Editorial Committee of the Cambridge Law Journal

The Rule of Law

Author(s): Lord Bingham
Source: The Cambridge Law Journal, Vol. 66, No. 1 (Mar., 2007), pp. 67-85
Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law
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CambridgeLaw Journal, 66(1), March 2007, pp. 67-85
Printed in Great Britain

ARTICLES

THE RULE OF LAW

LORD BINGHAM*

IT is an immensehonour and privilegeto give the Sixth Sir David

WilliamsLecture.It is also a formidablechallenge,since Sir David's
scholarlyreputationis so high as to discouragecomparison.But the
great range of his achievement- as legal scholar, universityleader,
head of house, public servant and loyal son of Wales - gives the
lecturera broadrangeof subjectmatterfromwhichto choose,without
strayinginto fields Sir David has not adorned.In choosingto 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 consideredreflectionson the subject.
The ConstitutionalReformAct 2005provides,in section1, that the
Act does not adverselyaffect "the existingconstitutionalprincipleof
the rule of law" or "the Lord Chancellor'sexistingconstitutionalrole
in relationto that principle".Thisprovision,the Attorney-General has
suggested,'illustratesthe importanceattachedto the ruleof law in the
modernage,2whichis furtherreflectedin the oath to be takenby Lord
Chancellorsundersection 17(1)of the Act, to respectthe rule of law
and defend the independenceof the judiciary.But the Act does not
define the existingconstitutionalprincipleof the rule of law, or the
Lord Chancellor'sexistingconstitutionalrole in relationto it.
The meaningof this existingconstitutionalprinciplemay no doubt
have been thought to be too clear and well-understoodto call for
statutory definition, and it is true that the rule of law has been
routinelyinvoked by judges in their judgments.3But they have not
* The Sixth Sir David Williams Lecture, given at Cambridge, 16 November 2006.
Lord Goldsmith QC, "Government and the Rule of Law in the Modern Age", lecture given on
22 February 2006, p 1.
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.
3 Many examples could be cited: see, for example, R. v. Horseferry Road Magistrates' Court, Ex p
Bennett [1994] 1 A.C. 42 at pp 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] UKHL 56, paras. [42]
(Lord Bingham), [74] (Lord Nicholls).

67

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68 The CambridgeLaw Journal [2007]

explained what they meant by the expression, and well-respected

authors have thrown doubt on its meaningand value. Thus Joseph
Raz has commentedon the tendency to use the rule of law as a
shorthanddescriptionof the positive aspects of any given political
system.4John Finnis has describedthe rule of law as "[t]hename
commonlygivento the state of affairsin whicha legalsystemis legally
in good shape".5JudithShklarhas suggestedthat the expressionmay
have become meaninglessthanks to ideological abuse and general
over-use:"It may well have becomejust another one of those self-
congratulatoryrhetoricaldevices that grace the public utterancesof
Anglo-Americanpoliticians.No intellectualeffort need thereforebe
wasted on this bit of ruling-class chatter."6 Jeremy Waldron,
commentingon Bushv. Gore,7in which the rule of law was invoked
on both sides, recogniseda widespreadimpressionthat utteranceof
those magic words meant little more than "Hooray for our side!".8
Brian Tamanahahas describedthe rule of law as "an exceedingly
elusive notion" giving rise to a "rampant divergence of under-
standings"and analogousto the notion of the Good in the sense that
"everyoneis for it, but havecontrastingconvictionsaboutwhatit is".9
The authors of the 2005 Act may or may not have known of these
criticalacademicopinions. But they can scarcelyhave been unaware
that Dicey's expositionof the rule of law, firstpropoundedin 1885,10
had attracted considerablecontroversyover the years which had
elapsedsincethen.So it seemsunlikelythat the meaningof the existing
constitutionalprinciplewas thoughtso clearas to obviatethe needfor
definition.
It is perhaps more likely that the authors of the 2005 Act
recognised the extreme difficulty of formulating a succinct and
accuratedefinitionsuitablefor inclusion in a statute, and preferred
to leave the task of definition to the courts if and when occasion
arose."1If so, one has considerablesympathywith that view, the more
4 Joseph Raz, "The Rule of Law and its Virtue", in The Authority of Law: Essays on Law and
Morality (Oxford 1979), p. 210.
5 John Finnis, Natural Law and Natural Rights (Oxford 1980), p 270.
6 Judith Shklar, "Political Theory and The Rule of Law", in A. Hutchinson and P. Monahan (eds.),
The Rule of Law. Ideal or Ideology (Toronto 1987), p 1.
7 531 US 98 (2000).
8 Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (in Florida)?", in
R. Bellamy (ed.), The Rule of Law and the Separation of Powers (Aldershot 2005), p 119.
9 Brian Tamanaha, On the Rule of Law (Cambridge 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 1975), p 266 has not been universally accepted:
see Morton Horwitz, "The Rule of Law: An Unqualified Human Good?" (1977) 86 Yale Law
Journal 561; The Transformationof American Law: 1870-1960 (New York 1992).
0oA. V. Dicey, An Introduction to the Study of the Law of the Constitution(London 1885), Part II.
" In the House of Lords (HL Hansard 7 December 2004, cols 742-743) Lord Kingsland suggested
that the clause (in a slightly different earlier version) was not justiciable. I find this impossible to
accept. A constitutional principle that cannot be legally enforced would not appear to me to be
very valuable.

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C.L.J. The Rule of Law 69

so since the meaningof the concept has to some extent evolved over
time and is no doubt likely to continue to do so. But the statutory
affirmationof the rule of law as an existingconstitutionalprinciple
and of the LordChancellor'sexistingrole in relationto it does havean
importantconsequence:that the judges, in their role as journeymen
judgment-makers, arenot freeto dismissthe ruleof law as meaningless
verbiage,the jurisprudentialequivalentof motherhoodand apple pie,
evenif theywereinclinedto do so. Theywouldbe boundto construea
statuteso that it did not infringean existingconstitutionalprinciple,if
it were reasonablypossible to do so.12And the Lord Chancellor's
conductin relationto that principlewould no doubt be susceptible,in
principle,to judicialreview.So it is not perhapsprematureto attempt
to define what, in this country, today, is meant by the existing
constitutionalprincipleof the rule of law, recognisingof course- as a
servingjudgenecessarilymust- that any thoughtshe proffersmaywilt
or die in the light of futureadversarialargumentin a concretecase.
The core of the existingprincipleis, I suggest,that all personsand
authoritieswithin the state, whether public or private, should be
boundby and entitledto the benefitof laws publiclyand prospectively
promulgatedand publicly administeredin the courts. I doubt if
anyone would suggestthat this statement,even if accurateas one of
generalprinciple,could be appliedwithoutexceptionor qualification.
Thereare, for instance,some proceedingsin whichjusticecan only be
done if they are not in public.But it seemsto me that any derogation
calls for close considerationand clearjustification.And I think that
this formulation, of course owing much to Dicey, expresses the
fundamentaltruth propoundedby John Locke in 1690 that "Where-
ever law ends, tyranny begins",13and also that famously stated by
ThomasPainein 1776,"thatin AmericaTHE LAW IS KING. For as
in absolutegovernmentsthe King is law, so in free countriesthe law
oughtto be King;and thereoughtto be no other."'4But I do not think
the scope of the existing principle can be adequately understood
withoutexaminingits implications,whichmay be convenientlybroken
downinto a seriesof sub-rules.I haveidentifiedeightsuchrules,which
I shall briefly discuss. There is regrettablylittle to startle in any of
them.Moreingeniousmindscould doubtlesspropoundadditionaland
bettersub-rules,or economisewith fewer.
First, the law must be accessibleand so far as possibleintelligible,
clearand predictable.This seemsobvious:if everyoneis bound by the
12 See R. v.
Secretary of State for the Home Department, Ex p Pierson [1998] A.C. 539, 575, per Lord
Browne-Wilkinson; R. v. Secretary of State for the Home Department, Ex p Simms [2000] 2 A.C.
115, 131, per Lord Hoffmann.
13 John Locke, Second Treatise of Government(1690), Chap XVII, s.202 (Cambridge 1988), p. 400.
14 Thomas Paine, Common Sense (London 1994), p 279.

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70 The CambridgeLaw Journal [2007]

law they must be able withoutundue difficultyto find out what it is,
even if that means taking advice (as it usuallywill), and the answer
when given should be sufficientlyclear that a courseof action can be
based on it. There is English authority to this effect," and the
European Court of Human Rights has also put the point very
explicitly:
[T]helaw must be adequatelyaccessible:the citizenmust be able
to have an indicationthat is adequatein the circumstancesof
the legal rules applicable to a given case ... a norm cannot
be regardedas a "law" unless it is formulatedwith sufficient
precisionto enablethe citizento regulatehis conduct:he mustbe
able - if need be with appropriate advice - to foresee, to a degree
that is reasonablein the circumstances,the consequenceswhicha
given action may entail.'6
Obvious this point is, but not, I think, trivial. Given the legislative
hyperactivitywhich appearsto have become a permanentfeatureof
our governance- in 2004, some 3500 pages of primarylegislation;in
2003, nearly9000 pagesof statutoryinstruments- the sheervolumeof
currentlegislationraisesseriousproblemsof accessibility,despitethe
internet. And this is compounded by the British tradition of
parliamentarydraftsmanshipwhich, for all its technical virtuosity,
depends so heavily on cross-referenceand incorporation as on
occasionto baffle.
The accusingfingercannothoweverbe fairlypointedat legislators
alone: the length, complexity and sometimes prolixity of modern
common law judgments, particularly at the highest level, raise
problemsof their own. These problemscould, at least in theory,be
mitigated if the House of Lords were to give a single opinion, a
solution advocatedfrom time to time and raisedwith me by the late
Lord Brightman,very shortly before he died, with referenceto the
lengthy opinions of the House in R (Jackson) v. Attorney General.'7
This is a seriousargument,recentlyechoedby ChiefJusticeRobertsof
the United States in an address to the AmericanCollege of Trial
Lawyers,'"but not one whichI would in generalaccept,for verymuch
the reasons given by Lord Reid, addressingthe Society of Public
Teachersof Law, in 1971.19I agreewith LordReid that the qualityof
single Privy Counciljudgmentshas on the whole been inferiorfrom
the point of view of developingthe law to the morediverseopinionsof
15 Black-Clawson InternationalLtd v. Papierwerke Waldhof-AschaffenbergAG [1975] A.C. 591, 638;
Fothergill v. Monarch Airlines Ltd [1981] A.C. 251, 279.
16 Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245, 271, ?49.
17 [2005] UKHL 56; [2006] 1 A.C. 262.
18 At Grosvenor House, London, on 15 September 2006.
19 Lord Reid, "The Judge as Law-Maker" (1972) 12 Journal of the Society of Public Teachers of
Law (NS) 22, at pp, 28-29.

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C.L.J. The Rule of Law 71

the House. A single lapidary judgment buttressed by four brief

concurrencescan give rise to continuingproblemsof interpretation
which would have been at least reducedif the other membershad
summarised,howeverbriefly,their reasonsfor agreeing.And a well-
constitutedcommitteeof five or more,can bringto beara diversityof
professionalandjurisdictionalexperiencewhichis valuablein shaping
the law.
But I would add three important caveats. First, whatever the
diversityof opinion the judges should recognisea duty, not always
observed,to try to ensurethat thereis a clearmajorityratio. Without
that, no one can know what the law is until Parliamentor a latercase
lays down a clearrule. Secondly,and withoutchallengingthe value or
legitimacy of judicial developmentof the law, the sub-rule under
considerationdoes in my view preclude excessive innovation and
adventurismby the judges.20It is one thingto alterthe law's direction
of travel by a few degrees,quite another to set it off in a different
direction.The one is probablyforeseeableand predictable,something
a prudentpersonwould allow for, the other not. Thus one can agree
with Justice Heydon of the High Court of Australia that judicial
activism,takento extremes,can spellthe deathof the ruleof law.21But
thirdly,and importantly,all thesepointsapplywith redoubledforcein
the criminalfield. The torrentof criminallegislationin recentyears
has posedveryrealproblemsof assimilation.Not all of this legislation
is readily intelligible.22Whether derived from statute or judicial
opinion the law must be stated in terms which a judge can without
unduedifficultyexplainto a jury or an unqualifiedclerkto a benchof
lay justices. And the judges may not develop the law to create new
offencesor widen existingoffencesso as to make punishableconduct
of a type hithertonot subjectto punishment,23 for that would infringe
the fundamentalprinciplethat a person should not be criminally
punishablefor an act not proscribedas criminalwhen the act was
done.24
20 The
distinction between a legitimate development of the law and an objectionable departure from
settled principle may of course provoke sharp differences of opinion: see, for example, Kleinwort
Benson Ltd v. Lincoln City Council [1999] 2 A.C. 349.
21 J. D.
Heydon, "Judicial Activism and the Death of the Rule of Law", Quadrant, January-
February 2003.
22 The Criminal Justice Act 2003 is a prime example. In R. v. Lang [2005] EWCA Crim 2864, [2006]
1 W.L.R. 2509, paras. [16] and [153] Rose L.J. described the provisions of the Act as
"labyrinthine" and "astonishingly complex". In R.. (Crown Prosecution Service) v. South East
Surrey YouthCourt [2005] EWHC 2929 (Admin), [2006] 1 W.L.R. 2543, para. [14], he spoke of the
"deeply confusing" provisions of the Act, and added: "We find little comfort or assistance in the
historic canons of construction for determining the will of Parliament which were fashioned in a
more leisurely age and at a time when elegance and clarity of thought and language were to be
found in legislation as a matter of course rather than exception".
23 R. v. Withers[1975] A.C. 842 at 854, 860, 863, 867, 877; R. v. Rimmington[2005] UKHL 63, [2006]
1 A.C. 459, para. [33].
24 Now enshrined in article 7 of the European Convention on Human Rights.

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72 The CambridgeLaw Journal [2007]

My second sub-ruleis that questions of legal right and liability

should ordinarilybe resolvedby applicationof the law and not the
exerciseof discretion.Most moderncommentatorswouldnot shareto
the full Dicey's hostility to the exerciseof official discretions.In the
immigrationfield, for example,judges have routinelyand gratefully
invitedthe Secretaryof Stateto exercisehis discretionto grantleaveto
enter or remain to applicantswho do not meet the tests for entry
laid down in the immigrationrules but whose personal history or
circumstancesdemand sympatheticconsideration.But the essential
truthof Dicey'sinsightstands.The broaderand moreloosely-textured
a discretionis, whetherconferredon an officialor a judge, the greater
the scope for subjectivityand hence for arbitrariness,which is the
antithesisof the rule of law.25This sub-rulerequiresthat a discretion
should ordinarilybe narrowly defined and its exercise capable of
reasonedjustification.These are requirementswhich our law, in my
opinion, almost always satisfies,becausediscretionimportsa choice
betweentwo possibledecisionsand orders,and usuallythe scope for
choice is very restricted.
Therecan, first of all, be no discretionas to the facts on which a
decision-maker,official or judicial, proceeds.An assessmentof the
factsmay of coursebe necessaryand will dependon the effectmadeby
the evidenceon the mindof the decision-maker.The assessmentmade
may be corrector it may not, but if the evidenceleads the decision-
maker to one conclusionhe has no discretionto reach another,any
more than a historianhas a discretionto concludethat King John did
not execute Magna Carta at Runnymedein June 1215 when all the
evidence shows that he did. Similarly,most so-called discretions
depend on the making of a prior judgment which, once made,
effectivelydeterminesthe course to be followed, and leaves no room
for choice. Even the least constrainedof judicialdiscretions- that as
to the awardof costs - is governedby principlesand practice.26 I take
threeexamples,two judicialand one official.
The grant of a civil injunction,it is always said, is discretionary.
But if a clearviolationof legal rightis shown,and thereis a clearrisk
of repetition injurious to the victim for which damages will not
compensate,and thereis no undertakingby the lawbreakerto desist,
the trial judge ordinarilyhas no choice. His discretion can only,
usually, be exercisedone way. A second, very familiar,example is
25 "To remit
the maintenance of constitutional right to the region of judicial discretion is to shift the
foundations of freedom from the rock to the sand": Scott v. Scott [1913] A.C. 417, 477, per Lord
Shaw of Dunfermline.
26 In sentencing
there is in some cases a genuine choice as to the mode of punishment, but in many
cases the only real choice is as to the measure of punishment, and even then the choice is more
limited than sometimes supposed, as the recent furore over the sentencing of Craig Sweeney
graphically illustrated.

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C.L.J. The Rule of Law 73

found in section 78(1) of the Police and CriminalEvidenceAct 1984,

which provides:
In any proceedingsthe court may refuse to allow evidence on
whichthe prosecutionproposesto rely to be givenif it appearsto
the court that, having regardto all the circumstances,including
the circumstancesin which the evidence was obtained, the
admissionof the evidencewould have such an adverseeffect on
the fairnessof the proceedingsthat the court ought not to admit
it.
The use of the word "may"is reliedon as conferringa discretion.But
what the subsectiondoes, I suggest,is to requirean exerciseof judg-
ment, which may be difficultto make but which will determinethe
outcome:if the statutoryconditionis judgedto be satisfied,the judge
mustrefuseto allow the evidenceto be given;if it is not, the subsection
does not authorisethe judge to exclude the evidence.For my third
illustrativeexample I returnto the immigrationfield. If an official
were to grant leave to enter or remainto a personwho did not meet
the tests laid down in the immigrationrules,but whose case presented
no exceptional features whatever suggesting the need for special
treatment,such decision would be incapableof rationaljustification
and could not be defendedas an exerciseof discretion.There is in
truthno suchthingas an unfettereddiscretion,judicialor official,and
that is what the rule of law requires.
My thirdsub-ruleis that the laws of the land shouldapplyequally
to all, save to the extent that objectivedifferencesjustify differentia-
tion. I doubt if this would strike a modern audience as doubtful.
While some special legislativeprovision can properly be made for
some categoriesof people such as children,prisonersand the mentally
ill, based on the peculiarcharacteristicsof such categories,we would
regard legislation directed to those with red hair (to adopt
WarringtonL.J.'s long-livedexample)27 as incompatiblewith the rule
of law. Even more obviously incompatiblewould be the statute 22
Henry 8 cap 9 which convicted Richard Rose, the Bishop of
Rochester'scook, who had not been tried, of high treason:he had
put poison into the porridgein the bishop'skitchen,and the statute
orderedthat he be boiled to death without having any advantageof
his clergy. Other poisoners were to be similarly treated, but the
statute was primarilyaimed at him. In much more recent times our
law not only toleratedbut imposeddisabilitiesnot rationallybasedon
their religiousbeliefs on Roman Catholics,Dissentersand Jews, and
disabilitiesnot rationallyconnectedwith any aspect of their gender
on women.
27 Short v. Poole
Corporation[1926] Ch. 66, 91.

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74 The CambridgeLaw Journal [2007]

It would be comfortingto treat this sub-ruleas of antiquarian

interest only. But it would be unrealistic,as the treatmentof non-
nationalshere and elsewherereveals.The position of a non-national
with no right of abode in this countrydiffersfrom that of a national
with a rightof abodein the obviousand importantrespectthat the one
is subject to removal and the other is not. That is the crucial
distinction,and differentiationrelevantto it is unobjectionableand
indeedinevitable.But it does not warrantdifferentiationirrelevantto
that distinction,as Lord Scarmanmade clear in R. v. Secretaryof
State for the Home Department, Ex p Khawaja:
Habeascorpusprotectionis often expressedas limitedto "British
subjects".Is it reallylimitedto Britishnationals?Sufficeit to say
that the case law has given an emphatic"no" to the question.
Everypersonwithinthejurisdictionenjoysthe equalprotectionof
our laws. There is no distinctionbetweenBritishnationals and
others. He who is subject to English law is entitled to its
protection.This principlehas been in the law at least since Lord
Mansfieldfreed "the black" in Sommersett'sCase (1772) 20 St.
Tr. 1. Thereis nothinghere to encouragein the case of aliens or
non-patrials the implication of words excluding the judicial
review our law normally accords to those whose liberty is
infringed.28
This messageseemsclearenough.But it did not deterParliamentfrom
providing,in Part 4 of the Anti-terrorism,Crime and SecurityAct
2001, for the indefinite detention without charge or trial of non-
nationals suspectedof internationalterrorismwhile exemptingfrom
that liability nationalswho were judged qualitativelyto presentthe
same threat.29The recordof the United States in this respectis not
betterthan our own, and arguablyworse. As an Americanacademic
authorhas written,
Virtuallyeverysignificantgovernmentsecurityinitiativeimplicat-
ing civil liberties- includingpenalizingspeech, ethnic profiling,
guilt by association,the use of administrativemeasuresto avoid
the safeguardsof the criminalprocess,and preventivedetention-
has originatedin a measuretargetedat noncitizens.30
Thereis, I think,profoundtruthin the observationof JusticeJackson
in the SupremeCourt of the United States in 1949:
28 [1984] A.C. 74, 111-112.
29 See A v. Secretary of State
for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68. The
Government considered that it would be "a very grave step" to detain British citizens in a similar
way and that "such draconian powers would be difficult to justify". A joint parliamentary
committee observed that the Government's explanation appeared to suggest "that it regards the
liberty interests of foreign nationals as less worthy of protection than exactly the same interests of
UK nationals ..." Ibid, paras. [64]-[65].
30 David Cole, Enemy Aliens (New York 2003), p 85. In this book the author considers
discrimination against non-citizens in some detail.

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C.L.J. The Rule of Law 75

I regardit as a salutarydoctrinethat cities,statesand the Federal

Governmentmust exercisetheirpowersso as not to discriminate
between their inhabitantsexcept upon some reasonablediffer-
entiationfairlyrelatedto the objectof regulation.This equalityis
not merelyabstractjustice.The framersof the Constitutionknew,
and we should not forget today, that there is no more effective
practical guaranty against arbitraryand unreasonablegovern-
ment than to requirethat the principlesof law which officials
would impose upon a minority must be imposed generally.
Conversely, nothing opens the door to arbitrary action so
effectivelyas to allow those officials to pick and choose only a
few to whom they will apply legislationand thus to escape the
political retributionthat might be visited upon them if larger
numberswere affected. Courts can take no better measure to
assurethat laws will be just than to requirethat laws be equal in
operation.3'
Sixty years on we may say that this is not merelya salutarydoctrine
but a pillarof the rule of law itself.
I turn to my fourth sub-rule,which is that the law must afford
adequateprotectionof fundamentalhumanrights.This would not be
universallyacceptedas embracedwithin the rule of law. Dicey, it has
been argued, gave no such substantivecontent to his rule of law
concept.32ProfessorRaz has written:
A non-democraticlegal system, based on the denial of human
rights, on extensive poverty, on racial segregation, sexual
inequalities,and racial persecutionmay, in principle,conform
to the requirementsof the ruleof law betterthan any of the legal
systems of the more enlightened Western democracies ... It will be
an immeasurablyworse legal system, but it will excel in one
respect: in its conformity to the rule of law ... The law may ...
instituteslaverywithoutviolatingthe rule of law.33
On the other hand, as GeoffreyMarshallhas pointedout, chaptersV
to XII of Dicey's Introductionto the Law of the Constitution,34in which
he discusseswhat would now be called civil liberties,appearwithin
part II of the book entitled "The Rule of Law", and, as Marshall
observes, "the reader could be forgiven for thinking that Dicey
intendedthem to form part of an account of what the rule of law
meant for Englishmen.""35The preambleto the UniversalDeclaration
of HumanRights 1948recitesthat "it is essential,if man is not to be
compelled to have recourse, as a last resort, to rebellion against
31 Railway Express
Agency Inc v. New York 336 US 106, 112-113 (1949).
32 Paul Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical
Framework" [1997] P.L. 467, 473-474.
33 J. Raz, "The Rule of Law and its Virtue", in The Authority of Law (Oxford 1979), at pp. 211, 221.
34 A V Dicey, An Introduction to the Study of the Law of the Constitution.
35 Geoffrey Marshall, "The Constitution: Its Theory and Interpretation", in Vernon Bogdanor
(ed.), The British Constitution in the Twentieth Century (Oxford 2003), p. 58.

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76 The CambridgeLaw Journal [2007]

tyrannyand oppression,that humanrightsshouldbe protectedby the

rule of law." The EuropeanCourt of Human Rights has referredto
"thenotion of the ruleof law fromwhichthe wholeConventiondraws
its inspiration."36The EuropeanCommissionhas consistentlytreated
democratisation, rule of law, respectfor humanrights and good
the
governanceas inseparablyinterlinked.37
While, therefore,I recognisethe logical force of ProfessorRaz's
contention, I would not myself accept it. A state which savagely
repressedor persecutedsectionsof its peoplecould not in my view be
regardedas observingthe rule of law, even if the transportof the
persecutedminority to the concentrationcamp or the compulsory
exposureof femalechildrenon the mountainsidewere the subjectof
detailed laws duly enacted and scrupulouslyobserved. So to hold
would,I think,be to stripthe existingconstitutionalprincipleaffirmed
by section 1 of the 2005 Act of much of its virtue and infringethe
fundamentalcompactwhich, as I shall suggestat the end, underpins
the rule of law. But this is a difficult area, for I would agree with
ProfessorJowellthat the rule of law "does not, for example,address
the full rangeof freedomsprotectedby bills of rightsin othercountries
or in internationalinstruments of human rights, or those now
protectedby our recentlyenacted Human Rights Act 1998, as set
out in the EuropeanConventionon HumanRights (such as the right
not to suffertorture,or the rightto freedomof expressionor rightsof
privacy or sexual freedom).""38 There is not, after all, a standardof
humanrightsuniversallyagreedeven amongcivilisednations.We may
regretthe United States'failureto ratify the UN Conventionon the
Rights of the Child 1989, which forbids the imposition of capital
punishmentfor offences committedby persons under 18,39 and the
Supreme Court's decision upholding the imposition of capital
punishment for a murder committed at the age of 16 /2,40 but accession
to any internationalconventionis a matter of national choice, and
differentcountriestake differentviews on the moralityas well as the
efficacyof the death penalty.It is open to a state to acknowledge,as
some have,41that a penalty is cruel and unusual treatment or
punishmentwithin the meaningof its Constitution,and nonetheless
to assertthat it is authorisedby that Constitutionas lawful.Thereis,
I would accept, an element of vaguenessabout the content of this
36 Engel v. The Netherlands (No
1) (1976) 1 E.H.R.R. 647, 672, para. [69]. And see Golderv. United
Kingdom (1975) 1 E.H.R.R. 524, 589, para [34].
37 See, for example, Commission Communication to the Council and Parliament, 12 March 1998,
COM (98) 146.
38 Jeffrey Jowell "The Rule of Law Today", in Jeffrey Jowell and Dawn Oliver (eds.), The Changing
Constitution, 5th edn (Oxford 2004), p 23.
39 Article 37(a).
40 Stanford v. Kentucky 492 US 361 (1989).
41 Matthew v. State of Trinidadand
Tobago [2004] UKPC 33, [2005] 1 A.C. 433, para [36].

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C.L.J. The Rule of Law 77

sub-rule,since the outer edges of fundamentalhumanrights are not

clear-cut.But withina givenstate therewill ordinarilybe a measureof
agreementon where the lines are to be drawn,and in the last resort
(subjectin this countryto statute)the courtsare thereto draw them.
The rule of law must, surely,requirelegal protectionof such human
rightsas, within that society, are seen as fundamental.
My fifth sub-ruleis that means must be providedfor resolving,
without prohibitivecost or inordinatedelay, bona fide civil disputes
whichthe partiesthemselvesareunableto resolve.It would seemto be
an obvious corollaryof the principlethat everyoneis bound by and
entitledto the benefitof the law that peopleshouldbe able, in the last
resort, to go to court to have their rights and liabilitiesdetermined.
This is not a rule directed against arbitrationand more informal
means of dispute resolution,all of which, properlyresortedto and
fairlyconducted,have a supremelyimportantcontributionto maketo
the rule of law. Nor is it a rule requiringevery claim or defence,
howeverspuriousand lackingin merit,to be guaranteedfull accessto
the process of the law. What it does is to recognise the right of
unimpededaccess to a court as a basic right, protectedby our own
domesticlaw,42and in my view comprisedwithin the principleof the
ruleof law. If that is accepted,then the questionmustbe faced:how is
the poor man or woman to be enabledto assert his or her rights at
law?Assuming,as I would certainlywish to do, the existenceof a free
and independentlegal profession,the obtainingof legal advice and
representationis bound to have a cost, and sincelegal servicesabsorb
much professionaltime they are inevitablyexpensive.The old gibe
about the Ritz Hotel is one that cannot be ignored.
For many years, of course, this problemwas addressedthrough
the civil Legal Aid scheme establishedin 1948, a bold, imaginative
and somewhat under-celebratedreform of the Attlee post-war
government.Although subject to well-known defects, the scheme
did bring legal redresswithin reach of the less well-off. But, as we
know, the cost of the scheme rose exponentially,and this led to its
curtailment.Whetherconditionalfees, variouspro bono schemesand
small claims procedureshave filled the gap left by this curtailmentI
do not myselfknow. Perhapsthey have, and advice and help are still
availableto those of modest meanswho deserveit. But I have a fear
that tabloid tales of practitionersmilkingthe criminallegal aid fund
of millions, and more generaldistrustof lawyersand their rewards,
may have enabled a valuable guaranteeof social justice to wither
unlamented.
42 Raymond v. Honey [1983] 1 A.C.
1, 12-13; R. v. Secretary of State for the Home Department, Ex p
Leech [1994] Q.B. 198, 210; R. v. Lord Chancellor, Ex p Witham [1998] Q.B. 575, 585-586.

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78 The CambridgeLaw Journal [2007]

Lurkingin the backgroundis another point which, at a certain

point, must concernadherentsof the rule of law. SuccessiveBritish
governmentshaveinsistedthat the civil courts,judicialsalariesusually
aside,shouldbe self-financing:the cost of runningthe courtsshouldbe
coveredby fees recoveredfromlitigants.Thejudgesfor theirparthave
accepted that those using the courts may generallybe called on to
contributespecificallyto the cost of the service- resort to the law
being less universalthan that to the doctor- but have never,I think,
acceptedthe full recoveryprinciple,regardingthe provisionof courts
as one of the essentialfunctionsof a liberaldemocraticstate.43The
dangeragainis that the cost of obtainingredressmay lead to its being
deniedto some at least of those who need it. The rule of law plainly
requiresthat legal redressshouldbe an affordablecommodity.That it
should also be availablewithout excessivedelay is so obvious as to
make any elaborationunnecessary.
My sixth sub-ruleexpresseswhat manywould,with reason,regard
as the core of the rule of law principle.It is that ministersand public
officers at all levels must exercise the powers conferred on them
reasonably,in good faith, for the purposefor which the powerswere
conferredand withoutexceedingthe limits of such powers.This sub-
rule reflects the well-establishedand familiar grounds of judicial
review.4 It is indeed fundamental.For although the citizens of a
democracyempower their representativeinstitutionsto make laws
which, duly made, bind all to whom they apply, and it falls to the
executive,the governmentof the day, to carrythose laws into effect,
nothing ordinarilyauthorisesthe executiveto act otherwisethan in
strictaccordancewith those laws. (I say "ordinarily"to acknowledge
the survivalof a shrinkingbody of unreviewableprerogativepowers).
The historicrole of the courtshas of coursebeen to check excessesof
executivepower, a role greatlyexpandedin recent years due to the
increasedcomplexityof governmentand the greaterwillingnessof the
public to challengegovernmental(in the broadest sense) decisions.
Even under our constitutionthe separationof powers is crucial in
guaranteeingthe integrityof the courts'performanceof this role.
The British Government,through one entity or another,is very
frequently involved in litigation. It is usually successful, but not
invariablyso. When unsuccessfulit is displeased,being driven like
43 They are not alone in holding this view: see Michael Beloff QC "Paying Judges: Why, Who,
Whom, How Much?" [2006] Denning Law Journall, 21; Shimon Shetreet, Justice in Israel: A
Study of the Israeli Judiciary (Dordrecht 1994), p 143. These authors are addressing the question
of judicial salaries. But their conclusion that the state should pay judges rests on the view that
"the legal system provides a vital public service".
44 See Jeffrey Jowell, "The Rule of Law Today", in Jowell and Oliver, The Changing Constitution
(above note 38), pp 20-21. Dicey and a host of later authorities might have been surprised to learn
from Mr Blunkett that "Judicial review is a modern invention. It has been substantially in being
from the early 1980s ...". David Blunkett, The Blunkett Tapes (London 2006), p 607.

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C.L.J. The Rule of Law 79

everyotherlitigantby a beliefin the rightnessof its cause but also no

doubt by a belief that the public interest is best served by its
succeeding.In the past the conventionwas that ministers,however
critical of a judicial decision, and exercisingtheir right to appeal
againstit or, in the last resort,legislateto reverseit retrospectively,45
forborefrom public disparagementof it. This conventionappearsto
have worn a little thin in recenttimes,46as I think unfortunately,since
if ministersmake what are understoodto be publicattackson judges,
the judges may be provokedto make similarcriticismsof ministers,
and the rule of law is not, in my view, well servedby public dispute
betweentwo arms of the state. Some sectionsof the press,with their
gift for understatement,have spoken of open war between the
governmentand the judiciary.This is not in my view an accurate
analysis. But there is an inevitable,and in my view entirelyproper,
tension betweenthe two. There are countriesin the world where all
judicial decisionsfind favour with the government,but they are not
placeswhereone would wish to live. Such tensionexists even in quiet
times. But it is greater at times of perceivedthreats to national
security,since governmentsunderstandablygo to the very limit of
what they believeto be theirlawfulpowersto protectthe public,and
the duty of the judges to requirethat they go no furthermust be
performedif the rule of law is to be observed.This is a fraughtarea,
since historysuggeststhat in times of crisisgovernmentshave tended
to overreactand the courtsto provesomewhatineffectivewatchdogs.47
In our countryand in the United States,decisionshave been made of
whichneithercountrycan be proud.48The cautionarywordsof Justice
WilliamBrennanof the United States SupremeCourtin 1987remain
pertinent:
Thereis considerablyless to be proudabout, and a good deal to
be embarrassedabout, when one reflectson the shabbytreatment
civil libertieshave receivedin the United States duringtimes of
45 As when, in the War Damage Act 1965, Parliament reversed the decision of the House of Lords in
Burmah Oil Co Ltd v. Lord Advocate [1965] A.C. 75.
46 The best known example relates to Sullivan J.'s decision to quash the Secretary of State's refusal
of discretionary leave to remain to a number of Afghans previously acquitted on charges of
hijacking aircraft: R. (on the application of S) v. Secretary of State for the Home Department
[2006] EWHC 1111 (Admin). The judge found it difficult to conceive of a clearer case of
"conspicuous unfairness amounting to an abuse of power". Commenting on the decision (as
reported by the BBC on 10 May 2006), the Prime Minister said: "it's not an abuse of justice for us
to order their deportation, it's an abuse of common sense frankly to be in a position where we
can't do this". The Court of Appeal dismissed an appeal by the Secretary of State, commending
the judge for "an impeccable judgment": [2006] EWCA Civ 1157, para. [50].
47 See Tom Bingham, "Personal Freedom and the Dilemma of Democracies" (2003) 52 I.C.L.Q.
841.
48 In this country one would instance R. v. Halliday [1916] 1 K.B. 738, [1917] A.C. 260 and
Liversidgev. Anderson [1942] A.C. 206; in the United States, notably, Korematsuv. United States
323 US 214 (1944), a decision which Scalia J. has put on a par with that in Dred Scott, thereby
assigning it to the lowest circle in Hades. See David Cole, Enemy Aliens (New York 2003), pp 99,
261 n. 42.

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80 The CambridgeLaw Journal [2007]

war and perceived threats to national security ... After each

perceivedsecuritycrisisended,the United Stateshas remorsefully
realizedthat the abrogationof civil libertieswas unnecessary.But
it has proven unable to preventitself from repeatingthe error
when the next crisiscame along.49
So to my seventh and penultimate sub-rule:that adjudicative
proceduresprovidedby the state shouldbe fair.The ruleof law would
seem to requireno less. The general argumentsin favour of open
hearingsare familiar,summedup on this side of the Atlanticby the
dictum that justice must manifestlyand undoubtedlybe seen to be
done"5 and on the American side by the observation that
"Democraciesdie behindclosed doors.""
Applicationof this sub-ruleto ordinarycivil processesis largely
unproblematical,once it is rememberedthat not all decisions are
purelyjudicial.52As the Chief Justice of Australiahas pointed out,
"the rule of law does not mean rule by lawyers."53
There is more scope for difficultywhere a person faces adverse
consequencesas a resultof what he is thoughtor said to have done or
not done, whetherin the context of a formal criminalcharge or in
other contextssuch as deportation,precautionarydetention,recallto
prison or refusal of parole. What in such contexts does fairness
ordinarilyrequire?First and foremost, I suggest, that decisionsare
made by adjudicatorswho, howeverdescribed,are independentand
impartial:independentin the sense that they are free to decideon the
legal and factualmeritsof a case as they see it, free of any extraneous
influenceor pressure,and impartialin the sensethat they are, so far as
humanlypossible,open-minded,unbiasedby any personalinterestor
partisanallegianceof any kind. In addition, certaincore principles
have come to be accepted:that a mattershouldnot be finallydecided
against any party until he has had an adequateopportunityto be
heard; that a person potentially subject to any liability or penalty
should be adequatelyinformedof what is said against him; that the
accusershould make adequatedisclosureof materialhelpful to the
other party or damagingto itself;that wherethe interestsof a party
cannot be adequatelyprotectedwithout the benefit of professional
help whichthe partycannot afford,publicassistanceshouldso far as
practicablebe afforded;that a partyaccusedshouldhave an adequate
49 William J. Brennan Jr., "The Quest to Develop a Jurisprudence of Civil Liberties in Times of
Security Crises" (1988) 18 Israel Yearbookof Human Rights 11.
5o R. v. Sussex Justices, Ex p McCarthy [1924] 1 K.B. 256, 259.
1 Detroit Free Press v. Ashcroft 303 F 3d 681, 683 (6thCir. 2002).
52 See, for example, R. (Alconbury Developments Ltd) v. Secretary of State for the Environment,
Transportand the Regions [2001] UKHL 23, [2003] 2 A.C. 295; Runa Begum v. Tower Hamlets
London Borough Council [2003] UKHL 5, [2003] 2 A.C. 430.
53 Murray Gleeson, "Courts and the Rule of Law", Lecture at Melbourne University, 7 November
2001, http://www.hcourt.gov.au/speeches/dj/dj-ruleoflaw.htm

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C.L.J. The Rule of Law 81

opportunityto preparehis answerto whatis saidagainsthim;and that

the innocenceof a defendantchargedwith criminalconductshouldbe
presumeduntil guilt is proved.
In the strictlycriminalcontext,two of theseprinciplesin particular
have raised questions. The first concerns disclosure, since the
prosecutormay be in possession of materialwhich he is for public
interestreasonsunwillingor very reluctantto discloseto the defence.
This problem, when it arises, calls for the exerciseof very careful
judgmentby the trialjudge. But as the law now stands,materialneed
not be disclosedif in no way helpfulto the defence;if helpfulto the
point where the defence would be significantlyprejudicedby non-
disclosure, the prosecutor must either disclose or abandon the
prosecution.54Questions have also arisen concerning statutory
offences defined so as to place a reverseburden on the defendant.
Theseare not in themselvesobjectionable,but may be so if the burden
is one which a defendant,even if innocent,may in practicebe unable
to discharge."5 I do not thinkthesesolutions,even if not ideal,infringe
the rule of law.
More disturbingare the growing categoriesof case outside the
strictlycriminalspherein which Parliamenthas providedthat the full
case against a person, put before the adjudicatoras a basis for
decision, should not be disclosed to that person or to any legal
representativeauthorised by that person to representhim.56Any
processwhichdeniesknowledgeto a personeffectively,if not actually,
accusedof what is relied on againsthim, and thus denies him a fair
opportunity to rebut it, must arouse acute disquiet. But these
categoriesreflect the undoubteddangerof disclosingsome kinds of
highlysensitiveinformation,and they have been clearlyidentifiedand
regulated by Parliament, which has judged the departure to be
necessary and attempted to limit its extent.57Resort to a similar
procedureby the ParoleBoardin the absenceof any expressstatutory
authorityprovoked a division of opinion in the House of Lords: a
majority upheld the practice; a minority (which included myself)
stronglydissented."58 Therethe matterrests.All would probablyagree
that this is difficultterrain.
My eighthand last sub-ruleis that the existingprincipleof the rule
of law requires compliance by the state with its obligations in
internationallaw, the law which whether deriving from treaty or
54 R. v. H [2004] UKHL 3, [2004] 2 A.C. 134.
55 Sheldrake v. Director of Public Prosecutions, Attorney General's Reference (No 4 of 2002) [2004]
UKHL 43, [2005] 1 A.C. 264.
56 See R. (Roberts) v. Parole Board [2005] UKHL 45, [2005] 2 A.C. 738, paras. [26]-[30].
57 I omit as immaterial the instance discussed in R. (Roberts) v. Parole Board 2005] UKHL 45,
[2005] 2 A.C. 738, para [29].
58 R. (Roberts) v. Parole Board, 2005] UKHL 45, [2005] 2 A.C. 738.

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82 The CambridgeLaw Journal [2007]

internationalcustomand practicegovernsthe conductof nations.I do

not thinkthis propositionis contentious.Addressinga joint sessionof
Congressin September1990 after the Iraqi invasion of Kuwait, the
first PresidentBush said that a new world was emerging,"a world
wherethe ruleof law supplantsthe ruleof thejungle.A worldin which
nations recognizethe sharedresponsibilityfor freedomandjustice.A
world where the strong respect the rights of the weak ... America and
the world must support the rule of law. And we will."59President
GeorgeW Bush,in his Stateof the Union Addressof 29 January2002,
speakingof the international,not the domestic,scene,echoedthe same
sentiment:"ButAmericawill alwaysstandfirmfor the non-negotiable
demandsof humandignity;the rule of law;limitson the powerof the
state; respectfor women;privateproperty;free speech;equaljustice;
and religioustolerance."Britishstatesmentoday would, I think,share
this belief.
It was not alwaysso. On the outbreakof war in 1914the German
Chancellortold the Reichstag:
Gentlemen,we are in a state of necessity,and necessityknows no
law. Our troops have occupied Luxembourgand perhaps are
alreadyon Belgiansoil. That is contraryto internationallaw. The
wrong we thus commit we will endeavourto repairdirectlyour
militaryaim is achieved.60
Defendingthe Britishblockadeof Germany,known to be of doubtful
legality,Mr Asquithwas not deterredby legal considerations:
In dealing with an opponent who has openly repudiatedall
the restraints,both of law and of humanity,we are not going
to allow our efforts to be strangledin a network of juridical
niceties.61
I shallnot for obviousreasonstouchon the vexedquestionwhether
Britain's involvement in the 2003 war on Iraq was in breach of
internationallaw and thus, if this sub-ruleis sound, of the ruleof law.
But a revealingcomparisonmay be made between the procedures
followedin 2003 and those followedat the timeof the Suezinvasionof
1956,and the comparisondoes suggestthat overthatperiodthe ruleof
law has indeedgainedgroundin this countryand the law of thejungle
lost it. First, Sir Anthony Eden, Prime Ministerin 1956, appearsto
have treated legal considerationsas at best peripheral. Echoing
Asquith,but with much less justification,he said:

59 President's Address to Joint Session of Congress, New York Times, 12 September 1990, at A 20.
60 Quoted in
G. P. Gooch, Germany(New York 1925), pp. 112-113. And see Patrick Devlin, Too
Proud to Fight (Oxford 1974), p 142.
61 HC
Hansard, 1 March 1915, col. 600.

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C.L.J. The Rule of Law 83

We should not allow ourselves to become involved in legal

quibbles about the rights of the Egyptian Government to
nationalisewhat is technicallyan Egyptiancompany...62
At a later stage of the crisis,the primeministerspecificallyinstructed
that Sir Gerald Fitzmaurice,the very distinguishedLegal Adviserto
the ForeignOffice,who had stronglyand consistentlyadvisedthat the
Britishactionwas unlawful,shouldnot be informedof developments:
"Fitz is the last person I want consulted,"he said. "The lawyersare
alwaysagainstour doing anything.For God's sake, keep them out of
So far as I know, no similarsentiments
it. This is a politicalaffair.""63
were ever expressedby Mr Blair.
Secondly,and althoughin 1956as in 2003it was the functionof the
Law Officersto tenderlegal adviceto the Government,in 1956 they
were never formally consulted before the ultimatumto Egypt was
delivered.64 Instead,the Governmentreliedon the adviceof the Lord
Chancellor,who in turn reliedon an ambiguousfootnote in an article
by Professor Waldock, on which, however, Waldock was never
approached.65 In 2003, so far as is known,the LordChancellordid not
give legal opinionon the lawfulnessof war but the AttorneyGeneral
a
made a briefpublicstatementon the eve of war, and some two years
later his more detailed earlier opinion reached the public domain.
Thereseemsto me to be room to questionwhetherthe ordinaryrules
of client privilege,appropriateenoughin other circumstances,should
apply to a law officer's opinion on the lawfulnessof war: it is not
unrealisticin my view to regardthe public, those who are to fight
and perhaps die, rather than the government,as the client. If the
governmentis sued for damagesin negligencefor (say) injuriescaused
by an army lorry or a mishapin a militaryhospital,I see no reason
why the ordinary rules of client professionalprivilege should not
apply.The government'spositionas a defendantwould be greatlyand
unfairlyweakenedif this werenot so. An opinionon the lawfulnessof
war, the ultimate exerciseof sovereignpower, involving the whole
people, seems to me to be quite different.And the case for full,
contemporaneous,disclosure seems to me even stronger when the
AttorneyGeneralis a peer,not susceptibleto directquestioningin the
electedchamber.But this is not an acceptedview, and we know that in
2003 the AttorneyGeneral'sadvicesupportedthe proposedaction.
62 Quoted in Geoffrey
Marston, "Armed Intervention in the 1956 Suez Canal Crisis: The Legal
Advice tendered to the British Government" (1988) 37 I.C.L.Q. 773, 777.
63 Marston, op. cit., p 798.
64 Marston, op. cit., p 804.
65 C. H. M. Waldock, "The Regulation of the Use of Force by Individual States in International
Law" (1952) 81 Hague Rec. 451, 497, 503. See also Marston, op. cit., pp 792-793, 796. It appears
that Waldock, if consulted, would not have accepted the interpretation placed on his article:
Marston, op. cit., p 806.

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84 The CambridgeLaw Journal [2007]

Thirdly,and surprisinglywith memoriesof Nurembergrelatively

fresh, it does not appearthat the servicechiefs in 1956called for any
assurancethat the invasionwouldbe lawful.In 2003, as is well known,
they did.
The fourth distinctionis the most strikingof all. Although not
formallyconsultedon the lawfulnessof the proposedinterventionin
1956,the Law Officerslearnedwhat was in the air and expressedthe
clear view that it could not be justifiedin law.66But despitethis they
supportedthe Government'saction.Writingto the PrimeMinisteron
7 November1956,the AttorneyGeneral,Sir ReginaldManningham-
Buller QC, said "... I support and have supported the Government's
actionsthoughI cannotdo so on legalgrounds."67 Aftera meetingthe
next day he wrote again, on behalf of himself and the Solicitor
General,Sir HarryHylton-FosterQC: "AlthoughI supportwhat we
have done and have said so publicly,we cannot, as you know, agree
with the statementsmade on behalf of the Governmentthat we were
legallyentitledso to act."68Sir Harryalso wroteto the PrimeMinister
saying: "Reflectionhas convinced me that I was wrong to allow
legalisticconsiderationsto weigh so heavilywith me."69It would no
doubt be naiveto supposethat even today majordemocraticstatesdo
not on occasion resortto legal casuistryto justify the use of force in
doubtful circumstances.But I do not think that, save perhaps in
extremis,the governmentof such a state would embarkon a course
which it acknowledgedto be blatantly unlawful, or that lawyers
advisingthe governmentof sucha stateat a seniorlevelwouldpublicly
supportaction for which they could find no legaljustification.To do
eitherwould pay scant respectto the existingconstitutionalprinciple
of the rule of law.
There has been much debate whether the rule of law can exist
withoutdemocracy.Somehavearguedthat it can.7"But it seemsto me
that the rule of law does depend on an unspoken but fundamental
bargainbetweenthe individualand the state, the governedand the
governor,by whichboth sacrificea measureof the freedomand power
which they would otherwiseenjoy. The individualliving in society
implicitlyacceptsthat he or she cannotexercisethe unbridledfreedom
enjoyedby Adam in the Gardenof Eden, beforethe creationof Eve,
and acceptsthe constraintsimposedby laws properlymadebecauseof
the benefits which, on balance, they confer. The state for its part
acceptsthat it may not do, at home or abroad,all that it has the power
66
Marston, op. cit., pp 803-805.
67
Marston, op. cit., p 810.
68 Ibid.
69
Marston, op. cit., p 811.
70
Tamanaha, above note 9, p 37.

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C.L.J. TheRule of Law 85

to do but only that which laws bindingupon it authoriseit to do. If

correct,this conclusionis reassuringto all of us who, in any capacity,
devote our professionallives to the serviceof the law. For it means
that we are not, as we are sometimesseen, merecustodiansof a body
of aridprescriptiverulesbut are, with others,71the guardiansof an all
but sacredflame which animatesand enlightensthe society in which
we live.72

71 Lord
Goldsmith is of course right that responsibility for maintaining the rule of law rests on
Parliament as well as the courts: see his lecture referred to in note 1 above, pp 10, 19.
72 I am greatly indebted to Richard Moules and Matthew Slater, successively my judicial assistants,
for their help in preparing this lecture, and I am as always indebted to Diana Procter.

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