Book Review and my thoughts on "Rule of Law" by Tom Bingham

This book mentions that the Credit for coining the expression 'the rule of law' is usually given to Professor A.V Dicey, the Vinerian Professor of English Law at Oxford, who used it in his book An introduction to the study of the law of the constitution, published 1885.

In this book part 1, I came across what Tom Bingham has quoted Dicey's three meanings of definition for Rule of Law. In the first place, he wrote 'that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey's thinking was clear. If anyone - you or I - is to be penalized it must not be breaking some rule dreamt up by an ingenious minister or official in order to convict us. It must be for a proven breach of the established law of the land. And it must be a breach established before the ordinary courts of the land, not a tribunal of members picked to do the government's bidding, lacking the independence and impartiality which are expected of judges. 

Dicey expressed his second meaning in this way: "We mean in the second place when we speak of "rule of law" as a characteristic of our country, not only with us no man is above the law but (which is a different thing) that here, every man, whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Thus no one is above the law, and all are subject to the same law administered in the same courts. The first is the point made by Dr. Thomas Fuller 1654 -1734 in 1733: 'Be you never so high, the law is above you'. So, if you maltreat a penguin in the London Zoo, you do not escape prosecution because you are ArcBishop Canterbury; If you sell honors for a cash reward it doesn't help that you are the prime minister. The second point is important too. There is no special law or court which deals with archbishops and prime ministers: the same law, administered in the same courts, applies to them as to everyone else. 

Dicey put his third point as follows:

        There remains yet a third and a different sense which the 'rule of law' or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is prevaded by the rule of law on the ground that the general principles of the constitution (as for the example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.

In chapter 8, Dispute Resolution, Bingham points out that the British legal system faces two potent and enduring obstacles. The first is expense, the second is delay. The irony is that Justice is open to all in the UK. This is not a new complaint. Three hundred and fifty years ago it was said: "Every man complains of the horrible delays in matter of justice ... The remedy is worse than disease. 

If denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law, delay in affording a remedy is another. Delay is not only undesirable in itself but also exacerbates the problem of expense since experience clearly shows that the longer a case drags the more it costs.

In Darnell v the United Kingdom, a claim for unfair dismissal, the proceedings have lasted nine years.

In Robins v United Kingdom, it had taken four years to resolve a dispute about costs.

In some countries, notably Italy, the problem of delay is extreme. There are now, after the recent expansion, twenty-three working languages in the European Union, and the average delay in each case caused by translation alone is seven months. Delays of this order are generally agreed to be unacceptable, and one knowledgeable commentator has said: 'For a merger appeal to have any value for a business, the maximum time taken to deliver a judgment should be six months'. This so particularly in common law countries like the UK (and the United States, Canada, Australia, India etc.) as compared with civil law countries like (France and Germany). This is because the adversarial procedure adopted in common law courts is heavily dependant on expensive lawyers preparing, presenting, and arguing the case. Even in civil law countries, the goal of expeditious and affordable dispute resolution is hard to achieve. But the closer a country comes to achieving this goal, the better (in this respect) the rule of law is served. 

Part 3, Chapter 11 of this book talks about Terrorism and Rule of law where President George W. Bush in his State of the Union address in January 2002, had declared to applause, that: 'America will always stand firm for the non-negotiable demands of human dignity; the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance'. Justice Hugo Black of the US Supreme Court had in 1964 described the United States as 'dedicated' to the rule of law. Further, 

Bingham has stressed that the invasion of Iraq by the US, the UK, and some other states was

unauthorized by the security council there was, of course, a serious violation of international law and of the rule of law. 

To conclude the book review I would like to introduce the author Tom Bingham, 'the most eminent judge of judges' (Guardian) held office successively as Master of the Rolls, Lord Chief Justice of England and Wales, and the Senior Law Lord of the United Kingdom, the person to ever hold three offices.