The rule of law

AuthorLord Bingham
2008] The Rule of Law 121
It is an immense honour and privilege to give the Sixth Sir
David Williams Lecture. It is also a formidable challenge, since
Sir David’s scholarly reputation is so high as to discourage
comparison. But the great range of his achievement – as legal
scholar, university leader, head of house, public servant and loyal
son of Wales – gives the lecturer a broad range of subject matter
from which to choose, without straying into fields Sir David has
not adorned. In choosing to address the Rule of Law – a big
subject for a lecture – my best hope must be that Sir David will
himself be provoked into giving us, at greater length, his
considered reflections on the subject.
The Constitutional Reform Act, 2005 provides, in section 1,
that the Act does not adversely affect “the existing constitutional
principle of the rule of law” or “the Lord Chancellor’s existing
constitutional role in relation to that principle”. This provision,
the Attorney General has suggested,1 illustrates the importance
attached to the rule of law in the modern age,2 which is further
reflected in the oath to be taken by Lord Chancellors under
section 17(1) of the Act, to respect the rule of law and defend the
independence of the judiciary. But the Act does not define the
existing constitutional principle of the rule of law, or the Lord
Chancellor’s existing constitutional role in relation to it.
The meaning of this existing constitutional principle may
no doubt have been thought to be too clear and well-understood to
call for statutory definition, and it is true that the rule of law has
* The Sixth Sir David Williams Lecture, given at Cambridge, 16 November
2006. It was originally published at (2007) 66 Cambridge Law Journal 67, and
is reproduced here by kind permission of the author and of the journal.
1 Lord Goldsmith QC, “Government and the Rule of Law in the Modern Age”,
lecture given on 22 February 2006, available at http://www.attorneygeneral. p 2.
2 The clause did not appear in the original draft of the Bill. It was finally
inserted on Third Reading in the House of Lords: HL Hansard 20 December
2004. This followed, and responded to the recommendations of, a House of
Lords Select Committee on the Bill chaired by Lord Richard QC.
Judicial Studies Institute Journal [2008: 1
been routinely invoked by judges in their judgments.3 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.4 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”.5 Judith Shklar has
suggested that the expression may have become meaningless
thanks to ideological abuse and general over-use: “[i]t 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”.6 Jeremy Waldron,
commenting on Bush v. Gore,7 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 “[h]ooray
for our side!”8 Brian Tamanaha has described the rule of law as
“… an exceedingly elusive notion” giving rise to a “… rampant
divergence of understandings” and analogous to the notion of the
Good in the sense that “… everyone is for it, but ha[s] contrasting
convictions about what it is”.9 The authors of the 2005 Act may
3 Many examples could be cited: see, for example, R. v. Horseferry Road
Magistrates’ Court, Ex p Bennett [1994] 1 A.C. 42 at 62, 64 (Lord Griffiths),
67 (Lord Bridge), 75, 76, 77 (Lord Lowry); A v. Secretary of State for the
Home Department [2005] 2 A.C. 68, [2004] U.K.H.L. 56, at paras. 42 (Lord
Bingham), 74 (Lord Nicholls).
4 Raz, “The Rule of Law and its Virtue”, in The Authority of Law: Essays on
Law and Morality (Oxford: Clarendon, 1979), p. 210.
5 Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p.
6 Shklar, “Political Theory and The Rule of Law”, in Hutchinson and Monahan
(eds.), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987), p. 1.
7 531 U.S. 98 (2000).
8 Waldron, “Is the Rule of Law an Essentially Contested Concept (in
Florida)?”, in Bellamy (ed.), The Rule of Law and the Separation of Powers
(Aldershot; Hampshire: Ashgate Publishing, 2005), p. 119.
9 Tamanaha, On the Rule of Law (Cambridge: Cambridge University Press,
2004), p. 3. But not everyone is for the rule of law. The historian E. P.
Thompson’s view that it was an “unqualified, human good” Whigs and
Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), p.

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