How the Law Came to Rule, Part I

Dear readers,

this post talks about the book titled The Rule of Law by Tom Bingham. It is a modern book that takes us through the history of the rule of law and its role in today's society.

The Importance of The Rule of Law

The term ‘The Rule of Law’ was first coined by Professor A.V. Dicey in his book An Introduction to the Study of the Law of the Constitution, however it’s been said by multiple authors that the concept may go as far as the times of Aristotle and Mr Blackburn (1866, the first Lord of Law). Though the translation of Aristotle’s writing could more specifically be interpreted as ‘It is better for the law to rule than the man’.

Dicey in his book gives three interpretations of the meaning of the rule of law:

1. A person may only be penalised for breaching established law of the land. This law must be established by an original and naturally formed tribunal, not one picked by the ruling class.

2. All people are subject to the same law created by the same tribunals.

Example: If the Prime Minister damages an artwork at the National Art Gallery, they will be prosecuted under the same jurisdiction (the same court) as any other citizen as well as being

punished in the same way (they are subject to the same law as anyone else).

3. The Rule of Law is pervaded by the Constitution. Rather than focusing on big declarations of principle, we shall rely on the slower, incremental process of the common law on a judge by judge and case by case basis.

Later, Dicey’s view has been criticised mainly due to its understatement of the severity of the issues a British citizen faces. Professor Finnis describes the rule of law as the name given to the state of affairs in which a legal system is in ‘good shape’.

In the 2000s legal professionals criticised the overuse of the term. According to numerous sources, it takes away from the weight of the expression and makes it nothing but one of the self-praising expressions Anglo-American politicians so often utilise.

In the year 2000 the argument of the rule of law was brought up by both sides of the Bush v Gore presidential case ruled by the US Supreme Court. Commenting on that, professor J.Waldron expressed his dissatisfaction over the use of the argument of the rule of law merely as a ‘Hooray for our side.’ statement.

Professor B.Tamanha compared the way the rule of law is viewed to the concept of Good. Everyone is for it, but no one actually understands it nor can define what it is.

This however, does not mean that the rule of law is meaningless. There are three objections to this statement:

1. Persons of authority use the rule of law in their rulings and arguments.

2. Legislative instruments have the rule of law embedded in them.

Example: The Universal Declaration of Human Rights (1948), The European Convention of Human Rights (1950), The Consolidated Version of the Treaty of the European Union.

There is also reference to the rule of law in the constitutions and legislation of many other states. ‘The rule of law’ is an English expression, but Germany has the ’Rechtstaat’ and France the ‘État de droit’.

3. The Constitutional Reform Act 2005 mentions and underlines the importance of the rule of law multiple times throughout its course. It does not however contain a definition of the concept - that was left to the judges.

‘The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’

Historical context

Magna Carta (1215)

It was signed by King John and annulled by the Pope within a few months claiming that Magna Carta was extracted from the King by duress. It changed the constitutional landscape of Britain and over time the rest of the world.

Here is how:

1. It was a grant to all free people throughout the country. On top of that it assumed a legal equality (parity) among all free people, contributing to a sense of community.

2. Unlike popular belief, it was not only an immediate response to the oppression of a tyrannous king. Though there were quite a few problems during King John’s reign, Magna Carta heavily drew on previous similar documents, e.g. King Henry I’s charter of liberties and the coronation oaths of previous kings.

3. The Magna Carta was a sign of rejection of absolute, unaccountable power of the monarch. Instead it suggested an overriding power (law) to rule over even the highest authority.

Nowadays the King is the head of state, fulfilling a mostly representative role, whilst the Parliament creates the legislation. This legislation is then only signed by the King. However we still refer to the King as the supreme legislative authority in Parliament, of the executive as His Majesty’s Ministers and of the judiciary as His Majesty’s Judges, even though the King himself has no authority over hiring and firing them.

In the past, the legislative, executive and judiciary power were all centred in the monarch.

In reality people often didn’t really know what the Magna Carta said. Fortunately even what they believed it stood for proved to be very useful in future trials in the UK as well as other countries.

READ MORE IN PART II, COMING NEXT WEEK

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*