There’s something very distinctive about the best legally trained minds. They can appear an oasis of order and sanity in what is otherwise a wasteland of half-thought-out ideas and popular prejudice. The prose they produce is characterized by astute observations and carefully qualified distinctions, and their mental habits are colored by an awareness of a whole network of statutes and judgments, often going back hundreds of years.
But at other times, the legal mind can be infuriating. The legal way of thinking, it can be argued, is the opposite of the philosophical one. Whereas the latter seeks to know what (if anything) is true for all time and in all circumstances, the former only wants to know how the law stands, or stood, in a particular time and place.
Tom Bingham was until recently, as Baron Bingham, the UK’s senior law lord, and the rule of law became something of a specialty for him. Indeed, a Bingham Centre for the Rule of Law was established in 2010, the year of his death, to support the development and strengthening of the rule of law worldwide.
In this concise and cogent book, he looks at many aspects of the concept of the rule of law — its origins in the English-speaking world, the stages by which it was consolidated and established as of higher authority than the autocratic claims of the monarchy (in the UK), and the way in which it has now begun to extend itself beyond national borders into an international system closely related to the parallel network of human rights.
The rule of law in essence means that the judiciary is independent of the executive arm of government, so that the law, as interpreted by the courts, applies to everyone equally, even if he or she happens to be the most senior member of the government.
This implies several contradictions, however. Despite the prime minister of the day being subject to the law of the land just as much as is his most humble office clerk, the ultimate authority (in the UK) is parliament, or technically the queen in parliament — a constitutional monarch signing into law acts passed by an elected parliamentary assembly. So how can the judiciary be in any sense constitutionally superior to the ultimate authority, that of parliament?
How indeed. “The British people,” Bingham writes in The Rule of Law, “have not expelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.” Even so, Bingham doesn’t adopt any final position on this difficult issue, presumably because a future legal judgment that something legislated by the British parliament is unconstitutional remains a real possibility.
There’s a similar awareness of complexity when Bingham considers the issue of information on what the law actually is being reasonably accessible to the ordinary man in the street. In the UK there’s no codified overview of the entire law anywhere available, so Bingham has to argue that such information can be obtained, albeit with the assistance of lawyers.
But he writes very vividly on how complex the law has become on some issues in recent years, notably since the UK became subject to the ultimate legal authority of the EU. He cites one case in which several judgments, and pending judgments on appeal, were issued or in preparation before someone pointed out that the regulation that the defendant stood accused of infringing wasn’t in operation at the date of the supposed offense.
He goes on to relate how clarifications are sometimes requested from Brussels, only for the ensuing explanation to be returned, and an explanation of the explanation asked for. How is the ordinary citizen supposed to know what the law is in such circumstances? Yet the old principle that ignorance of the law is no defense still remains in force.
There’s a certain paradox involved, too, in Bingham’s endorsement of the growing weight given to international law, considering how meticulous his account of the British experience — Magna Carta, Habeas Corpus, the Glorious Revolution of 1688, etc. — followed by the US system, which was based on British precedents, has earlier been. But international courts are becoming a fact of life, and Bingham sees them as growing out of the older tradition of attempts to lessen the horrors of war through a variety of conventions, though not necessarily signed by all parties involved in hostilities.
This is another occasion when the two faces of the legal mind come into view. On the one hand any attempt to improve the treatment of prisoners, say, and to lessen the terrors of armed conflict in general must be welcomed without reservation. Yet on the other there is a certain absurdity involved in moves to lessen the brutality of what is by its very nature an unrestrainedly brutal activity. Seeking to outlaw land mines or cluster bombs or dum-dum bullets is admirable, but the implication that other means of conflict not specified — such as smashing someone’s skull with a roadside rock — are consequently acceptable, because not listed in the conventions, is to many people simply ridiculous.
The issue here is human viciousness in itself, and it’s an area where the nice discriminations of legal minds such as Bingham’s quickly pass into irrelevance. No pacific Buddhist is going to be very interested in whether a soldier uses a club, an automatic rifle or a B52 bomber — each is equally and entirely culpable in his eyes, and quite rightly so.
But The Rule of Law is as sane, and seeks to be as effective, as legal texts anywhere can be. That Bingham was, in his context, on the side of the angels is indisputable. The only problem is that there are devils out there that laws may never be able to restrain.
In late October of 1873 the government of Japan decided against sending a military expedition to Korea to force that nation to open trade relations. Across the government supporters of the expedition resigned immediately. The spectacle of revolt by disaffected samurai began to loom over Japanese politics. In January of 1874 disaffected samurai attacked a senior minister in Tokyo. A month later, a group of pro-Korea expedition and anti-foreign elements from Saga prefecture in Kyushu revolted, driven in part by high food prices stemming from poor harvests. Their leader, according to Edward Drea’s classic Japan’s Imperial Army, was a samurai
Located down a sideroad in old Wanhua District (萬華區), Waley Art (水谷藝術) has an established reputation for curating some of the more provocative indie art exhibitions in Taipei. And this month is no exception. Beyond the innocuous facade of a shophouse, the full three stories of the gallery space (including the basement) have been taken over by photographs, installation videos and abstract images courtesy of two creatives who hail from the opposite ends of the earth, Taiwan’s Hsu Yi-ting (許懿婷) and Germany’s Benjamin Janzen. “In 2019, I had an art residency in Europe,” Hsu says. “I met Benjamin in the lobby
April 22 to April 28 The true identity of the mastermind behind the Demon Gang (魔鬼黨) was undoubtedly on the minds of countless schoolchildren in late 1958. In the days leading up to the big reveal, more than 10,000 guesses were sent to Ta Hwa Publishing Co (大華文化社) for a chance to win prizes. The smash success of the comic series Great Battle Against the Demon Gang (大戰魔鬼黨) came as a surprise to author Yeh Hung-chia (葉宏甲), who had long given up on his dream after being jailed for 10 months in 1947 over political cartoons. Protagonist
A fossil jawbone found by a British girl and her father on a beach in Somerset, England belongs to a gigantic marine reptile dating to 202 million years ago that appears to have been among the largest animals ever on Earth. Researchers said on Wednesday the bone, called a surangular, was from a type of ocean-going reptile called an ichthyosaur. Based on its dimensions compared to the same bone in closely related ichthyosaurs, the researchers estimated that the Triassic Period creature, which they named Ichthyotitan severnensis, was between 22-26 meters long. That would make it perhaps the largest-known marine reptile and would