Martin Kettle’s column alterted me to something I had missed — a lecture given to the Cambridge Law Faculty on November 16 by Lord Bingham, Britain’s most senior judge, in which he set out the eight criteria that a society has to meet if it is to be said to be obeying the rule of law. It’s a fascinating and sobering read — sobering because he implies that the current UK government doesn’t understand what the rule of law requires.
Bingham’s starting point is the way the phrase “the rule of law” has become debased by casual over-use. “It is true”, he says
that the rule of law has been routinely invoked by judges in their judgments. But they have not explained what they meant by the expression, and well-respected authors have thrown doubt on its meaning and value. Thus Joseph Raz has commented on the tendency to use the rule of law as a shorthand description of the positive aspects of any given political system. John Finnis has described the rule of law as “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”. Judith Shklar has suggested that the expression may have become meaningless thanks to ideological abuse and general over-use: “It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter”.
Jeremy Waldron, commenting on Bush v Gore in which the rule of law was invoked on both sides, recognised a widespread impression that utterance of those magic words meant little more than “Hooray for our side!”.
Well, hooray for Lord Bingham, say I! It’s a terrific lecture.
An audio recording is also available — see here.