Review of Chapter 12 of Rule of Law: who judges the judges?

The last chapter of Tom Bingham’s book Rule of Law (Chapter 12) explores a fascinating constitutional anomaly, at least in Britain where the Parliament is the ultimate sovereign. On the one hand, the rule of law at a minimum means that the government itself must obey its own laws. (Or in the eloquent words of Mr S. Jayakumar, Deputy Prime Minister of Singapore, who is quoted in the book’s epilogue, “there should be clear limits to the power of the state.”) But at the same time, the doctrine of parliamentary sovereignty, the cornerstone of Britain’s unwritten constitution, means that it is Parliament, not the courts, that has the ultimate authority to decide what counts as “law”, or in the words of Judge Bingham himself:

“The courts [in Britain] have no inherent powers to invalidate, strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament, and, indeed, an extremely limited power to enquire whether a statute has been duly enacted.”

As a result, this state of affairs produces a peculiar paradox: how can there be “rule of law” in Britain if the Parliament can enact any legislation it chooses and no court of law has any power to review, let alone annul or modify, such enactment?

For his part, Judge Bingham has saved the best for last, for his long and rambling response to this paradox is ultimately on point. In short, for Bingham parliamentary sovereignty is the lesser of two evils. Why? Because the alternative to parliamentary sovereignty is the god-awful U.S. system of judicial supremacy, where a small and unaccountable committee of lawyers deliberating in secret (i.e. five of nine judges of the Supreme “Court” of the United States) get to have the last word. To paraphrase the immortal words of Juvenal (pictured below), the problem with the U.S. system of judicial supremacy can be summed in four words: who judges the judges?

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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