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.
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