Pillar of wisdom 智慧的基石（最新修改）

International law
国际法

Pillar of wisdom
智慧的基石

Feb 11th 2010 | From The Economist print edition

The Rule of Law. By Tom Bingham. Allen Lane; 213 pages; £20. Buy from Amazon.co.uk

《法治》，作者汤姆•宾厄姆（Tom Bingham），艾伦•雷恩出版社出版；20英镑。可从Amazon.co.uk网站购买

TOM BINGHAM holds that what has come to be known as the rule of law is “the nearest we are likely to approach to a universal secular religion”. The key word is “universal”. Nigel Lawson, Margaret Thatcher’s chancellor of the exchequer, once described the National Health Service (NHS) as being similarly important to the British, but as Barack Obama’s attempts to reform America’s health-care system demonstrate, the NHS is not the envy of the world. For most people who live under the rule of law its blessings can be clearer and less ambiguous even than those conferred by liberal democracy or free markets.

汤姆•宾厄姆认为我们眼中的法治是“我们可能企及的一种普世的世俗宗教”。关键词是“普世的”。撒切尔夫人担任首相期间的英国财政大臣尼格尔•劳森(Nigel Lawson)曾把国民健康服务机制（NHS）称为是对每个英国人都是同等重要的，但正如巴拉克•奥巴马尝试改革美国的医保体制所展现的一样，国民健康服务机制也并非是整个世界钦羡的对象。对生活在法治社会的大多数人而言，其所带来的福祉比自由民主抑或自由市场给予的将更加实在。

Uniquely, Lord Bingham has held all three of Britain’s great judicial offices: Master of the Rolls[1], Lord Chief Justice and Senior Law Lord until his retirement in 2008. In recent times no British jurist other than Lord Denning has wielded more influence on the development of the law. In this short but important book, Lord Bingham begins by outlining the historical milestones (from the Magna Carta to the Universal Declaration of Human Rights, adopted in 1948) that have contributed to understanding what is meant by the rule of law and what he believes are eight essential principles that underpin it.

宾厄姆勋爵曾先后担任英国的三个重要司法职位：上诉法院民事庭庭长，首席大法官，高级司法议员，直到2008年退休。这是英国历史上是独一无二的。近些年来，除了丹宁勋爵，英国没有哪个法学家对法律的发展发挥这么大的影响。在这本短小而又重要的书中，宾汉勋爵开篇就梳理了历史上的重大事件（从《英国大宪章》到1948年批准的《世界人权宣言》），帮助我们理解法治内涵以及他认为的奠定法治基础的八项基本原则。

Among these are the accessibility of the law, equality before the law, the right to a fair trial, the legal accountability of servants of the state and so on. Most of Lord Bingham’s eight principles are uncontroversial, although some will feel that, in defining his preference for a “thick” over a “thin” definition of the rule of law, he goes too far by including social injustices, such as a right to education, which he feels “no one living in a free democratic society…should be required to forgo”.

这八项基本原则包括，法的可及性，法律面前人人平等，获得公正审判的权利，政府职员的法律责任等等。宾厄姆勋爵的八项基本原则大多数没有争议，尽管有人会认为，宾厄姆勋爵在解释他在定义“法治”这一概念上避“简”就“繁”的偏好时，走得太远，把针对社会不公的问题也囊括在内，比如受教育权。－－他认为“生活在自由民主社会的任何一个人都不应被迫放弃”该项权利。

However, it is when he gets to his final point, the requirement that states should regard their obligations under international law as no less forceful than those under national laws, that he really makes his mark. In a cool, but deadly dissection of the assault on the rule of law that was launched by the so-called “war on terror”, Lord Bingham deals first with the question of whether the allied invasion of Iraq was legal. He has no doubt that it was not. He argues persuasively that neither Security Council resolutions 678 nor 1441 could bear the weight that the British government was forced to place on them when confronted by the failure to obtain a further resolution explicitly authorising the use of force. One cannot help feeling that Tony Blair and Lord Goldsmith might have had a hotter time under examination by Lord Bingham than by the Chilcot panel.

但是，当他谈到最后一点，即要求政府应该将他们在国际法中的义务与国内法的义务同等对待时，这一点使他真正在法制史上留下了重重的一笔。宾厄姆勋爵对所谓的“反恐战争”对法治发起的攻击进行了冷静的分析，击中了其要害。他先是谈及了对伊拉克的联合入侵是否合法的问题。他毫不怀疑得指出，这是不合法的。无论是安理会的678号决议还是1441号决议，都不足以使英国政府在没获得一个明确授权使用武力的决议时出兵伊拉克。人们不禁会想，布莱尔和总检察长戈德史密斯勋爵如果遇到了宾厄姆勋爵而非柴考特调查小组，两人的日子将更加难过。

His greatest concern is the way in which the threat of terrorism has been used to justify the encroachment on civil liberties. Lord Bingham takes to task governments both in Britain and abroad who subvert the rule of law in the name of security, using Orwellian euphemisms such as control orders (house arrest without trial), extraordinary rendition (kidnapping) and enhanced interrogation techniques (torture). And he quotes Benjamin Franklin with approval: “He who would put security before liberty deserves neither.”

宾厄姆勋爵最担心的是假借恐怖主义的威胁之名，侵犯公民自由的行为。宾厄姆勋爵训斥了英国其其它国家政府以安全为幌子亵渎法治，指出这些政府用些奥威尔式的委婉语，比如控制令（未经审判的软禁）、非常规引渡（绑架）、讯问的高级技巧（严刑逼供）等。他引用了本杰明•富兰克林的话：“谁若将安全置于自由之首，谁就即无安全亦无自由。”对此，他深表赞同。

Lord Bingham ends by asking what makes the difference between good and bad government. It is, of course, the rule of law. He concludes: “It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large.”

宾厄姆勋爵在其结尾处，问了一个问题。什么可以区别政府治理的好坏。显然，是法治。他的结论是，“这仍是一个理想，但其是一个值得追求的理想，为了良好的政府治理和和平，不管是在英国还是整个世界。”

[1] The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal.

[2] The Lord Chief Justice of England and Wales is the head of the judiciary of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005, which removed the judicial functions from the office of Lord Chancellor. The Lord Chief Justice is also the presiding judge of the Criminal Division of the Court of Appeal.

[3] Lords of Appeal in Ordinary, commonly known as Law Lords, were appointed under the Appellate Jurisdiction Act 1876 to the House of Lords of the United Kingdom in order to exercise its judicial functions, which included acting as the highest court of appeal for most domestic matters. The House of Lords, however, lost its judicial functions upon the establishment of the Supreme Court of the United Kingdom in October 2009; those in office became Justices of the Supreme Court of the United Kingdom and lost their right to speak and vote in the House of Lords until their retirement as Justices of the new court

译者：davidship
欲与译者本人对该文进行切磋，请到如下链接：http://www.ecocn.org/bbs/viewthread.php?tid=30992&extra=page%3D1&page=1