In this summary of “The Rule of Law” by Tom Bingham, we will look at 4 out of 8 of his 8 principles that explore the rule of law more thoroughly and break down the general concept of it.
First, the law must be accessible and so far as possible intelligible, clear and predictable.
This point is important on 3 counts – with respect to criminal law, civil law and for a country’s growth.
Since one key function of criminal law is to discourage criminal behaviour, we need to know what exactly it is that we cannot do. Thus, one ought to be able to access knowledge on what is and what is not legal to do with relative ease and clarity. Next, the same applies to knowing our rights and obligations in civil law. Secondly it is important to know what our rights or obligations are in the civil law. Thirdly, trade, investment and business generally succeeds on account of having a body of accessible legal rules governing commercial rights and obligations. Alan Greenspan, former chairman of the Federal Reserve Bank of the United States, considered the single most important contributor to economic growth to be the rule of law.
However, this rule is observed to varying degrees from country to country. In the countries of continental Europe, for example in Germany, France, Italy and the Netherlands, much of the law is found in codes that are compact and carefully drafted. In many common law countries such as in Australia, legislation is written with clarity and intended for the reader to comprehend it. In Britain, it varies with their three sources of law – statute law (laws made by Parliament in enacted Acts of Parliament), common law (judge-made law that governs the judges’ decision), and the law of the European Union which overrides both statute and common law.
The second principle reads: Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
It was believed by Professor A.V. Dicey, the person who coined the very expression, ‘the rule of law’, that discretionary decision-making powers should not be conferred unto officials. He believed it would open a can of worms that is arbitrariness, which is the antithesis of the rule of law. As Lord Hewart put it, “It does not take a horticulturalist to perceive that, if a tree is bearing bad fruit, the more vigorously it yields the greater will be the harvest of mischief.” In brief, officials have the duty to apply the rules laid down but cannot invent new rules of their own.
That being said, this does not mean that every decision affecting the legal rights or liabilities of a citizen should be made in court, because the reality of the situation is that many decisions are made on a daily basis by such officials or administrators. The important point is that decisions should be based on a stated criteria and that criteria should be amenable to legal challenge.
However, there is danger in carrying these “criteria” to the extreme by allowing officials no room to manoeuvre, or exercise any discretion at all. If this were the case, the system would be inflexible and would not allow for exceptional cases calling for special treatment.
This does not only apply to officials. Judges must also exercise judgements and not discretion, as they normally do. What is notable is that judges do exercise discretion, but said discretion is in name only because it can only be exercised one way. For example, in claiming damages if liability and resulting damage are proved against a defendant, it is up to a judge’s discretion to grant an injunction, since he is not bound to do so even if liability is proven.
Of course, to ensure that a judge’s sentencing is not governed by judicial prejudice or partiality, or whimsy, or by different parts of the country (like a sentencing postcode lottery), it is governed in three ways. Firstly, a set of sentencing guidelines. Second, the ability for a defendant sentenced in the Crown Court to appel against his sentence, and finally that the Attorney General can seek leave to refer a sentence to the Court of Appeal.
The third principle speaks of equality. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
One would rightly regard equality before the law as a cornerstone of our society. Thomas Rainborough, a Cromwellian colonel says: “‘For really I think, the poorest he that is in England has a life to live as the greatest he.”
However, to Bingham’s regret, it took some time to reach this position in Britain, and there has been biases in judicial judgement against Roman Catholics, Dissenters and Jews, in the past.
To encapsulate the above, American judge, Justice Jackson said in 1949: “I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between the inhabitants except upon some reasonable differentiation fairly related to the object of regulation. […] There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”
The fourth principle states that 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.
This principle links naturally to the previous two principles, and some may even regard it as fundamental to the first two. The process by which courts enforce compliance is known as judicial review, which reviews the lawfulness of administrative action taken by others. The powers of judicial review are old powers that have been exercised for centuries, explaining the latin terms by which these remedies were traditionally known: habeas corpus (used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful ), certiorari (orders a lower court to deliver its record in a case so that the higher court may review it.), mandamus (orders a person, corporation, minister or tribunal to performa legal obligation), quo warranto (used to challenge a person’s right to hold a public or corporate office) and so on.
Hence, it is expected for an officer or body to follow any guidelines on policy, and that they will exercise their own judgement fairly, based on experience. However, this “fairness” may be hard to define. Traditional justice dictates that first, the mind of the decision-maker should not be biased towards personal interest and that second, anyone who is liable to have an adverse decision made against him should have a right to be heard (audi alteram partem, literally: hear the other party).
A decision-making power conferred unto officials by the statute must always be to advance the policy and objects of the Act. It also must not be exercised beyond or outside the limits of the power conferred (ultra vires, literally: beyond the powers).
Read Part 2, Principles 5 – 8, here!
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.