The Rule of Law

Citation

Bingham, T. (2010). The Rule of Law. Allen Lane.

Chapter Summary

Context and Argument

The book grew out of the Sir David Williams Lecture that Bingham, then Senior Law Lord, gave at Cambridge in 2006. It asks what a phrase that politicians and judges use constantly actually requires. After a short history, it advances eight conditions that, in his account, capture what the rule of law means in Western democracies today, and treats each in its own chapter. The last two chapters test the idea against terrorism and against parliamentary sovereignty. The text runs to about 170 pages, followed by notes and an index.

Chapter 1: The Importance of the Rule of Law

The opening chapter explains why the idea matters and what it is not: not a narrow technical doctrine but, as the publisher's description puts it, a foundation for a fair society, responsible government and economic growth. It prepares the ground for the eight conditions developed later.

Chapter 2: Some History

The chapter traces the lineage of the idea from Magna Carta through the American and French revolutions and their constitutional settlements. It gives the historical depth the later chapters draw on without becoming a full history.

Chapter 3: The Accessibility of the Law

The first condition is that the law must be accessible and, so far as possible, intelligible, clear and predictable. The chapter ties the principle to the growth of often badly drafted legislation and to the difficulty of holding people to rules they cannot readily find or understand.

Chapter 4: Law not Discretion

Questions of legal right and liability should be resolved by applying the law rather than by the exercise of official discretion. The chapter discusses the interplay of law, judgment and discretion, and the risk to predictability when decisions rest on unchecked choice.

Chapter 5: Equality before the Law

The law should apply equally to all. The chapter distinguishes formal from substantive equality.

Chapter 6: The Exercise of Power

Those who hold public power must use it lawfully and within its limits. The chapter looks at how law controls the use of power and holds officials to account.

Chapter 7: Human Rights

Bingham includes the protection of fundamental human rights among the conditions of the rule of law, so the concept is not only about formal legality. The chapter connects domestic law to international human rights standards.

Chapter 8: Dispute Resolution

Where parties cannot resolve a civil dispute themselves, the state must provide means of resolving it. The chapter considers the role of courts and other methods of settling disputes.

Chapter 9: A Fair Trial

Procedures provided by the state must be fair. The chapter covers the features of a fair hearing, including an impartial tribunal, and how they apply in criminal and civil settings.

Chapter 10: The Rule of Law in the International Legal Order

The last of the eight conditions asks the state to comply with its international obligations. The chapter extends the idea beyond national boundaries and considers the role of international law and institutions.

Chapter 11: Terrorism and the Rule of Law

The chapter takes up the strain that the threat of terrorism places on the principles of the earlier chapters, and the balance between security measures and legal protections.

Chapter 12: The Rule of Law and the Sovereignty of Parliament

The closing chapter examines how the rule of law fits with the doctrine that Parliament is sovereign, a relationship that Bharat Chugh's review describes as sometimes uneasy.

Key Concepts

Chapters 1–2: The Idea and Its History

• Rule of law: the principle that all persons and authorities are bound by, and entitled to the benefit of, publicly made law.
• Magna Carta and the revolutionary settlements: the historical landmarks the book uses to trace the idea.

Chapters 3–6: Law, Discretion, Equality and Power

• Accessible law: law that is clear, intelligible and predictable enough for people to order their affairs.
• Law not discretion: legal rights decided by rules rather than by official choice.
• Equality before the law: equal application of the law, with a distinction between formal and substantive equality.
• Lawful exercise of power: public officials act within the limits of their powers.

Chapters 7–10: Rights, Disputes, Trials and International Law

• Fundamental rights: protection of human rights as part of the rule of law.
• Access to dispute resolution: means of resolving disputes that parties cannot settle themselves.
• Fair trial: fair procedures and an impartial tribunal.
• International obligations: the state's duty to comply with international law.

Chapters 11–12: Pressure Points

• Security and legality: how counter-terrorism measures test the other principles.
• Parliamentary sovereignty: the doctrine whose relationship with the rule of law the last chapter examines.

Critical Analysis

Strengths

• Organised around a clear list. Eight conditions, one chapter each (Chapters 3 to 10), make the book easy to navigate and to use as a checklist for judging a legal system or a statute.
• Brief and written for non-specialists. The publisher describes it as a short book that asks what the idea consists of, and the reviewer Bharat Chugh remarks that it captures centuries of legal thought in some 170 pages without feeling cursory.
• Author's vantage point. Bingham wrote as the former senior judge of the United Kingdom, and the book draws on judgments and statutes as well as philosophers; it began as a public lecture.
• Not limited to formal legality. By including human rights and international law among the conditions, the book takes a position that students can compare with narrower definitions.

Limitations

• Compressed treatment. Each condition receives one chapter in a text of about 170 pages, so debates over definition and application are introduced rather than worked through.
• Single-jurisdiction viewpoint. The author writes from a United Kingdom judicial perspective, and Chapter 12 deals specifically with parliamentary sovereignty; readers studying other systems will need to translate the argument.
• Fixed in time. The book appeared in 2010 and does not address later developments in constitutional law and human rights adjudication.
• Narrative, not method. It is an essay by a practitioner rather than a work of jurisprudence that engages theory systematically, so it is a starting point for the philosophical literature, not a substitute.

Where It Fits in the Course

In this constitutional and administrative law list, Bingham is the short, principle-led read. Bradley and colleagues' Constitutional and Administrative Law and Le Sueur and colleagues' Public Law: Text, Cases, and Materials give the doctrine in textbook form, and Loughlin's The British Constitution: A Very Short Introduction is the compact survey of the constitution as a whole. Harlow and colleagues' Law and Administration and Hickman's Public Law after the Human Rights Act go deeper into administrative law and rights, and Loughlin's The Idea of Public Law is a theoretical study.

Bingham works best before or alongside these as the idea that makes their detail cohere: his chapters on discretion, the exercise of power, human rights and fair trial preview topics of judicial review and rights adjudication that the larger books develop with cases.

How to Use This Book

No legal background is needed; the book suits first-year students, general readers and anyone preparing for a public law course. It reads in a few sittings. Start with Chapters 1 and 2, then read Chapters 3 to 10 in order as a checklist, since each takes one principle. Chapters 11 and 12 are best left until the principles are familiar, because they test them.

As you read, write down each of the eight principles in a sentence and find an example of a rule or decision in your own jurisdiction that satisfies or breaches it. Compare Bingham's list with a narrower definition of legality and decide whether including human rights strengthens or complicates the idea. The notes at the end give references for further reading on any chapter, and a public law textbook is the natural companion for the cases behind each principle.