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Politicians invoke it. Constitutions promise it. Bangladesh’s own Preamble commits the state to it. But ask a room of lawyers what the rule of law actually means and the answers will vary widely. Tom Bingham’s short book, published in 2010 shortly before his death, set out to answer that question plainly. It succeeded so well that it is now cited in judgments, assigned in universities and read by people who have never opened a law report.

The Author

Bingham was uniquely placed to write it. He is the only person to have held all three of the highest judicial offices in England and Wales: Master of the Rolls, Lord Chief Justice and Senior Law Lord. He presided over the House of Lords in the Belmarsh case of 2004, which held that the indefinite detention of foreign terror suspects without trial was incompatible with the European Convention on Human Rights. He wrote clearly, thought independently, and was unafraid of government. The book reads as the distilled reflection of a career spent applying the idea it describes.

The Structure

The book has three parts. The first traces the history of the idea, from Magna Carta in 1215 through habeas corpus, the abolition of torture, the American and French declarations, and the Universal Declaration of Human Rights in 1948. Bingham is careful not to present this as a story of steady progress; he shows how each advance was contested and how easily it can be lost.

The second and central part sets out eight principles. The law must be accessible, clear and predictable. Questions of legal right should be resolved by law, not discretion. The law should apply equally to all. Ministers and officials must exercise their powers in good faith, fairly, for the purpose for which they were given, without exceeding their limits and not unreasonably. The law must protect fundamental human rights. There must be a means of resolving disputes without prohibitive cost or delay. Adjudicative procedures must be fair. And the state must comply with its obligations in international law.

The third part turns to the strains on the rule of law in Bingham’s own time: the response to terrorism, the invasion of Iraq, and the tension between the rule of law and parliamentary sovereignty. His chapter on Iraq, arguing that the war lacked a sound legal basis, attracted headlines. His discussion of sovereignty is subtler: he raises, without quite answering, whether a Parliament that legislated to abolish judicial review or the courts would still be acting lawfully.

The Argument

The book’s most important choice is its fifth principle. Bingham rejects a thin conception of the rule of law, under which any regime with clear laws applied by courts qualifies, however oppressive the laws. He insists that a state which denies fundamental rights does not observe the rule of law, whatever its procedures. Critics have argued that this makes the concept do too much work, turning it into a synonym for good government. Bingham’s answer is that a definition which fits apartheid South Africa or Nazi Germany is not worth having.

The eighth principle, compliance with international law, is equally contested and equally characteristic. Bingham did not believe that the rule of law stops at the border.

Why Bangladeshi Readers Should Read It

Almost every chapter has a Bangladeshi echo. The principle of accessible law raises the question of statutes available only in one language, or of guidelines that exist only in judgments. The principle of decisions by law rather than discretion speaks directly to arbitrary arrest under section 54 and the guidelines in BLAST v Bangladesh. The chapter on dispute resolution without prohibitive delay describes, in effect, the 4.6 million pending cases in our courts. And Bingham’s account of how the rule of law survived, or did not, in Britain’s darkest moments is worth reading alongside the Fifth Amendment case and the history of martial law here.

Verdict

The book is short, lucid and free of jargon. It can be read in an afternoon and returned to for years. Students of public law and jurisprudence will find in it a framework for almost any essay on the subject. Practitioners will find a reminder of why they do what they do. Its only weakness is that Bingham, a judge to the end, sometimes assumes that good faith and good sense will prevail. Readers in less fortunate systems may wish he had said more about what to do when they do not. That, perhaps, is the book someone in Bangladesh should now write.

Sources

1. The Orwell Foundation, The Rule of Law (Orwell Prize for Books 2011): https://www.orwellfoundation.com/book-title/the-rule-of-law/
2. Counsel magazine, review of The Rule of Law: https://www.counselmagazine.co.uk/articles/the-rule-of-law
3. Bingham Centre for the Rule of Law, Our vision (the eight principles): https://binghamcentre.biicl.org/our-vision