“The rule of law is the closest we are likely to come to a universal secular religion.”

— Tom Bingham, The Rule of Law

Introduction:

Tom Bingham’s The Rule of Law is not only a profound legal text but also a work of great philosophical and practical relevance. Written by one of the most distinguished legal minds of the 20th and early 21st centuries, Bingham’s book reflects the insights of a lifetime spent at the pinnacle of the legal profession. As a former Lord Chief Justice of England and Wales, Bingham brings an unparalleled level of experience and authority to his exploration of the rule of law, a principle he describes as “the nearest we are likely to approach a universal secular religion.”

In this book, Bingham seeks to clarify a concept that is frequently invoked but often misunderstood or taken for granted. The rule of law, Bingham argues, is not merely about the formal adherence to laws by governments, but rather a deeper commitment to the idea that law must be fair, clear, and just, and that no one—whether an individual or a government—is above it. The clarity with which Bingham sets out his arguments is commendable, as he bridges the often-daunting divide between complex legal theory and accessibility for a lay audience. His explanation of key legal principles, combined with his engagement with historical and contemporary issues, makes The Rule of Law not only a must-read for legal professionals but also for anyone interested in governance, democracy, and justice.

Overview of the Rule of Law:

Before delving into the content of Bingham’s arguments, it is important to understand the significance of the rule of law as a legal concept. The phrase has its roots in ancient Greece, but it is most closely associated with the writings of legal philosophers such as Aristotle, who believed that “law should govern,” as opposed to arbitrary rule by individual leaders. In modern times, the rule of law has been considered one of the foundational principles of democratic governance, often seen as the key mechanism by which power is regulated and human rights are protected.

Bingham’s overarching goal in The Rule of Law is to develop a clear, practical, and comprehensive understanding of what this concept means in the contemporary world. He begins by tracing the historical evolution of the rule of law, particularly in the English legal tradition, from Magna Carta to the present day. He reminds the reader that the rule of law is not a static principle but one that has evolved over centuries, reflecting changes in political, social, and economic conditions. In doing so, Bingham emphasizes that while the rule of law may appear to be a self-evident concept, it is, in fact, the product of hard-won legal battles and deep intellectual thought.

Defining the Rule of Law:

Bingham’s definition of the rule of law rests on eight key principles, each of which he explores in depth:

1. Accessibility and clarity of law: Bingham argues that laws must be accessible to the public and, where possible, clear and understandable. He points out that an individual cannot reasonably be expected to follow laws that are either inaccessible or incomprehensible. This principle of clarity is vital in ensuring that the legal system operates with fairness, as it allows individuals to understand their legal rights and obligations.

2. Laws should be passed in a clear, prospective manner: Bingham insists that laws should not be retroactive. People must be able to anticipate the consequences of their actions based on the law as it exists at the time. If laws were applied retroactively, it would violate the very premise of justice, where people are punished for actions that were not illegal at the time they were performed.

3. Equality before the law: One of the most fundamental aspects of the rule of law, according to Bingham, is the principle of equality. No individual or group should be above the law, and everyone should be treated equally before it. This includes not only ordinary citizens but also those in positions of power. Bingham’s critique of the executive’s overreach during the Iraq War, as well as his discussion of the legal frameworks governing terrorism and national security, highlights the dangers of political leaders acting as if they are exempt from legal scrutiny.

4. Adequate protection of fundamental human rights: Bingham stresses that the rule of law is incomplete if it does not protect fundamental rights. In his view, human rights are an essential part of any legal system, and laws that violate basic rights cannot be seen as legitimate. Bingham traces the evolution of human rights protections, particularly in the context of British law, highlighting the impact of instruments such as the European Convention on Human Rights (ECHR).

5. Resolution of disputes without undue delay or expense: A functioning legal system, Bingham argues, must be accessible to everyone and should not be so slow or costly as to effectively deny justice. He reflects on the need for legal systems to provide timely and affordable dispute resolution mechanisms, ensuring that access to justice is not a privilege reserved for the wealthy.

6. Public officials must exercise power reasonably, in good faith, and within the limits of the law: Bingham is deeply concerned with the accountability of public officials. The principle that government action must be lawful and reasonable is a critical safeguard against tyranny and corruption. His analysis of landmark cases such as R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs demonstrates how the courts serve as a check on executive overreach.

7. Fair trials: Fair trials, Bingham argues, are the bedrock of the rule of law. Without fair legal procedures, the legitimacy of the law itself is called into question. Bingham’s examination of the use of control orders in terrorism cases, for example, raises important concerns about balancing national security with the right to a fair trial.

8. Compliance with international law: Bingham concludes with the principle that, in an increasingly globalized world, respect for international law is essential for the rule of law. He makes the case that international law is not something that operates in isolation from domestic law but is an integral part of it. The failure of states to comply with international legal obligations, particularly in the context of military interventions, undermines the rule of law both at home and abroad.

Bingham’s Discussion on Human Rights and the Rule of Law:

One of the most striking aspects of Bingham’s analysis is his focus on the relationship between the rule of law and the protection of human rights. Bingham is a strong proponent of the idea that the rule of law must do more than merely ensure that governments follow proper legal procedures; it must also guarantee that individuals’ fundamental rights are protected. He draws on the British tradition of individual liberty, embodied in documents such as Magna Carta, as well as more recent developments, including the incorporation of the ECHR into British law through the Human Rights Act 1998.

Bingham does not shy away from addressing the challenges posed by terrorism and national security to the protection of human rights. In his discussion, Bingham critiques the erosion of civil liberties in the name of security. He expresses concern over practices such as detention without trial and the use of torture, arguing that these practices violate the rule of law because they deny individuals the basic protections to which they are entitled. He also highlights the importance of judicial oversight in ensuring that governments do not overstep their bounds when dealing with national security issues. Bingham’s insistence that governments must operate within the limits of the law, even when dealing with terrorism, underscores his commitment to the principle that the rule of law must protect human dignity and individual freedoms.

The Rule of Law and International Law:

In the later chapters of the book, Bingham turns his attention to the question of international law and its relationship to the rule of law. His analysis is timely and relevant, particularly in light of the growing importance of international institutions and treaties in addressing global challenges such as climate change, migration, and armed conflict.

Bingham argues that the rule of law cannot be confined to national borders. In an increasingly interconnected world, he suggests, domestic legal systems are inevitably shaped by international legal norms. For example, he points to the way in which European Union law and international human rights treaties have influenced British law. Bingham also emphasizes that international law serves as an important check on the behavior of states, particularly in matters of war and peace.

One of the most controversial sections of the book is Bingham’s discussion of the Iraq War. He critiques the legal justifications provided by the U.S. and U.K. governments for the invasion of Iraq in 2003, arguing that the war was illegal under international law. This analysis reflects Bingham’s broader concern with the ways in which powerful states can sometimes manipulate or disregard the rule of law in pursuit of political objectives. His critique of the Iraq War is not merely a condemnation of a specific conflict but also a warning about the dangers of undermining international legal norms. When states ignore or circumvent international law, Bingham suggests, they weaken the entire global legal order, with potentially devastating consequences.

Critique of the Book:

While Bingham’s book is an outstanding contribution to legal scholarship, it is not without its limitations. Some readers may find his analysis too idealistic, particularly in light of the complex realities of modern governance. For example, while Bingham’s principles are certainly admirable, they may be difficult to implement in practice, particularly in countries with weak legal institutions or in situations where national security concerns genuinely conflict with individual rights.

Additionally, while Bingham touches on important issues such as terrorism and international law, some critics might argue that he does not fully engage with the complexities of these issues. For example, his discussion of international law could have been expanded to address emerging challenges such as climate change, cyber warfare, and the regulation of multinational corporations. These issues, while relatively new, pose significant challenges to the traditional understanding of the rule of law and could have benefited from a deeper analysis within the scope of Bingham’s work. In particular, the role of international bodies such as the United Nations and the International Criminal Court in enforcing the rule of law in cases of climate-related disputes, corporate responsibility, and cross-border cybercrime could have provided a richer context for Bingham’s discussion of international law.

Another critique that can be leveled against Bingham’s analysis is that while his principles are compelling, they often assume a functioning democratic system with robust institutions. In reality, many parts of the world do not operate under such conditions. Autocratic regimes, failed states, and countries with deeply flawed legal systems are unlikely to adhere to the principles Bingham outlines. While Bingham does acknowledge that the rule of law is an aspirational goal, the book could have benefited from a more detailed exploration of how the rule of law can be fostered in these challenging environments.

Moreover, Bingham’s focus on the British and Western legal traditions, while understandable given his professional background, leaves out valuable perspectives from other legal systems around the world. For example, examining the rule of law through the lens of non-Western legal traditions—such as Islamic law, Hindu law, or Confucian principles—could have provided a broader, more nuanced view of how the rule of law is understood and applied globally. This would have also allowed for a discussion on how different cultural and legal traditions might intersect or conflict with the principles he outlines.

The Rule of Law and the Challenges of Modern Governance:

One of the central challenges of modern governance that Bingham addresses is the tension between national security and civil liberties. This is a theme that resonates deeply in today’s world, where governments often justify sweeping legal powers in the name of fighting terrorism. Bingham’s analysis of legislations and policies is especially important in this regard. He criticizes the British government’s use of control orders and the indefinite detention of suspects without trial, arguing that such practices erode the rule of law by bypassing the judiciary and denying individuals their right to a fair trial.

Bingham’s approach to balancing security and liberty is one that insists on strict adherence to legal principles, even in times of crisis. His arguments echo the famous maxim by U.S. Supreme Court Justice Robert H. Jackson, who warned that the Constitution should not be bent in times of war because it might never recover. Bingham’s insistence on the universality of the rule of law, regardless of the external threats a society might face, is one of the strongest elements of his work.

This is not to say that Bingham is oblivious to the real threats posed by terrorism or the practical difficulties of governing in a world where security risks are both complex and pervasive. Rather, his argument is that governments must find ways to address these risks without sacrificing the fundamental legal protections that define a just society. He acknowledges that some compromises might be necessary but insists that these compromises should be made within the framework of the law, rather than outside it.

Bingham’s reflections on modern governance also touch on the growing influence of technology and surveillance on legal systems. Although the book was written before the full explosion of digital privacy debates, his discussion of the government’s increasing ability to monitor citizens anticipates many of the challenges we face today in the age of mass data collection and artificial intelligence. While Bingham does not offer detailed solutions to these emerging issues, his emphasis on the need for legal frameworks to evolve in step with technological advancements remains relevant.

Conclusion:

Tom Bingham’s The Rule of Law is a masterpiece of legal writing, offering a clear and authoritative exploration of one of the most important concepts in democratic governance. Bingham’s work serves as both a primer on the historical development of the rule of law and a passionate defense of its continued relevance in the modern world. By identifying eight essential principles, Bingham provides a framework for understanding how the rule of law operates in practice, while also highlighting the challenges it faces in an era of political turbulence and rapid technological change.

The book’s greatest strength lies in its ability to communicate complex legal ideas in a way that is both accessible and engaging. Bingham’s writing is clear and direct, with a focus on practical examples drawn from his extensive experience in the judiciary. This accessibility makes the book valuable not only for legal scholars and practitioners but also for students, policymakers, and anyone interested in the preservation of justice and democracy.

Despite its many strengths, The Rule of Law is not without its limitations. Some readers may find Bingham’s analysis overly idealistic, particularly in his insistence that the rule of law must apply universally, even in times of crisis. Others may wish for a more in-depth discussion of how the rule of law can be applied in non-Western contexts or in countries with weak legal institutions. Nevertheless, these critiques do little to diminish the overall impact of Bingham’s work.

In an age where the principles of justice, fairness, and accountability are under threat in many parts of the world, The Rule of Law stands as a vital reminder of the importance of adhering to legal norms. Bingham’s work is not just a scholarly treatise on law; it is a call to action, urging governments, legal professionals, and citizens to uphold the rule of law as a safeguard against tyranny and injustice. As such, The Rule of Law is likely to remain a key reference point for discussions on legal theory and practice for many years to come.

About the Author:

Tom Bingham (1933–2010) was one of the most respected and influential British judges of the 20th and early 21st centuries. His illustrious legal career included serving as Master of the Rolls, Lord Chief Justice of England and Wales, and Senior Law Lord. Throughout his career, Bingham was known for his deep commitment to the principles of justice, fairness, and the protection of individual rights.

Bingham was particularly notable for his contributions to human rights law and constitutional law. His judicial decisions often championed civil liberties, and he was a key figure in the incorporation of the European Convention on Human Rights into British law via the Human Rights Act of 1998.

In addition to his judicial career, Bingham was a prolific legal scholar, with The Rule of Law being his most celebrated work. The book distills his lifetime of legal wisdom into an accessible exploration of the rule of law, reflecting his belief in the importance of law as a safeguard against tyranny and injustice. His writing is marked by its clarity and accessibility, making complex legal principles understandable to a wide audience.

Bingham’s legacy lives on through his contributions to legal thought and his profound influence on the development of British law and international human rights.