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"The Rule of Law" is a phrase much used but little examined. The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? In this brilliant short book, Britain's former senior law lord, and one of the world's most acute legal minds, examines what the idea actually means. He makes clear that the rule of law is not an arid legal doctrine but is the foundation of a fair and just society, is a guarantee of responsible government, is an important contribution to economic growth and offers the best means yet devised for securing peace and co-operation. He briefly examines the historical origins of the rule, and then advances eight conditions which capture its essence as understood in western democracies today. He also discusses the strains imposed on the rule of law by the threat and experience of international terrorism. The book will be influential in many different fields and should become a key text for anyone interested in politics, society, and the state of our world.
- Sales Rank: #299056 in Books
- Published on: 2011-02-01
- Original language: English
- Number of items: 1
- Dimensions: .60" h x 5.00" w x 7.60" l, .49 pounds
- Binding: Paperback
- 224 pages
About the Author
Tom Bingham held office successively as Master of the Rolls, Lord Chief Justice of England and Wales, and Senior Law Lord of the United Kingdom, the only person ever to hold all three offices. He became a life peer, as Baron Bingham of Cornhill in the County of Powys, on becoming Lord Chief Justice in 1996. In 2005 he was appointed a Knight of the Garter, the first professional judge to be so honored. He retired in 2008, and in the same year was elected by the Institut de France as the first winner of the Prize for Law awarded by the Alexander S. Onassis Public Benefit Foundation.
Most helpful customer reviews
14 of 15 people found the following review helpful.
A short book that everyone should read - particularly now.
By Baraniecki Mark Stuart
In this timely and useful book Tom Bingham (Britain's former senior Law Lord) explains in Part 1 the sources of present British law from the Magna Carta onwards, and in Part 2 discusses the key parts of the present day British system also referencing U.S. law.
It's a short and handy book that I keep close by, to check on for example, the legal meaning of, "Equality Before the Law" or "A Fair Trial".
Part 3 is a first rate exposition of the Rule of Law and the Sovereignty of Parliament (parliament takes priority) and Terrorism and the Rule of Law (a "War on Terror" isn't a real war in the WW2 sense). It becomes more than clear that this particular "War" has seriously curtailed basic Human Rights with regard to torture, detention without trial, kidnapping and the right to privacy (phone tapping without judicial order).
I highly recommend this book (BTW Tom Bingham isn't a terrorist).
12 of 13 people found the following review helpful.
Fine study of what the rule of law means in practice
By William Podmore
Tom Bingham, Lord Chief Justice 1996-2008, presents eight parts of the rule of law: The law must be accessible and so far as possible intelligible, clear and predictable. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Laws should apply equally to all, unless objective differences justify differentiation. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. The law must afford adequate protection of fundamental human rights. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. Adjudicative procedures provided by the state should be fair. The rule of law requires compliance by the state with its obligations in international law as in national law.
The European Convention on Human Rights (1950) was effected here by the Human Rights Act (1998). It says, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." (The US Bill of Rights bans the infliction of `cruel and unusual punishments'.) It bans slavery and forced labour - -even for benefits. It asserts the rights to life, liberty and security, to a fair trial, and to respect for privacy and family life. It upholds freedom of thought, conscience, religion, expression, assembly and association.
Article 1 of its Protocols protects: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ... The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." Article 2 asserts the right to education.
Bingham argues that "The rule of law requires that the law afford adequate protection of fundamental human rights." A Constitution is not enough, nor is a merely rhetorical commitment to the rule of law.
He looks at terrorism's impact on the rule of law and urges that our responses be lawful, not a mimicry of the terrorists' actions. He warns, "it cannot be said that the UK has shown that implacable opposition to torture and its fruits which might have been expected of the state whose courts led the world in rejecting them both. In a sequel to the Belmarsh case ... the Government argued that evidence obtained by torture abroad without the complicity of the British authorities could be considered by the Special Immigration Appeals Commission, a contention which the House of Lords unanimously and strongly rejected."
Finally, he states, "The invasion of Iraq was `a serious violation of international law and of the rule of law'.
4 of 4 people found the following review helpful.
The foundations of a fair and just society
By John Gibbs
The Rule of Law says that "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts", according to Tom Bingham in this book. The book traces the history of the concepts contained in the Rule of Law from the Magna Carta through Habeas Corpus (the right to challenge unlawful detention), the abolition of torture, the Petition of Right, the US Constitution, the French Declaration of the Rights of Man, and the law of war, to the Universal Declaration of Human Rights.
The author then goes on to address specifically a number of principles included within the broad concept of the Rule of Law:
* The law must be accessible, clear and predictable
* Legal rights should be resolved by laws and not by discretion
* Laws should apply equally to all unless objective differences justify differentiation
* Public officers must exercise their powers fairly
* Fundamental human rights must be protected
* Effective civil dispute resolution procedures must be provided
* Trials should be fair
* The state must comply with its obligations under international law
Totalitarian regimes down through the ages have been characterised by flagrant disregard for the Rule of Law, for example by having arbitrary laws applied inconsistently at the discretion of the state, granting impunity to a corrupt ruling class, tolerating bribery, imprisoning and torturing people without trial, dispossessing people of property and rights at whim, and murdering prisoners of war who have surrendered. There is not much controversy over whether such practices should be prohibited; the controversy comes when governments enact exceptions to the Rule of Law, arguing special circumstances.
Controversial subjects which the author discusses include terrorism and the Rule of Law, the practice of "extraordinary rendition", discriminatory treatment of non-nationals, detention without trial, hearings in which the accused is not informed of the case against him, torture, surveillance, and the legality of the war in Iraq.
It seems to me that the duty of a state to comply with its obligations under international law is perhaps the most fragile of duties, because the source of those obligations is simply agreements between countries. If one country decides it no longer "agrees", there is very little that can be done to enforce the agreement. Thus the question of when one country has the right to interfere by force in the affairs of another will always be a very difficult one.
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