How to Be a Good Judge

John Gardner

  • The Rule of Law by Tom Bingham
    Allen Lane, 213 pp, £20.00, February 2010, ISBN 978 1 84614 090 7

During the break-up with Kimberly Quinn that precipitated his break-up with the Home Office, David Blunkett is reported to have warned her: ‘The law is on my side. I know because I made the law.’ It doesn’t quite have the melodramatic chill of Judge Dredd’s ‘I am the law,’ but it comes close. And it’s easy to imagine Blunkett saying it, for it nicely sums up the tragically self-important view he took of himself, and of the executive branch of government, during his time in office. It was a view shared by much of the New Labour administration. The law is the servant, they believed, of our duly elected political masters. It is what they say it is and what they want it to be.

This view inverts a central tenet of the ideal known as ‘the rule of law’. Under the rule of law, as Plato put it, ‘law is the master of the government and the government is its slave.’ Where the rule of law prevails, nobody is above the law. The government too must answer to it in everything it does. It’s not only that the government can’t violate the law with impunity, but that it can’t casually change the law to exempt itself. Where the rule of law prevails, the law is resistant to such alteration. It is stable and general and promulgated in advance of the situations to which it applies. It is tested in front of independent judges in open court. Any legal change, under these conditions, takes time and effort, and has implications, often unforeseen, for situations other than the one the law-changer was trying to deal with. So one may turn out not to have made the legal change one was hoping to make. This means that, thanks to the rule of law, it is very hard for a government to get the law out of the way ad hoc so as to clear a quick and easy path to its policy objectives.

Doesn’t that make the rule of law undemocratic, at odds with the rule of the people? Maybe. But the rule of the people is not the rule of the government. In a parliamentary democracy the government is not popularly elected, as the handover of prime ministerial office from Blair to Brown reminded us. The government is a political elite, a career oligarchy, appointed from within an elected (in our case, partly elected) Parliament. Members of the government are elected, if at all, only as members of Parliament, not as members of the government. If the distinction is sometimes forgotten, that only goes to show how much control the government tends to exert these days over parliamentary business, and how little scope there tends to be for the people as a whole – including those who voted for opposition MPs – to do any ruling. So let’s not hear any bleating about the need for the law to be subordinate to democracy from those, like Blunkett, who turn out to be only fair-weather friends to both.

And let’s not overstate the conflict. In at least two ways democracy needs the rule of law. First, the ballot box is not the only mechanism of public political participation; nor is it the only mode of public political accountability. Periodic voting is neither necessary nor sufficient for democratic life. The first democracies acquired their lawmakers by lottery rather than election; politics was not a career but a periodic duty for all. That feature is still echoed in our system of jury selection, a reminder that the courtroom too is a place of public political participation. We exert our influence on public affairs by serving as jurors and lay magistrates, not to mention as litigants (when the government of the day isn’t busy cutting off our legal aid). In the courtroom there are also lawyers and judges, another famous elite. But are they any more of an oligarchy than party politicians? And are they notably less accountable? No. Uniquely among public officials, judges are required to hear and decide any question that is validly brought before them and to produce fully argued public justifications for their final decisions. That makes them uniquely accessible and uniquely exposed, and plainly we wouldn’t be a democracy unless they were. Imagine a country with periodic re-elections of all officials, including judges, but without justice dispensed openly in publicly accessible courts. Such a country shouldn’t be thought of as a democracy because, in spite of its election mania, it would lack an essential way for people to participate in public life, as well as one of the most demanding modes of public accountability for officials.

There’s a second way in which the rule of law is needed for democracy. Democracy is the rule of the people, not just the implementation of the people’s will (whatever that may mean). If popular influence is exerted other than through a system in which authoritative general rules are complemented by authoritative independent adjudication of what counts as a breach of those rules, that isn’t rule by the people because it isn’t rule at all. Of course, there is more than one way to organise the system of public general rules (the law) and more than one way to relate the other organs of the system to its organs of adjudication (the courts). But this leaves room for only marginal conflict between democracy and the rule of law. Democrats need the rule of law above all else. They need government to be the slave, not the master, of the law. For they need the people to rule, and that means, above all else, to rule the government. For this they need rules (including electoral rules) by which to do so and powerful independent institutions to apply and uphold those rules.

None of this was lost on Blunkett. He understood enough of it to know that he didn’t like it, and regularly kicked against it. Lawyers and judges were his bêtes noires. He wasn’t the only member of the administration to resent and rebuke their intrusions, even those intrusions called for by his own administration’s flagship manifesto legislation, the Human Rights Act of 1998.

Lucky for us, then, that during the Blunkett years, and indeed throughout the age of New Labour, our judicial system was led by a lawyer as conscientious, as judicious, as acute and as lacking in self-importance as Tom Bingham, now Lord Bingham of Cornhill. Bingham’s early practice at the Bar was as generalist as could be, and, although his judicial career was at first dominated by commercial work, a recent Festschrift, to mark his retirement from the bench, documents his contributions to everything from maritime arbitration law to European competition law to the law of public inquiries.[*] Yet his professional legacy consists not only in this vast body of law. The Festschrift also draws attention to the decisive role that he played, as lord chief justice during New Labour’s ambivalent human rights honeymoon and then as senior law lord during the dark and reactionary war on terror years that followed, in upholding the independence of the judiciary and standing up for the special role of the courts in protecting the rule of law.

Some of this work he did in court. Consider, among many notable judgments, his successive repudiations of the control orders that allowed for detention of non-British terror suspects without trial and, later, after semi-secret trial; his robust dissenting opinion on the legality of the arrangements for dealing with the displaced indigenous population of Diego Garcia in the Indian Ocean; and his deft handling of the decision by the Serious Fraud Office to abandon bribery proceedings against BAE after unlawful pressure from Saudi Arabia. He did other work outside the courtroom, often as a member of the House of Lords, or in lectures and academic papers. He led, for example, the more constructive wing of the senior judiciary in creating what is now our Supreme Court (retiring before he could become its first president); and he cleverly used a public lecture to explain to Charles Clarke, Blunkett’s successor at the Home Office, what Clarke shouldn’t have needed to have explained to him, namely that judges are ‘bound to take no notice’ of the views of government ministers, and so shouldn’t be expected to have cosy chats with them.

Bingham has also used his academic lectures and papers to consider more systematically ideas that he was able to engage with in his judicial work only in a fragmentary and cursory way. It was in a public lecture given in Cambridge in 2006 that he started to bring together his thoughts on the rule of law itself, and The Rule of Law now extends and deepens the themes of that lecture. It displays Bingham’s erudition and patience, both rare qualities in legal practitioners, as well as his robust outlook and accessible style. He adds a slight flavour of autobiography by, as he puts it, ‘referring, disproportionately … to cases in which I have been involved’, but with none of the pomposity and vanity that made Lord Denning’s post-retirement output so cringeworthy. Although easy and pleasant to read, bringing refreshing simplicity to issues that convolute legal theorists, Bingham’s book is scrupulously academic in tone. His own views are always clearly stated and firmly maintained, but great trouble is taken to survey and illuminate rival opinions, including those that divide Bingham from his fellow judges, those that he finds in the academic literature, and even those held by politicians and journalists. The book would be a tonic for anyone who believes, reading the party-political sloganeering about the rule of law that appears (with intended irony) on its dust jacket, that the ideal is an empty one. Bingham shows that, on the contrary, it has much work to do, and that we underestimate it mainly because we cannot imagine life without it. We complain that judicial efforts to protect it are undemocratic because we fail to see that democracy itself is made possible only by its unobtrusive presence.

Made possible, but also made inevitable? Apparently so. Bingham favours what he calls a ‘thick’ account of the rule of law, according to which it necessitates respect for and protection of the full range of human rights: not just those ensuring due process of law for all, but also those concerned with, for example, life, privacy, association, property and assembly. The rule of law, Bingham thinks, also requires anti-discrimination rights. It follows that his thinking on the subject does not leave logical space for regimes that respect the rule of law but are otherwise notably illiberal (e.g. forbid gay relationships or organised religions). Nor – a different point – does it leave logical space for regimes that respect the rule of law but are otherwise notably undemocratic (e.g. do not have universal suffrage or have only one political party). This is slightly reminiscent of Dicey’s brilliant but infamous treatment of the rule of law according to which, roughly, no country has the rule of law unless it also has the British constitution. Bingham is, of course, nowhere near so jingoistic. Roughly, no country has the rule of law unless it would be morally suitable to join the Council of Europe.

Why does Bingham favour this too parochial view of his subject? His two attempts at explanation are cursory and strange. The first comes early in the book. Referring to the law of torture in various jurisdictions and historical periods, he asks, as well he might: ‘What has this got to do with the rule of law?’ His answer: ‘There are some practices so abhorrent as not to be tolerable’ and which ‘even the supreme power in the state should not be allowed to do, ever’. Clearly that is the right answer, but to a different question. It explains why torture ought to be banned in every country, such that if the rule of law prevails in that country there will be no torture there. But it does nothing at all to explain why the ban itself is required by the rule of law. To bring it under that heading, Bingham seems to be making the following plainly invalid argument: conformity with the rule of law is a hallmark of civilisation; the banning of torture is a hallmark of civilisation; therefore the banning of torture is part of conformity with the rule of law.

Things don’t get much clearer when Bingham comes back to the question later in the book. He says that if regimes that violate human rights could be rule of law regimes, that would strip the rule of law ‘of much of its virtue’. This time the argument seems to go like this: if the banning of torture (and censorship and so on) were not part of conformity with the rule of law, conformity with the rule of law would be less important than it is; conformity with the rule of law is not less important than it is; thus the banning of torture (and censorship and so on) is part of conformity with the rule of law. This argument is valid, but question-begging. How important it is to conform with the rule of law, in comparison with other sometimes competing ideals and principles of good government, is one of the questions we need an answer to. It is argumentative gerrymandering simply to fold those other ideals and principles of good government into our account of the rule of law until it reaches the level of importance we want it to have.

Moreover, even if we ignore the question-beggingness of Bingham’s second argument, we may be puzzled by one of its assumptions. Why would anyone think that something is stripped of ‘much of its virtue’ just because it doesn’t automatically bring with it various other good things? Isn’t it enough that it is a precondition of those other good things (as conformity to the rule of law is of both democracy and respect for human rights)? Life is a precondition for the realisation of any other kind of value. Of course life can be wasted, meaning that it doesn’t yield much in the way of other kinds of value. It does not follow from this possibility, however, that the value of life itself is nugatory, that life is stripped ‘of much of its virtue’. Nor does the fact that the rule of law does not automatically bring with it democracy and respect for human rights diminish its value in making these and many other good things possible. Bingham’s assumption to the contrary goes unexplained and we are left none the wiser as to his reasons for favouring a ‘thick’ account of the rule of law.

There are some hints that Bingham has not quite worked through all the implications of his ‘thick’ account. In a 2005 case concerning the validity of the Hunting Act 2004, his fellow law lords Steyn and Hale warned that there might come a day when they would hold part of an act of Parliament legally invalid because in it Parliament attempted to do something antithetical to the rule of law. Bingham was silent on the point at the time. In his book he opposes the Steyn-Hale view. It is indeed the place of judges to uphold the rule of law, he says, but not in that way, not in violation of the doctrine of parliamentary sovereignty. We can see why he might think this if, under the heading of the rule of law, he includes protection for the whole range of human rights. As he rightly says, Parliament gave English judges the power to rule on the compatibility of acts of Parliament with human rights standards, and Parliament can (as things stand in the law today) take that power away. But Steyn and Hale are not thinking of an act of Parliament that merely violates human rights. No doubt they agree that Parliament is constitutionally at liberty to do that much. As they make clear, they are thinking of an act of Parliament that purports to oust the jurisdiction of the courts to rule on questions of law arising under that same act. Consider, for example, an act of Parliament that says that it is deliberately obscure and must not be clarified by the courts. I hope Bingham would agree that in spite of this provision the courts would have to go on applying – and thereby necessarily clarifying – the act, for that is the very least that the doctrine of parliamentary sovereignty requires. It requires the courts to apply parliamentary legislation, whatever its merits. If Bingham would accept this then he is on the side of Steyn and Hale after all. He is committed to upholding an act of Parliament as law even when it demands not to be upheld.

It is only Bingham’s ‘thick’ account, then, that makes it seem as if the Steyn and Hale view is at odds with the constitutional doctrine of parliamentary sovereignty. If we jettison the extra baggage with which Bingham weighs down the ideal, we see that the rule of law and the doctrine of parliamentary sovereignty are as one in requiring judges to disregard, and thereby invalidate, certain imaginable provisions of an act of Parliament. For those provisions prevent acts from entering the law, and the doctrine of parliamentary sovereignty says that all acts of Parliament, however immoral, have to enter the law. The doctrine of parliamentary sovereignty cuts against invalidating acts of Parliament on human rights grounds, but not against invalidating them on rule of law grounds.

These philosophical criticisms of Bingham’s arguments are in one way unfair. He is not a philosopher and this is not, and does not pretend to be, a philosophical book. It is true that Bingham poses certain timeless philosophical questions – what is the rule of law and why does it matter? – but he sets about answering them in an impeccably judicial way, treating them primarily as contemporary questions of doctrine and policy calling for a brisk adjudication. Usually, then, he puts before us two rival positions on each topic, much as if they were the positions of two parties appearing before him in court. Having set them out, he rapidly moves to tell us which he favours. Typically, there is little intervening argument in support of the chosen option, never mind against the rejected one. To mention one striking example, Bingham sets aside a well-known philosophical analysis of the rule of law by saying that while ‘one can recognise [its] logical force’, he would ‘roundly reject’ it. He prefers a rival view which he attributes to the European Court of Human Rights and certain other institutions. Why? No reason is given beyond the statement that those institutions endorse it and that he prefers it. As philosophy this would be high comedy. As the work of a judge it is, to repeat, impeccable.

I am not trying to suggest that judges do not make arguments, or that they do not make good arguments. They do, but the art of judicial argument is different from the art of philosophical argument. The cases that call for argument in the higher courts are, by and large, those that are arguable, meaning those that could reasonably be decided either way. The arguments having been made by able lawyers on both sides, there is normally no secret ingredient a judge can add that will make one a success and the other a failure, other than a decision to run with one and not the other. Running with an argument generally means setting the argument out in its most persuasive form, and thereby (or thereafter) endorsing it. There is no requirement to show that the argument for the other side was deficient – thankfully, because usually it wasn’t – let alone a requirement to dispose of any arguments that were not advanced by either party. An accomplished judge may well pretend, even to herself, that the question before the court is soluble other than by decision, but by and large it is not. So there isn’t much point in being a philosopher on the bench. Nothing is a philosophical problem if it is soluble only by decision. Some philosophical problems may not be soluble, but to the extent that they are they call for solutions that recommend themselves as true, irrespective of anyone’s decision to endorse them. Most problems in the higher courts are not of this type and the undoubted skill of judging in the higher courts is therefore not readily transferable into philosophy (or vice versa).

The rule of law is not only a moral ideal for government and law, but also a core doctrine of the United Kingdom constitution, recently reasserted by act of Parliament. The Rule of Law does double service as a lively tour of some of the contemporary and historical debates about the moral ideal and as an introduction to some problems about the constitution that have been pressingly and sometimes disturbingly live in important recent cases in the higher courts in England. In its first role, Bingham’s book goes slightly out of its depth. In its second role, it is in its element.

[*] Tom Bingham and the Transformation of the Law: A Liber Amicorum edited by Mads Andenas and Duncan Fairgrieve (Oxford, 968 pp., £95, April, 978 0 19 956618 1).