The Role of Law

Sometimes you find an error in a book so early and brazen that you barely feel the need to read further, and if you do, everything after that is diminished by the awareness of the author's bias or irrationality. A classic example is Marx's Das Capital, and his theory of value. It is palpable nonsense, on which much of his edifice rests. Anyone with a critical mind must surely see through it. There may be some grains of truth later, but one tends to discount them from awareness that his reasoning is prejudiced.

Sadly, I have just had a similar experience with a book I expected to enjoy: Tom Bingham's The Rule of Law. Only a few pages in, Bingham (seeking to refute Dicey and other predecessors' distinction between the role of the common law in protecting individual rights in Britain, and the dependence on the constitution for whatever limited rights individuals enjoy in other cultures) says:

Although the 'rule of law' is, obviously, an English expression, familiar in the UK and in countries such as Ireland, the United States, Canada, Australia and New Zealand, whose law has been influenced by that of Britain, it is also meaningful in countries whose law is influenced by the jurisprudence of Germany, France, Italy, the Netherlands and Spain. In Germany for instance, reference is made to the Rechtstaat, in France to the État de droit, which literally translated, mean 'the law-governed state'.

No it doesn't. Both of these refer to "rights", which is a different, though related concept to the law. And they also refer to the state, which is not considered sufficiently central to the concept of "the rule of law" to deserve a mention in the Anglo-Saxon concept. And there is nothing in the conjunction of the two terms (rights and state) that suggests that one is superior to the other (as implied by Bingham's translation). Rather, the language indicates that they are conjoined - rights flow from the state as much as the other way round. These terms reflect exactly the opposite of the point that Bingham wants us to believe, and it is not to his credit that he hopes to hoodwink us with mistranslations of foreign terms.

There is a clear distinction in the relationship between the individual and the state and in the source of man's rights, between the Anglo-Saxon, Lockean, common-law tradition, and the continental, Rousseauian, Napoleonic/codified law tradition. In the former, man's rights are innate. He delegates limited authority to the state to decide only those things that must be decided by the state, and subjects himself voluntarily to the also-limited rule of the common law as the arbiter where his liberties are infringed or where there is a clash between two sets of liberties. In the latter, man's rights are fully subsumed by the community and by the state as the community's embodiment, which then hands back those limited rights that the state sees fit for the individual to possess.

These differences are well-reflected in the different linguistic terminology to which Bingham refers. It is disingenuous of him to try to use them to illustrate the commonality rather than the fundamental differences between our perspectives.