the rule of law: what is it and why is it ‘constantly on people's lips’?

The Rule of Law: What Is It and Why Is It‘Constantly on People’s Lips’?psr_222 357..365

Christopher MayLancaster University

In this review of the late Tom (Lord) Bingham’s last book on the Rule of Law I briefly note that the rule of lawhas become an increasingly normal trope of (global) politics, before setting out Bingham’s characterisation of thenorm itself. I then ask how we might explain the ascendance of the term (in light of Bingham’s lack of interest inthe issue), such that Bingham’s book might find a mainstream non-academic publisher.

Bingham, T. (2010) The Rule of Law. London: Allen Lane.

Keywords: rule of law; political common-sense; Bingham; lawyers; normativereproduction

In the trailer for the film of the stage play Frost/Nixon, a quote from the originalinterview of 19 May 1977 was used, spoken by the actor playing President Nixon: ‘Whenthe President does it, that means that it is not illegal’. Clearly intended to be a shock byvirtue of David Frost’s in-film response, this helps to demonstrate how widely the normof the rule of law is accepted as a common sense of politics. Even those who wouldprobably find it difficult to describe its more formal dimensions are expected to regard therule of law as preferable to the rule of personal (or here, presidential) power. However,while the idea of the rule of law itself can claim a long and distinguished history, outsidethe realm of jurisprudence and political science the popular use of the term to evaluatepolitical practice(s) is a much more recent phenomenon.This is to say, as Pietro Costa andDanilo Zolo have pointed out, today ‘the expression the “rule of law” is remarkablywidespread, not only in political and legal literature but, most notably, in newspapers andpolitical language’ (Costa and Zolo, 2007, p. ix). Indeed, as Lord Bingham puts it in thebook under review here, the expression is ‘constantly on people’s lips’ (Bingham, 2010,p. vii), although he worried that it is not well understood, even as it is deployed inpolitical discussion and debate.

To rectify this problem, Bingham did not seek to establish a simple definition but ratherto introduce the non-legal reader to the range of issues that are encompassed by the term,and which it is vital for them to understand.To this end, his account begins with a shortand schematic history focusing on twelve moments he regarded as vital to the develop-ment of the rule of law, starting with Magna Carta in 1215, and ending with the UniversalDeclaration of Human Rights in 1948 (Bingham, 2010, pp. 10–33). Unlike HaroldBerman, who traced the origins of the norm to the international political conflicts around

POLITICAL STUDIES REVIEW: 2011 VOL 9, 357–365

doi: 10.1111/j.1478-9302.2010.00222.x

© 2010 The Author. Political Studies Review © 2010 Political Studies Association

the Papal Revolution of the twelfth century (Berman, 1983, pp. 94–9), Bingham preferredto keep his history firmly located in the British legal tradition, acknowledging the centralrhetorical role of A. V. Dicey, often regarded as, if not the originator of the term, thencertainly its first populariser in his famous Introduction to the Study of the Law of theConstitution (Bingham, 2010, pp. 2–5). While willing to admit some non-British precur-sors, it is Dicey’s influence that secures him the pole position in Bingham’s brief history.Bingham’s is not so much the history of the norm itself, but an account of its ascendanceto a central ideal of (British) liberal politics.

Once this brief history has established that the rule of law has been developed not onlythrough the arguments of jurisprudence (in which he seems relatively uninterested), butalso through legal and juridical practice, Bingham turns to explore its key elements in PartII, to which we return below.As a senior Law Lord, having also been Master of the Rollsand Lord Chief Justice, perhaps unsurprisingly his account of the rule of law’s elementsoften refers to cases he had adjudicated (and thus knew well), demonstrating a direct linkbetween norm and judicial decision making. Unlike Raymond Plant’s recent discussion ofthe Neo-liberal State (Plant, 2010), Bingham does not seek to establish the veracity of therule of law through an argument from jurisprudential or political theoretical principles;rather, reflecting his understanding of common law, it is an account based on custom,precedent and the development of law in response to political pressure.Thus, while Planttests neo-liberalism against its internal logic, asking whether the rule of law can serveliberalism’s moral ends without it becoming a threat to (a neo-liberal idea of) freedom,Bingham sees the rule of law as a political matter, a norm that is threatened and perhapseven undermined by the state itself.

The first of these threats relates to the (so-called) war on terror; Bingham points out thatunlike the US government, and drawing on the experience of Northern Ireland, the UKgovernment has been willing to prosecute terrorists as criminals, not as combatants,thereby remaining within rule of law principles (Bingham, 2010, p. 137). The UKgovernment has also not sought the considerable extension of powers that has beenaccorded to the executive in the US, nor has it sought to use third countries (utilisingextraordinary rendition) as a site for extra-legal measures (Bingham, 2010, pp. 138–42),although of course there are some questions about how far the UK has distanced itselffrom these practices. However, Bingham goes on to argue that unfortunately there are alsoissues where both countries have compromised the rule of law in their bid to confrontterrorism, ranging from discrimination against non-nationals to detention without trialand surveillance (Bingham, 2010, pp. 143–58).Although apparently unwilling to reflect onnon-common law states, like others Bingham concludes more generally that such aban-donment of the rule of law’s principles merely lets the terrorist win; if we abrogate therule of law, one of our key political values, then we compromise our own claims to beon the side of the good.

Bingham’s second threat is perhaps a little more surprising than his critique of thegovernment’s actions in the war on terror: he concludes that perhaps the major threat tothe rule of law in Britain is the sovereignty of parliament. While one can hope thatparliament will not legislate in a manner that conflicts with the rule of law, there is

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© 2010 The Author. Political Studies Review © 2010 Political Studies AssociationPolitical Studies Review: 2011, 9(3)

actually nothing to stop this happening (Bingham, 2010, pp. 160–70). As someone whoworked for Charter 88 in the early 1990s, such a conclusion has a familiar ring: one ofCharter’s key demands was a written constitution to ensure that our rights would not bedependent on the goodwill or good faith of parliament.Thus for Bingham, the rule of lawseems under threat from two directions: from political actions (the subject of his warningsin the final chapters); and from a more general misapprehension of a term that howeverwidely and frequently deployed remains insufficiently understood to act as a simple basisfor political criticism or a guide for legitimate political practice.

Most importantly, the use of the term is not merely widespread in the discussion ofBritish or American politics; frequently the notion of the rule of law lies behindprescriptions when democracy and modern governance are being promoted elsewhere.Thus, in Paul Collier’s recent book on Guns, War and Votes, much of the discussion ofaccountability and democratic governance is implicitly based on the introduction orreinforcement of the rule of law (made explicit in only a few places, most obviously ina section of the chapter on prescriptions for development) (Collier, 2009, pp. 199–201).The legal community frequently agrees (perhaps unsurprisingly); in its Rule of LawResolution (Prague, 29 September 2005), the International Bar Association asserted that the‘Rule of Law is the foundation of a civilised society’. Likewise, there is considerableinterest and policy-oriented discussion of the manner in which the rule of law maysupport economic development (Dam, 2006; compare Mattei and Nader, 2008), wherethe introduction of the rule of law is seen as the pathway to development and socialprogress. Therefore, it seems clear that the terminology of the rule of law (and thus animplied appeal to the norm itself) is much deployed.

In addition, and reflecting the threats laid out by Bingham, that governments and the stateapparatus they manage (the makers of the law) can violate the rule of law is also acommonly expressed political position. Commentators often suggest that there is anexternal set of norms that can be appealed to which merely changing the law itself doesnothing to nullify; the rule of law is about more than merely the rules themselves. Thishas often been the position of civil rights movements: as John Brenkman points out, civildisobedience is ‘a temporary, disciplined crossing of the boundary of lawfulness for thepurpose of achieving something on behalf of the rule of law, that cannot, in the judgmentof those taking action, be accomplished by merely obeying the law’ (Brenkman, 2007,p. 75, n. 23, emphasis in original). This distinguishes between the law’s inherent values,existing independently of some specific legal procedures, and its positively enacted, formalelements. Such a distinction makes the rule of law itself the site of political mobilisation;a universal legality can be served by particular illegality.

This has led much of the contemporary jurisprudential debate about the norm of the ruleof law to focus on the distinction between what is often termed the ‘thick’ Rule of Law,encompassing a wider set of legal norms such as equity and justice, and a narrower ‘thin’rule of law limited to procedural and organisational matters. (I will now capitalise thethicker Rule of Law, to distinguish it from the thinner conception.) These contrastingdepictions are both ideal typical; often it is more likely that definitions of legality wouldappear to move in one direction or another where the division between thick and thin

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conceptions is seen as a continuum between nodal points rather than two clearlydistinguishable modes of thought. Moreover, on closer examination, even the thinnerprocedural notion of the rule of law is normative in the sense that it supports a viewabout good and proper modes of procedure that cannot be said to be natural ornon-social. Thus, while tendencies and relative positions can be identified it is unlikelythat one would find anyone expressing the ideal typical end points of the rule oflaw/Rule of Law continuum.

Francis Fukuyama sees this distinction as spatial; generally Americans view the rule oflaw as procedural and as such it cannot encompass social objectives (although clearlyviews within the US differ widely), while Europeans are happier to accept a thicker Ruleof Law with social policy ends introduced through adjudication (Fukuyama, 2004,pp. 156–7). Conversely, Boaventura de Sousa Santos sees this distinction as reflective ofmodern political power: thinner approaches reflect ‘the streamlining of the emancipatorypotential of the rule of law and the conversion of the latter into just one more techniqueof regulation’ (De Sousa Santos, 2002, p. 341). Indeed, he argues that the thicker approachto the Rule of Law has now become a central aspect of the counter-hegemonic resistancethat confronts contemporary neo-liberal (globalised) capitalism (De Sousa Santos, 2002,pp. 278–311, pp. 445–6). As a critique of the thin conception, the thick Rule of Lawmakes a claim that conceptions at the thin end of the continuum have removed anyconcrete notion of the good society from the evaluation of accordance with the rule oflaw (Kratochwil, 2009, p. 196). The thicker reading of the Rule of Law requires us toconsider the content of the law and the manner in which the law interacts with thesociety that it purports to govern or regulate. This distinguishes between a claim for therule of law that merely seeks to identify a society that deploys legal procedures to regulateand shape behaviour, and a society where the Rule of Law itself precludes and forbidscertain (ab)uses of political power. However, as those proposing a thin depiction of therule of law attest, there is nothing to guarantee that the extra-legal norms recognised inthis manner will be progressive or liberal, and thus assessment of legality itself should beconfined to justified and legitimate practices, leaving social outcomes for the politicalrealm.

Despite these lively debates in legal studies, the problem for some scholars, such asJudith Shklar, is not the question of which definition of the ‘rule of law’ bestencompasses a reasonable political aspiration, but rather that the term itself has becomean empty signifier because those who deploy it ‘have lost a sense of what the politicalobjectives of the rule of law originally were and have come up with no plausiblerestatement’ (Shklar, 1987, p. 1); it has no more meaning than (in Jeremy Waldron’sparaphrase) a matter of cheering ‘Hooray for our side’ (Waldron, 2002, p. 139). This isto say that in debates about governance and government, the rhetoric of the rule oflaw is common, but it is remarkably indeterminate; it is frequently evoked on bothsides of an argument.

This then returns us to Bingham’s attempt to set out a range of issues that together canbe said to constitute the Rule of Law. In a series of short chapters that form the centralelement of the book he sets out eight key components of the Rule of Law:

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(1) ‘The law must be accessible and so far as possible intelligible, clear and predictable.’Here the key issue is that we can hardly expect law-abiding behaviour if it isimpossible for those so governed to be able to ascertain what the law actually is(Bingham, 2010, pp. 37–47).

(2) ‘Questions of legal right and liability should ordinarily be resolved by application ofthe law and not the exercise of discretion.’This is not to argue that there can be nodiscretion, only that any discretion must be exercised within the bounds of the law,and therefore no decisions should be arbitrary and without recourse to some law oranother (Bingham, 2010, pp. 48–54).

(3) ‘The laws of the land should apply equally to all, save to the extent that objectivedifferences justify differentiation.’ In other words, all must be equal before the law,with no distinction between, for instance the rich and the poor, the weak and thepowerful. Where the law distinguishes responsibility by age, there may be somereason to treat people differently, but for Bingham this can only be justified whenthese differences are ‘objective’ and not social, political or economic (most impor-tantly he argues against discrimination by race and gender in a modern liberalsociety) (Bingham, 2010, pp. 55–9).

(4) ‘Ministers and public officers at all levels must exercise the powers conferred onthem in good faith, fairly, for the purpose for which the power were conferred,without exceeding the limits of such powers and not unreasonably.’ Bingham actuallyintends this to underpin judicial review, so that the state can be held accountable tothe laws parliament has enacted and does not go beyond that democraticallygrounded intent (Bingham, 2010, pp. 60–5).

Up until this point Bingham’s elements are essentially procedural, requiring no judgementof the content of the law. Even the invocation of objective differences under (3) canhardly be said to be normative towards a liberal sense of equality, as ‘objective’ differencesare often in the eye of the (political) beholder; for instance racists see differences betweenethnicities as objective. However, the following four elements move Bingham firmlytowards a thicker reading of the Rule of Law.

(5) ‘The law must afford adequate attention to fundamental human rights.’ HereBingham explicitly rejects the thin reading of the rule of law in favour of the thickRule of Law, spending some time exploring various articles of the EuropeanConvention on Human Rights. For Bingham, as for many supporters of the thicknorm, the Rule of Law cannot be said to obtain where the procedures of law areexplicitly intended to underpin injustice (Bingham, 2010, pp. 66–84).

(6) ‘Means must be provided for resolving, without prohibitive cost or inordinate delay,bona fide civil disputes which the parties themselves are unable to resolve.’This is tosome extent the extension of the first point about accessibility; if effective repre-sentation is blocked by costs to all but the wealthiest defendants then the law cannotbe said to be treating all equally. Here Bingham offers a clear defence of legal aid andexpeditious legal process as crucial to the maintenance of the Rule of Law. Givenquestions about the impact of economic inequality and the measures needed to

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ameliorate these difficulties, this element reflects a political position about the goodsociety that evokes issues of extra-legal inequality (Bingham, 2010, pp. 85–9).

(7) ‘Adjudicative procedures provided by the state should be fair.’ This is to say, thejudiciary and legal profession must be independent of the state, allowing both sides(prosecution and defence) a fair trial. Bingham also indicates that the defendant mustknow the charges against him or her and be able to interrogate the evidenceproperly. This element is both thin (procedural) and also thick, in supporting aparticular norm of independence that suggests a danger of politicisation however thelaw is stipulated. Given that this requires a judgement about political organisationrather than the procedures of the law themselves, again this might be regarded as athicker reading of the Rule of Law (Bingham, 2010, pp. 90–109).

(8) ‘The rule of law requires compliance by the state with its obligations in internationallaw as in national law.’ Here Bingham expands his purview from the previouslyrather domestic orientation of his discussion to argue that the state’s obligations donot end with its own law, but rather extend to the realm of global politics andcommitments made therein. As he has already noted, this includes invocations ofhuman rights but also the rules of war and other international regulatory arrange-ments. Unlike the political realists in international relations, Bingham does notrecognise a moral difference between inside and outside the state (Bingham, 2010,pp. 110–29).

Bingham’s discussion of these elements of the Rule of Law is intended to demonstratethat the norm itself is multifaceted but also that merely recognising procedural normsshould not be sufficient for any state to be accorded the recognition of being governedby the Rule of Law. For Bingham the political standard is higher than merely acting inline with basic legal norms.

However, given that Bingham’s concern was that too few people who appeal to the Ruleof Law understand what it entails, it is odd that he demonstrates no curiosity about howthe term has become so extensively deployed. His historical chapters clearly imply arelatively teleological tale of social progress. However, being a little more cynical, wemight suggest that history has less to do with it than has the fact that around 20 per centof all politicians worldwide come from the legal profession (The Economist, 2009).Additionally, if, as Paul Kahn contends, in general terms American political identity is‘peculiarly dependent on the idea of law’ (Kahn, 1999, p. 9), then the rise of Americanglobal power might also be expected to impact on the manner in which (global) politicswas perceived and characterised. Certainly, Pierre Bourdieu agrees that the social andpolitical role of law (and in his terms, therefore, the relative strength of the juridical field)is notably stronger in the US, and hence the weight accorded the rule of law is that muchgreater (Bourdieu, 1987, p. 823). Thus, the rise of the rule of law as norm and rhetoriccould be directly linked to the post-1989 (political) establishment of a single general(US-inspired) development trajectory focused on democratisation and liberal marketeconomy (Carothers, 2006, pp. 6–7). In other words, the triumph of neo-liberalism andthe concomitant defeat of communism shifted the focus of global politics, bringing with

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it a clear and established role for the rule of law, a rather different history from Bingham’sfocus on the UK.

Also absent from Bingham’s consideration is the professionalisation of the (global) politi-cal classes. For Harold Perkin the professionalisation of society includes a move from afocus on capital either as investment or activity based, to a focus on property (which isto say scarcity) in the delivery of services (Perkin, 1990, pp. 377–80, passim). A majoraspect of the ‘professional project’ undertaken by many professions is the development andpromotion of a higher status for themselves in the social (and political) order (Mac-Donald, 1995, ch. 7).This status is established by the control exercised over the discourseand definition of the field in which the (nascent) profession seeks to operate.This controlis then extended through the process of abstraction and reduction: particular problems arereconceived in abstract terms and then reduced to problems that fall within the jurisdic-tion of the profession (Abbott, 1988, p. 98). One of the key professions that seeks toestablish and maintain the scarcity (and thus value) of its expertise is, of course, the legalprofession (Bourdieu, 1987). Social problems are increasingly re-conceptualised as issues ofregulation, and then reduced to issues of the development, application and interpretationof law, where lawyers can claim expertise.

Moreover, the rule of law allows the continual competition for authority over contentiousissues to be presented not as political contest, but rather as legitimate choice, overseen bylawyers and technologists, not politicians with sectional interests. Indeed, Bingham’sportrayal of the importance of judicial and legal independence reflects this aspect ofdepoliticisation, as do his warnings at the end of the book. This is not a recentdevelopment: as David Sugarman points out, lawyers’ political role has partly beenfacilitated by the written form of the Western legal tradition:

Writing enabled lawyers to claim to be, and sometimes to appear to be, aboveand beyond the individual acts of power involved in legal practices and theapplication of the law. In manifold ways, the written form of law abrogatedpower to those lawyers claiming specialist expertise in the ‘interpretation’ of thelaw (Sugarman, 1993, pp. 292–3).

This has not been passive or reactive development but rather is linked to the professionalproject of lawyers to promote their expertise and skills (and to reify the law, to ensure itneeds interpretation).Working in a long Western political tradition that has in one way oranother promoted law as a technical ordering device to promote the good political life,lawyers have emphasised the specialist and technical character of their undertaking, andsought to maintain and increase their social status by closely guarding entry to theprofession.The professional project of lawyering has involved both the careful fostering ofa closed group (the lawyers) alongside the promotion of their tool (law) as a solution toproblems of order.

Thus, one element for understanding the rise of the Rule of Law norm is to attribute atleast part of the cause to the number of lawyers entering politics alongside a more generalprofessionalisation of the global polity, which has moved legal forms of organisation to the

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forefront.The political self-maintenance of the legal profession alongside a trend towardsprofessionalisation in modern society have reinforced each other to prompt the increasingnormative deployment of the rule of law’s practices. However, the value of professions topolitics is by no means uncontested; Perkin notes that the idea of a scarcity in expertiseand professional service (driving the increase of value of the profession’s work) was firmlyrejected by the New Right in the UK and elsewhere in the 1980s (Perkin, 1990, ch. 10).This gives one indication of why much of the work on the Rule of Law has been drivenby critical and oppositional groups of one sort or another. While the neo-liberal/NewRight agenda saw law (to simplify a little) as merely a thin procedural mechanism todeliver the order required for capitalist expansion, for those seeking to maintain profes-sional norms the thicker Rule of Law was preferred as a conception of legal developmentwhich supports the values of social justice and fairness that continue to lie at the heart ofthe self-conception of various professions; self-conceptions maintained by the profession-als’ representative bodies acting in a guild-like manner.

The Rule of Law, then, often means different things to different people, with differentpolitical views. While for those who support the thinner readings of the rule of law wecan identify where formalised law-like procedures obtain, to ask more of our definitionis to violate the key local dimension of law’s rule; its connection to and with the societythat it governs. However, for Bingham (and others who argue for the thick definition) thisis no answer as the rule of law then becomes merely a mechanism that can deliver bothjustice and injustice. What is perhaps most interesting is that while we argue whether athick Rule of Law or merely a thin rule of law is the marker of a democratic and liberalsociety, we seem to have moved beyond the point when we might ask: is there any otherway of ruling society? The Rule of Law has become so tied up with the definition of thegood society, we no longer seem to reflect on how this particular norm has itself becomeso central to (progressive) politics as to be beyond the question: how has this normativedominance happened? The Rule of Law has been so normalised as to be beyond anythingbut reformist critique, and as such while Bingham’s exploration is useful in presenting anuanced and historical understanding of the norm, it leaves this political question bothun-posed and unanswered.

(Accepted: 22 June 2010)

About the AuthorChristopher May is Professor of Political Economy in the Department of Politics, Philosophy and Religion atLancaster University, and is currently an Associate Dean of the Faculty of Arts and Social Sciences. His work onintellectual property has been widely cited and culminated in the revised edition of A Global Political Economy ofIntellectual Property Rights:The New Enclosures (Routledge, 2010). He has now embarked on a new research projectexamining the Rule of Law as the common sense of global politics and how it is (re)produced as both norm andas an element of democratisation.

Christopher May, Department of Politics, Philosophy and Religion, Lancaster University, Lancaster LA1 4YD, UK;email: [email protected]

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the rule of law: what is it and why is it ‘constantly on people's lips’?

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