The Rule of Law:

 
 
 
The Rule of Law
di Luca Porcella
 
"The Rule of Law" by Tom Bingham. Incorporates the principles of international
law and focuses in particular on the differences and similarities between
English law and the U.S. in the fight against terrorism.
 
Università: Libera Univ. Internaz. di Studi Soc. G.Carli-
(LUISS) di Roma
Facoltà: Scienze Politiche
Esame: Comparative Constitutional Law
Docente: Nicola Lupo e Carmela Decaro
Titolo del libro: The Rule of Law
Autore del libro: Tom Bingham
Editore: London: Penguin Books
Anno pubblicazione: 20101. The Importance of the Rule of Law
 
The idea of "RULE OF LAW" (hereinafter: ROL) was not invented by Albert V. Dicey (it has very antique
origins), but the English author is fundamental in its recognition and definition. In An Introduction to the
Study of the Law of the Constitution (1885), he gave three meanings of the rule of law: 
 
"no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land"; 
 
"every man […] is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals" = no one is above the law and all are subject to the same law administered in the same courts. 
 
"the general principles of the constitution are with us the result of judicial decisions determining the rights
of private persons in particular cases brought before the courts" = distrust towards the great declarations of
principles: it is better to rely on an incremental process of common law decision-making (case by case). 
 
According to some authors, the concept of ROL has become too broad and uncertain to be useful, due to an
ideological abuse and a general over-use. However, it is impossible to say that it is useless for some reasons: 
 
- in many cases judges refer to the ROL in giving their judgements; 
- many international documents directly refer to the ROL (Universal Declaration of Human Rights, Treaty
on the EU, Constitution of South Africa, etc.); 
- the ROL is now contained in the British Constitutional Reform Act 2005. 
 
The problem is that no definition of the ROL is provided, even if now it is cited in a statute. Maybe the
drafters of the Constitutional Reform Act recognized the difficulty to define it and left this task to the
judges, who have to rule in particular case and can give a concrete and evolving definition of the ROL. 
 
However, it is important to stress that belief in the ROL does not import unqualified admiration of the law;
but it leads to accept that we would very much rather live in a country which complies with this principle
than in one which does not. 
Luca Porcella Sezione Appunti
The Rule of Law 2. Features of the Rule of Law - The Law Must Be Accessible
 
THE LAW MUST BE ACCESSIBLE AND SO FAR AS POSSIBLE INTELLEGIBLE, CLEAR AND
PREDICTABLE 
 
 
ACCESSIBILITY is due to three reasons: 
1 - people should be able to find out what they must do or not do on pain of criminal penalty; 
2 - even in civil law, people needs to know their rights and obligations; 
3 - the successful conduct of trade, investment and business generally is promoted by a body of accessible
legal rules governing commercial rights and obligations. 
 
This is why accessibility is clearly stated by courts all over the world (House of Lords, ECtHR, etc.). The
degree of observation of this rule varies according to the countries, with differences between civil law
systems (where law is mainly codified) and common law systems (where many efforts have been made to
try to make legislation clear and intelligible). 
 
Regarding the UK, an important step was the accession to the EU and the promulgation of the European
Communities Act 1972, which provided for the primacy of European law over national law. So the UK
became bound to comply with the Treaties, regulations, directives and decisions of the ECJ. In any case, the
main requirement is that the rule laid down should be CLEAR. 
 
Luca Porcella Sezione Appunti
The Rule of Law