Review of Chapter 1 of Bingham’s Rule of Law

Earlier this week, I introduced the students in my business law honors section to Tom Bingham’s classic work The Rule of Law, which is available here, by the way. To start the discussion, I asked my students to tell me what was the most surprising or unexpected aspect of the ideas presented in Chapter 1, which is titled “The importance of the rule of law.”

For me, it’s two things. One consists of an omission: this first chapter makes no reference whatsoever to Lady Justice, even though she appears on the cover of Bingham’s book. The other is the possibility that the meaning of rule of law is logically incoherent. How so? In a nutshell, because these words are not only vague, trite, and overused; the concept of rule of law has so many possible meanings or conceptions that it can mean different things to different people.

Is it possible to rescue this concept from these devastating intellectual blows? As I see it, this powerful critique is probably what motivated Judge Bingham to write his book! In Chapter 1, he begins his defense by retracing the linguistic origins of the phrase “rule of law” and then nailing down some of the more salient possible meanings this legal-political ideal can have. According to Bingham, it was an Oxford don, the great A. V. Dicey, who first coined this now-familiar expression as early as 1885–or as late as 1885, depending on your time horizon. As it happens, Professor Dicey himself identified no less than three different meanings or conceptions of “rule of law”:

First off, the rule of law requires a law of rules, or to quote Dicey: “no man is punishable … except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” In other words, the content of the ‘law’ must be clear and its meaning must be subject to judicial review; i.e. it is the judges who get to decide whether the ‘law’ is clear or not. (Note: I am enclosing the word ‘law’ in single quotation marks because, at some point, we are going to need a working definition of law.)

Secondly, the rule of law is also aspirational in nature: no one, no matter how powerful or rich, should be able to flout the law or “buy their way out” (so to speak) if they get into trouble, or in Dicey’s own words: “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” Put another way, the legal equivalents of papal indulgences are incompatible with rule of law.

Thirdly, and (I would argue) most importantly, the rule of law is procedural in nature, or to paraphrase Dicey: the general principles of ‘law’ are “the result of judicial decisions determining the rights of private persons in particular cases ….” On this view, philosopher-kings are incompatible with rule of law and must be banished once and for all; instead, general legal principles and legal rights and duties must be defined by judges in actual cases.

Do these three different meanings or conceptions of the “rule of law” share a common thread? (I ask this because, without a common thread, the critics might be right!) Since I plan to pose this very question in my next class, I will sketch out a possible common thread in a future post …

Image credit: George Danby

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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