Tom Bingham: The rule of law decontextualised


I’ve been reading The Rule of Law (London, Pengiun, 2010) by Tom Bingham (retired Master of the Rolls, Lord Chief Justice and Senior Law Lord) in which he traces the development of the rule of law, its importance and modern implications.

Bingham believes that there are 12 significant milestones in the the development of the rule of law. He outlines each one with a brief historical setting: the Magna Carta, Habeas corpus, the abolition of torture, the petition of right (1628), Sir Matthew Hale’s resolutions, Habeas corpus amendment act (1679), the bill of rights (1689) and the act of Settlement (1701), the American constitution, the French declaration of rights (1789), the American bill of rights (1791), the law of war and the Universal Declaration of Human Rights (1948). What I found frustrating about the book was Bingham’s ideological de-contextualisation. His lack of awareness or attention to the ideas that shaped the milestones made me want to do some background reading.

I found some biographical details of Sir Matthew Hale (1609-1676) (Lord Chief Justice of England at the time of Oliver Cromwell). Bingham cites Hale’s list of resolutions as “significant because it lays down guidelines which would still today be regarded as sound rules for conduct of judicial office.” So Bingham believes that Hale’s character and conduct are exemplary for judges. This is Hale’s list of resolutions:

Sir Matthew Hale

“Things necessary to be continually had in remembrance” Sir Matthew Hale
1. That in the administration of justice, I am entrusted for God, the King and Country; and therefore
2. That is be done (1) Uprightly (2) Deliberately (3) Resolutely.
3. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.
4. That in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked.
5. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions.
6. That I suffer not myself to be prepossessed with any judgement at all, till the whole business and both parties be heard.
7. That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.
8. That in business capital, though by nature prompts me to pity, yet to consider that there is also pity due to the country.
9. That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgement.
10. That I be not biassed with compassion to the poor, or favour to the rich in point of justice.
11. That popular or court applause or distaste, have no influence into any thing I do in point of distribution of justice.
12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.
13. If in criminals it be a measuring cast, to incline to mercy and acquittal.
14. In criminals that consist merely in words when no more harm ensues, moderation is no justice.
15. In criminals of blood, if the fact be evident, severity in justice.
16. To abhor all private solicitations of whatever kind soever and by whomsoever in matters depending.
17. To charge my servants (1) Not to interpose in any business whatsoever (2) Not to take more than their known fee (3) Not to give undue preference to causes (4) Not to recommend counsel.
18. To be short and sparing at meals that I may be fitter for business.

The source of these resolutions will be familiar to regular readers of this blog. They are biblical principles. Hale was orphaned aged 5 and brought up by Mr. Staunton, the puritan vicar of Wotton-under-Edge. He studied hard and aged 16 he entered Magdalene College, Oxford, with a view taking holy orders. He rebelled at college but later returned to his puritan roots. Hale’s approach to justice and character as a judge are clearly shaped by his submission to biblical authority.

It is a pity that Tom Bingham, perhaps for reasons of brevity or a lack of personal interest, did not set these milestones in their historical philosophical context. There is no way to avoid the Judeo-Christian basis for good law and judicial behaviour. The character and disposition of a judge is not natural or intuitive but shaped by God’s word. If the lessons of history are not learned in their context then any clues as to where things legal and lawful are going awry today will remain hidden even lost.

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3 Responses to Tom Bingham: The rule of law decontextualised

  1. ahmad says:

    This Hale’s list of resolutions as what the author said is still being regarded as sound rules for conduct of judicial office.That is why this author Tom Bingham verily ,honestly and sincerely believes that Sir Matthew Hale(1609=1676)(Lord Chief Justice of England at the time of Oliver Cromwell) character and conduct are exemplary for judges. Please take your time to ponder on it.

  2. zamzani says:

    Actually i made the comment to
    my friend for him to ponder on it.

    • neilrobbie says:

      Dear Malaysian friends, terima kasi for your comments and selemat detang ke Transforming Grace. I lived for two years in KL and miss it very much. I hope all is well since the days of the haze, Sukom ’98 and the eonomic crisis and riots which we’re now suffering in Europe 10 years later than Asia. I remember Anwar’s arrest and don’t want to say anything here about the judiciary at that time but Tom Bingham’s checklist is very helpful. Having lived in Asia I could see the economic crisis coming here, too much property speculation. At least our deputy-PM didn’t get arrested! Go well, jumpa lagi. Neil

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