A Secretariat of Its Own: Judicial Independence and the Unfinished Business of Masdar Hossain

The Rule of Law, by Tom Bingham (Allen Lane, 2010; Penguin paperback, 2011).

Reviewed edition: Penguin paperback.

The author

Few judges have earned the right to write a small book on a large subject as fully as Lord Bingham of Cornhill — successively Master of the Rolls, Lord Chief Justice and Senior Law Lord, and by broad consent the outstanding English judge of his generation. The Rule of Law, completed shortly before his death, distils a lifetime on the Bench into barely two hundred pages that a first-year student can read in a weekend and a Chief Justice can profitably reread for the rest of a career.

The eight principles

Bingham’s achievement is to rescue “the rule of law” from its fate as a slogan and give it working content, in eight principles: (1) the law must be accessible, intelligible, clear and predictable; (2) questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; (3) the law must apply equally to all, save where objective differences justify differentiation; (4) ministers and public officers must exercise their powers in good faith, fairly, for the purpose for which the powers were conferred, and without exceeding their limits; (5) the law must afford adequate protection of fundamental human rights; (6) means must be provided for resolving civil disputes without prohibitive cost or inordinate delay; (7) adjudicative procedures provided by the state must be fair; and (8) the state must comply with its obligations in international law as in national law.

The verdict

Two things make the book exceptional. The first is its clarity: Bingham writes for the intelligent general reader, and there is not a wasted sentence in it. The second is its honesty: he does not pretend the rule of law is self-executing, and his chapters on terrorism and executive power confront squarely the moments when governments are most tempted to abandon it — written by a judge who, in the Belmarsh case, faced exactly that temptation across the courtroom and named it for what it was.
For the Bangladeshi reader, the book is almost uncomfortably relevant: every one of the eight principles maps onto a live debate in our own legal system, from the accessibility of laws to delay in the courts to the discipline of executive discretion. Essential for every law student; a standing examination of conscience for every practitioner and every government. Verdict: five stars, and a permanent place on the shelf nearest the desk.