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The rule of law by Tom Bingham

The rule of law (2010)

by Tom Bingham

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One of the things I liked about Britain's being in the EU was having an extra layer of legal appeal that lay above the level of the nation-state. This is of course exactly what many anti-Europe campaigners hate most, but from my experience of Europe these myriad rulings about flammable duvets and transporting hazardous substances, all hashed out quietly by experts far away from the media pressure of any particular country, were generally sensible and politically unpartisan.

When (dare I say if) the UK does leave Europe, all of that legislation will disappear and some army of bureaucrats will have to recreate most of it again under British law. Fortunately we will, at least as far as I can tell, still be signed up to the European Convention on Human Rights, whose court in Strasbourg has already helped several Brits whose rights were not satisfactorily upheld by British rulings. The fact that EU member-states are required to sign this convention is one of the many reasons the Union has been such a force for good, as can be seen from the many former Eastern Bloc countries that bent over backwards to commit to ‘the rule of law and respect for human rights’ in order to join.

That phrase ‘the rule of law’, written into the EU's Copenhagen criteria, is a cliché that covers a lot of ground, and this small, lucid book is an attempt to set down what exactly it means to most people and why it matters. Lord Bingham was, until his death in 2010, the most senior as well as the most eminent judge in Britain, and before that was typically described as the greatest lawyer of his generation. Like only the true masters in any field, he distils the complexities of his subject into the most wonderfully simple, jargon-free, crystal-clear prose that could be understood by any smart twelve-year-old.

Particularly useful is the brief run-down of key historical landmarks in establishing the principles of western law, from Magna Carta in 1215, through Bills of Rights both British (1689) and American (1791), down to the Universal Declaration of Human Rights in 1948. Progress has been slow and incremental and sometimes rather two-steps-forward-one-step-back. It wasn't, for instance, until 1836 that defence counsel was allowed to address the jury directly on the defendant's behalf – in fact one judge in his memoirs recalls a conviction of theft that took place after a trial lasting all of two minutes fifty-three seconds, including the economical jury direction: ‘Gentlemen, I suppose you have no doubt? I have none.’

The historical context proves to be quite illuminating when it comes to contemporary debates. In the seventeenth century, for instance, Charles II's chief minister, the Earl of Clarendon, had a habit of transferring political prisoners to outlying parts of the United Kingdom where the writ of habeas corpus did not run, and where he could therefore hold people indefinitely. After his fall from power, it was felt that this practice should somehow be prevented, and the result was the Habeas Corpus Amendment Act 1679 – an Act which only just got through the House of Lords, by the way, supposedly because the person counting the ayes ‘succeeded, without his opposite number noticing, in counting a very fat Lord as 10’.

Bingham uses this story to discuss Guantánamo Bay, a facility set up to do exactly what the Earl of Clarendon did and for the same reasons, and which has seen the same tussle between the executive and the judiciary in the US that Britain went through in the 1600s. Bingham is, indeed, quite worried about roll-backs in people's legal rights, particularly following President Bush's declaration of a War on Terror (this book was written as Obama was being elected). He stresses, for instance, the vital importance that national laws should protect non-nationals (a matter of ‘equality before the law’); this is not just for their own sake, but also because curtailing the rights of non-nationals has so often been the prelude to denying the same rights to citizens.

This is very much a live issue. The USA PATRIOT Act, for example, denied foreigners basic rights of political association, due process and privacy; in the UK, meanwhile, new legislation after 9/11 meant that foreigners suspected of terrorism could be held indefinitely but British nationals accused of the same thing could not. Bingham clearly feels that detention without trial is one of the key issues that has been eroded in recent years. In Britain in 1997 the maximum time someone suspected of terrorism could be held without charge was four days. In 2000 it was seven days; in 2003 fourteen days; in 2006 twenty-eight days. Subsequent attempts to raise it further to forty-two or even ninety days have so far been defeated in Parliament.

American activities have been an order of magnitude larger and more concerning, with the Pentagon said to have conceded that some 80,000 people have been detained in various ‘black’ sites around the world, some on no charge at all. Various Supreme Court decision have spanked the administration over its behaviour – Rasul v Bush, Hamdan v Rumsfeld, Boumediene v Bush are key – as legislators attempted to stay one step ahead by creating new laws which would make outrages more technically permissible. The same could be said for torture, which was redefined in such a way as to allow, at least tacitly, what later happened at Abu Ghraib and elsewhere. Obama rolled some of this back, but of course Guantánamo is still a constant affront to many of the basic rights that, until recently, the United States had resolutely stood for, including the right to a fair trial, habeas corpus, the rejection of torture, and so on. This is how a great country can very easily surrender its previous claims to moral authority.

Bingham casts a lot of this debate, with great clarity, as an ancient and long-running showdown between Cicero's maxim Salus populi suprema est lex (‘the safety of the people is the supreme law’) and what he describes as the ‘preferable’ stance of Benjamin Franklin, that ‘he who would put security before liberty deserves neither’. He applies this to an interesting discussion of recent surveillance legislation, although events have moved on so quickly since this book was published, with Edward Snowden's revelations about the NSA, that you'll need to supplement these parts with some more contemporary reading.

Overall this is a very, very clear outline of what people are entitled to expect from legislative frameworks, and how we got there. It convinced me again of the importance of having supra-national bodies that can hold countries to account, at least in theory – but more than that it's just a pleasure to read, and should give you a good basis for working out your own thoughts about how courts work, how justice is pursued, and how countries behave on the international stage. ( )
2 vote Widsith | Jun 29, 2016 |
The late Lord Bingham coolly lays down the tenets of "rule of law" - a principle which everyone lays claim to but no-one can be bothered to define. Essential reading both for civil society junkies, anyone living in a civil society and anyone who would benefit from civil society. So everyone basically. ( )
2 vote jontseng | Jan 5, 2011 |
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. He shows that the British dealt with terrorism for many years in Northern Ireland without declaring a "War" or abandoning basic Human Rights with regard to torture, detention without trial, kidnapping and the right to privacy (phone tapping without judicial order) as is happening now.
I highly recommend this book (BTW Tom Bingham isn't a terrorist). ( )
1 vote Miro | Mar 28, 2010 |
Showing 3 of 3
An admirably clear explanation…Lord Bingham’s arguments become more debatable when he discusses the consequences when those principles are compromised – as in the normal run of things, some of them almost always are.
A remarkable essay…stooping from panoptic heights of generality to brief but meticulously detailed case studies.
added by Widsith | editThe Guardian, Stephen Sedley (Feb 20, 2010)
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"'The rule of law' is a phrase much used but little examined. In this brilliant book, Britain's former senior law lord, and one of the most acute legal minds of our time, examines what the idea actually means. He makes clear that is is not an arid legal doctrine but the foundation of a fair and just society, a guarantee of responsible government, and an important contributor to economic growth. Tom Bingham examines the historical origins of the rule of law, advances eight conditions which capture its essence as understood in Western democracies today - and explains why the rule offers the best means yet devised for securing peace and cooperation." -- back cover.… (more)

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