Sunday, 12 September 2010

Review of Bingham's Rule of Law

Just finished this and just found out that Tom Bingham died yesterday. I think the work may gain added significance.
An overview of a central legal concept by recently retired leading judge. Impressive in its breadth and in its concise use of language: it's quite a short book.
Bingham outlines in his introduction that the work is not aimed at lawyers but the general populace. I think this is a bit of a vain hope as the technical legal detail (whilst far from impenetrable) generally will be difficult for people with no legal knowledge at all to engage with. As evidence of this witness his appearance on Start the Week where the rest of the panel had either not read the book or not really engaged with the ideas.
When I was a law student (a few years ago! )there was quite a large left wing debate on the rule of law as a concept. EP Thompson, The Marxist Historian and peace activist, labelled it "an unqualified human good" whereas Thatcherite and New Labour politicians were endlessly condemning strikers, protestors and activists for not respecting the "rule of law". Significantly this argument is not even skirted on by Bingham for his sole focus is the state and what it must do to adhere to the concept. Individuals are only mentioned in terms of their rights being protected.
This focus is welcome and enlightening because it removes the political rhetoric from the phrase. But it is limited particularly in his admittedly guarded support for Dicey and Hewart's attack on the "New Despotism" of governmental discretionary power in the 1920s - which was really an attack on socialism, municipal and general.
Its other innovation in exploring the concept is giving the rule of law a substantive content in particular one which respects Human Rights - this was anathema to traditional English law thinkers (particularly Dicey).
The most devastating part of the book is the attack on the decision to go to war in 2003 and the current anti-terrorist laws. A forensic dissection of the shocking legal arguments used by Blair and Straw - Bush as he points out wasnt bothered about getting legal endorsement. A case could be made that this part is the reason Bingham wrote this book it certainly reads like he is getting a lot off his chest. Essential reading when currently witnessing Blair all over the airwaves with his new memoirs.
More technically he also uses the book to have a go at 3 even more liberal law lords and their approach to the power of the courts viz Supremacy of Parliament. Ultimately there are weaknesses - there is a fairly naive view of history - English in particular - which he spends a chapter exploring. And the conclusion hedges its bets on whether the British Parliament will always respect the rule of law (rather than the Government/Administration on which he is fairly scathing) or whether recourse to an ultimate law - a constitution - is needed.
It is a contradiction of modern British Capitalism that the judiciary (in general) have become part of the liberal wing - upholding human rights and taking an interventionist approach. This seems a change from the age of Griffiths "The Politics of the Judiciary" but shows the changes that constitutional reform has made. Obviously they are still an integral part of the establishment - see the recent anti-trade union rulings - but they are now analytical critics of the state too. This covers a wide spectrum of views in the legal system: Bingham's are far from the most radical but are worth spending a bit of time reading