, it is "the nearest we are likely to approach to a universal secular religion". Bingham has held office as Master of the Rolls, Lord Chief Justice and Senior Law Lord: he is our leading jurist. In this short but profoundly important book, he examines the provenance, development and current state of the rule of law.

This might sound like dry and dusty stuff but it is not. It is accessible and often diverting: as Bingham says, it is not addressed to lawyers. Having offered his own definition of the concept of the rule of law, he outlines its history with characteristic clarity and lightness of touch, from Magna Carta, past such milestones as habeas corpus, the Bill of Rights and the abolition of slavery, up to our Human Rights Act. It is an entertaining and fascinating journey.

He proposes eight essential principles, each of which he illustrates with a wide variety of examples. The first is that the law must be available to everyone and, so far as possible, intelligible and clear. But he admits that sometimes the search for clarity can go too far, and quotes from some regulations under the Banking Act of 1979: "Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations." As he says: no room for doubt there.

His other principles include the equality of all before the law – "Be you never so high, the law is above you," as Dr Thomas Fuller wrote in 1733 – along with the fair exercise of power by the executive, the right to a fair trial, and the application of law, rather than discretion, when deciding questions of legal right and liability. Importantly, Bingham also includes the protection of fundamental human rights.

Though some people might not see human rights as a necessary ingredient of the rule of law, Bingham argues that such a view would be based on an impoverished or "thin" definition, as compared with his own preference – what he calls a "thick" definition – and his arguments are cogent and convincing. Nor does he confine himself narrowly to national law, but insists that the state must comply with its obligations in international law as well. It is in this chapter that he examines the reasons given for the 2003 invasion of Iraq, and concludes that it violated the rule of law.

He also looks at another serious problem of our time: how far the threat of terrorism can justify encroachment on our civil liberties, and discusses "extraordinary rendition" (or kidnapping), torture (or what has been dubbed "enhanced interrogation techniques"), detention without charge or trial, and, of course, surveillance. In addition to the widespread interception of private communications by hundreds of public bodies, "the UK has been said to have more than four million CCTV cameras, and the largest DNA database in the world". The public's apathy in the face of this is plainly a mystery to him; he is not alone.

Finally, Bingham discusses the potential for conflict between the sovereignty of parliament and the rule of law, and concludes that there are some rules which no government should ever be allowed to violate without legal restraint.

This gem of a book identifies and explains the legal precepts that are necessary for a free, just and peaceful society. It is inspiring and timely. Everyone should read it.

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