Posted by: aboutalbion | July 31, 2012

Rule of law (1)

I am thankful that I live in a ‘rule of law’ society.  But what does that mean?

I’m working my way through a 2006 Cambridge lecture by Tom Bingham [aka Lord Bingham, Master of the Rolls, and then Lord Chief Justice] on that subject.

He states that his understanding of the principle of the ‘rule of law’ is “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.  But what does that mean in practice?

Bingham comments on eight dimensions to this definition of the ‘rule of law’.  Today, I will summarize the first two.

First, “the law must be accessible and so far as possible intelligible, clear and predictable”.  He uses this point to draw attention to the rather large volume of new primary and secondary legislation that is enacted each year in the UK, along with the many appeal court judgements that clarify the existing law.  All this legal activity qualifies the attempt to make the law on any given point certain.

Second, “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.  He has in mind here that any discretion enshrined in law should be carefully defined because, if the opposite was the case, then the opportunity for a decision maker to exercise biased personal preference would be increased.  And that outcome would then be the obverse of the ‘rule of law’.

 [Bingham, Tom (2006) The Rule of Law. [Sir David Williams Lecture to the Centre for Public Law, University of Cambridge]. 16 November.]

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