Opposing views – Raz v Bingham

Hopefully you agree that Dicey’s definition of the Rule of Law works as a starting point, however, let us consider two contrasting approaches to the Rule of Law – those of Joseph Raz and Lord Bingham.

Joseph Raz, in ‘The Authority of the Law (1979) argued that the main function of the Rule of Law is to ensure that ‘the law should confirm to standards designed to enable it effectively to guide action’. This formulation essentially sees the Rule of Law as referring only to the laws of a country generally – this means that the law should:

• be openly and clearly stated, ie be readily accessible to the public;
• not have retrospective effect;
• be made by proper procedures;
• be relatively stable, ie not change frequently;
• provide for open and fair hearings; and
• be administered by an independent judiciary.

Raz’s view was that the Rule of Law meant simply that citizens of a state should understand the laws, and the consequences of their actions. This is all in line with Dicey, but there is no mention of more detailed protections of liberty and democracy. One criticism of Raz’s approach is that an authoritarian dictatorship could potentially comply with his definition of the Rule of Law.

Lord Bingham of Cornhill, a former Lord Chief Justice, Master of the Rolls and a senior Law Lord, attempted to define the Rule of Law in the early 2000s, and arrived at quite a different conclusion to Raz.

Lord Bingham’s view, in his book ‘The Rule of Law (2010) was that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts’. So far, similar to Raz, but Bingham identified eight sub-rules:

1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion (for example, disputes should be resolved by judges, not public officials).
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without excessive cost or delay, civil disputes that the parties cannot resolve themselves.
6. Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purposes for which the powers were conferred and without exceeding the limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.

The first few rules are similar to Raz’s approach, but the requirements for a state to observe human rights, meet its obligations in international law and expressly for members of the executive (ministers and public officers) to behave in line with the law add to the obligations on a state.