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Book Review: The Rule of Law

Book Review: The Rule of Law by Tom Bingham

Reviewed by Warren Pyke*

The late Lord Bingham chose as his subject for the Sir David Williams Lecture at the University of Cambridge in 2006 “The Rule of Law”, because while “the expression was constantly on people’s lips, I was not quite sure what it meant, and I was not sure that all those who used the expression knew what they meant either, or meant the same thing.” From this emerged a book, now made accessible in soft cover by Penguin Books.

Lord Bingham’s book is “not addressed to lawyers”, but to those “who may think the rule of law sounds like a good thing, and who think it may be rather important, but who are not quite sure what it is all about.” It has relevance to our impending constitutional “conversation”, and its value has already extended further: Justice Hammond referred to Lord Bingham’s “little monograph” in Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2011] 2 NZLR 442 (citing it in support of the principle that legal rights and liabilities should ordinarily be decided by application of law, not discretion).

The book contains a finely woven “impressionistic”, “episodic” and “selective” summary of “milestones on the way to the rule of law”. Lord Bingham non-exhaustively identifies the important principles of the rule of law as equality before the law, law not discretion, the exercise of power within its legal limits, accessibility to the law, access to justice, and adherence to precedent; and, he argues, the rule of law includes a requirement to observe human rights and the right to a fair trial. This is juxtaposed against a “thin” notion of the rule of law (this descriptive is quoted from an economist), that broadly means conformity with promulgated laws.

“Thin” and “thick” notions of the rule of law arguably emerge from the conceptual shadows cast by Edmund Burke (defender of the unwritten constitution and a Crowned parliament) and Thomas Paine (champion of the written constitution and individual rights). Being intellectually in the Paine camp, Lord Bingham recapitulates notions about the rule of law articulated by John Rawls in his A Theory of Justice (OUP, 1972 - see his chapter entitled “Equal Liberty”). However, as with Rawls, the treatment of the rule of law by Lord Bingham points to deeper challenges for legal theory: for example, how to treat meaningless or wicked laws, and whether such measures may properly be described as “law” at all (for discussion of this see HLA Hart in The Concept of Law, Clarendon Press,1961). Moreover, future evolution of Lord Bingham’s theory could arguably include emerging contemporary theories of pluralistic justice and “open impartiality” (for these ideas, see Amartya Sen, The Idea of Justice, Allen Lane, 2009).

A “thick” rule of law sits incoherently with the present constitutional arrangements in the United Kingdom and New Zealand: Lord Bingham appears to be sentimentally in the Burke camp on this issue, while intellectually recognising the incompatibility of a Crowned parliament with his “thick” notion of the rule of law. Lord Bingham recognises that an “elective dictatorship” of parliament (being a conjectural reference to words allegedly uttered by Lord Hailsham, when not in office, in 1976) poses a serious problem for his “thick” textured rule of law, that “will [not] go away if we ignore it,” and that it could give rise to “wholly undesirable conflict between Parliament and the judges”.

As a primer on the rule of law, this “little monograph” is excellent and readable (and good value for money). Lord Bingham’s book serves to remind us that, in the words of Lord Radcliffe: “…we need at this critical time to take thought, so that everyone may very surely understand what law is and why it has hitherto commanded, without intolerable strain, the general acceptance of people in this country. Unless we are clear about what it is not as well as about what it is, there is danger that we may lose the true value of this institution at a time when we need it most.” (“Some Reflections on Law and Lawyers”, 10 Cambridge LJ 361, 1948-1950).

The Rule of Law by Tom Bingham, Penguin Books, 2011, 978-0-141034-53-9, 213 pages, $32 (RRP). Available in paperback (special order required in New Zealand). First published by Allen Lane, 2010.

*Warren Pyke is a Hamilton barrister and convenor of the New Zealand Law Society’s Courthouse Committee.

This review was published in LawTalk 791, 16 March 2012, page 22.

This summary is intended to assist New Zealand lawyers by providing advice on new sources of legal information which may help them in their work. It does not constitute an endorsement by the New Zealand Law Society. For further information relating to content or purchase of the book, contact the publisher (www.penguin.co.nz.)

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Last updated on the 19th March 2012