3 November 2020

Rule of Law

By Miranda Marshall, Director, Hayes + Storr.

The Rule of Law in relation to the Brexit negotiations is much in the news currently. At least it makes a change from the pandemic.

In England we do not have a written constitution: nor should we. The closest thing we have is the Rule of Law. It may sound like a computer game or the title of an airport novel, but it is ancient. Lawyers and others can get emotional about it. To some it has become emblematic of what makes English law great. Its origins are ancient and found in many societies and philosophies worldwide.

The Rule of Law is defined in the Oxford English Dictionary as: “The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

The Rule of Law means that Law is supreme and is above every individual. The Rule of Law is a system to protect citizens against their Government, so as to ensure it does not treat them unfairly, or arbitrarily deprive them of their rights. It has evolved into being viewed by the liberal young as synonymous with human rights.

As a rookie law student in the 1980s we all had the sturdy orange book on Constitutional Law on our shelves. The first edition was written in 1885 by British jurist A. V. Dicey. It was not a fun read but had weightiness and determination about it which made us feel that what we were studying really mattered. Dicey coined the expression ‘The Rule of Law’ but did not invent the idea lying behind it.

In England, the Rule of Law is a long-standing principle of the way the country is governed, dating from Magna Carta in 1215 and the Bill of Rights 1689. The 19th century, brought the twin pillars of the British constitution which are the rule of law and parliamentary sovereignty.

Thomas Bingham, successively Master of the Rolls, Lord Chief Justice and Senior Law Lord of the United Kingdom, and the only person to hold all three offices, wrote ‘The Rule of Law’, published in 2008, 6 months before he died. It was chosen as ‘book of the year’ by several eminent people across the political spectrum.

Bingham said he first chose the title as a subject for a lecture he was asked to give some years before, as he was not sure he knew what it meant. He also said that those who used the expression did not know either, or did not mean the same thing. Following the lecture, The Guardian newspaper media described Lord Bingham as ‘the most revolutionary man in Britain’.

The Rule of Law has come to mean an amalgam of human rights and civil liberties, on the one hand, and security against a terrorist attack, on the other. It is a good thing, but the meaning is different and tailored (and twisted) to suit the purposes of those that use it.