Chapter 3 of Tom Bingham’s book Rule of Law not only surveys the main sources of law in Britain–statutes and legislation, judge-made law and cases (the common law), as well as European and international law–it also identifies an enormous anomaly in the concept of rule of law. The problem, which is both a theoretical and practical one, is this: how can there be “rule of law”–as opposed to what I like to call the “rule of politics”, i.e. rule by the arbitrary whims of men–if we don’t even know how many laws there are in the first place?
At a minimum, as Judge Bingham himself notes, the law must be “accessible”, “intelligible”, and “clear”. In plain English, people and firms must know what the rules of the game are before they play the game, or in Bingham’s own words: “the rule of law requires that the [rules] laid down should be clear.” But, in reality, there are so many cases, laws, and regulations “on the books” that it is impossible, even for a trained lawyer, to know what the law really is. (This problem is especially acute in the United States, where legal experts don’t even know how many federal crimes there are! See image below or here, for example.) In fact, the problem is even worse than that. Even if we could use some method of “machine learning” or artificial intelligence to identify all the State, federal, and international laws that make up the U.S. legal environment, we would soon discover that many of these rules are either incomplete or vague or, worse yet, in contradiction with each other.
Is this a soluble problem, or is the concept of rule of law an incoherent one? For his part, in Chapter 4 of his book, Bingham will attempt to draw a distinction between narrow or confined “judgment” (in which courts apply the law in a consistent and fair manner) and unbridled, broad “discretion” (in which courts act like power-hungry political bodies). I will proceed to Chapter 4 next week. In the meantime, Happy Groundhog Day!
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