The rule of law and a vital missing piece


A couple of years back, I wrote a post on Tom Bingham’s book The Rule of Law (London, Penguin, 2010).  Bingham is well qualified to write on the matter as retired Master of the Rolls, Lord Chief Justice and Senior Law Lord.  In that post I expressed my frustrations at Bingham’s historical decontextualisation of the twelve milestones which he cites as vital to our understanding of the rule of law today.

It’s occurred to me, since writing that post, that Bingham omitted perhaps the most important milestone in the development of the rule of law in the UK.  Samuel Rutherford’s Lex Rex, which by its title tells us what the author thought, states that the ruler, in this case the king, Rex, is not the law, Lex, but rather, the law rules over the king and his subjects.  I suspect that Bingham left this crucial milestone out because, in order for the law to occupy a place above the rulers of the nation, there must be a law giver who is greater than the rulers; God.

I am glad we adhere, by and large, to the notion of the rule of law in the UK even if the practice is now being undermined by individual disregard for it at all levels of society.  We are in a position today where we are returning, ever so unwittingly, to the condition we occupied under Charles I, where the ruler is the law.  Democratically elected rulers are in essence no different to heredity monarchs and their pools of advisors, if the rulers think it is their place to invent and then enforce laws of their choosing and making.  When the rulers become the absolute legal authority, then we are headed for trouble.

The electorate in the UK vote today for the political party who can best manage the UK economy.  We no longer vote on ideological grounds as all parties are ideologically indistinguishable and are wedded to the secular notion that the law is in the rulers hands and so we return to Rex Lex.  When was the last time a government was voted out of office for changing laws on morality?

All those who prepare for government should be expected to be familiar with Tom Bingham’s list of 12 milestones, but we need to add another.  If you are a politician, you need to be familiar with Rutherford’s work, and the reduced Lex Rex is a good place to start.  The content page itself is facinating.

May God bless us and save us.

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