His second principle is that "questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion". "It is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices it is quite another to seek to recast the law in a radically innovative or adventurous way." As he explains, this is a restraint on judicial activism. Both in the lecture and more extensively in the book, Bingham expands his definition into eight sub-rules or principles.įirst, he says, "the law must be accessible and so far as possible intelligible, clear and predictable". There's a lot packed into that sentence and it's worth reading it again until you grasp what it means. In summary, it is "that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts." Bingham's definition of that much-used term is now entirely authoritative and will probably remain so for the next 120 years or more. Until Bingham spoke, "the rule of law" meant pretty much what Dicey had said it meant in 1885. Sadly, the greatest judge of his generation is no longer able to hear my plea in mitigation - which is that, powerful advocate as Bingham was, he made his thesis appear so sensible, so obvious, that nobody could have thought there was anything new in it.įar from it. ![]() ![]() I must plead guilty to being one of the legal correspondents who concluded that Bingham's lecture would never make the news pages.
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