Vol. 15 No.6 (June 2005), pp.497-500
ON THE RULE OF LAW: HISTORY, POLITICS, THEORY, by Brian Z. Tamanaha. Cambridge: Cambridge University Press, 2004. 188pp. Hardback. $70.00/£40.00. ISBN: 0-521-84362-6. Paper. $28.99/£16.99. ISBN: 0-521-60465-6.
Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton@usma.edu .
The rule of law – its definition and attributes, the possibility and conditions for its existence, and its significance as a political virtue – has long been a subject of scholarly investigation and debate. In recent years, it has emerged from the confines of academic and philosophical discourse onto the wider stage of contemporary political events, transcending national borders, political regimes, and legal systems. Such diverse public figures as Paddy Ashdown, Mohammed Khatami, George Bush, and Vladimir Putin have all recently extolled the rule of law as the sine qua non of economic development, democracy, human rights, and international stability. The rule of law seems increasingly important and desirable. But the question remains: what is it?
In his short book ON THE RULE OF LAW, Brian Tamanaha seeks to answer this basic question, and he succeeds. This is a valuable work that fills the need for a clearly articulated introduction to this now widely praised, but often poorly understood, political ideal. Remarkably comprehensive for such a short work, the contributions of such figures as Plato, Cicero, Locke, Montesquieu, Madison and Hamilton to the development of the concept of the rule of law, as well as the refinements made by recent and current thinkers like Joseph Raz and Ronald Dworkin, are explicated within a well-constructed framework of the historical, economic, and political forces that have shaped the concept. Tamanaha’s own evaluation and conclusions about the rule of law are balanced, yet he does not hesitate to expand our understanding of the value and shortcomings of the rule of law, especially when applied to non-western cultures and to the international arena.
Viewing it as a product of western political and legal thought, Tamanaha offers a concise examination first of how the rule of law emerged from Greek and Roman roots and survived as an inchoate concept during the medieval period. He then examines the core set of meanings that became associated with it as a component of liberalism during the Enlightenment, as well as the various critiques that have more recently been applied against it, ranging from nineteenth century conservatives (Dicey, Hayek) to twentieth century American realists and critical legal scholars. From this historical review, the author derives three main themes that inform our understanding of the rule of law.
The first (and broadest) theme is government limited by law. This focuses not on individual liberty, but on restraint of government tyranny, and was the dominant version (preceding the idea of individual liberty) until the advent of liberalism, when the focus shifted to [*498] formal legality. It means first that government officials must abide by the currently valid positive law, and second there are restraints on their law-making power (how they can change the law), imposed by natural law, divine law, customary law, or more recently human/civil rights.
This restraint in the first sense came in premodern times from affirmation by the monarch that the law was binding (though not always voluntarily), such as the oath upon taking office, the Magna Carta, a common understanding (such as from German customary law), and the routine conduct of officials. Church leaders, merchants, aristocrats, and others usually cited breaches of law to justify their resistance to arbitrary government actions, which usually took political (or theological) form, since there were few legal remedies for violations of law by the sovereign. But it is possible to apply legal sanctions against the sovereign for violations of the positive law; this usually requires an independent judiciary capable of holding the other parts of government accountable on legal grounds, and whose decisions are respected.
Restraint of government tyranny in the second sense is more ambitious. In Islam the Shari’a may serve this purpose, but in modern times there are tensions even in the Muslim world that result from modernity and pluralism. Ultimately the success of this theme of the rule of law depends on a pervasive belief in it by the people and by government officials. While the role of written constitutions is considered at various points in the book, here the author might have usefully discussed the concept of constitutionalism and its close relationship to the rule of law.
The second theme is formal legality: public, prospective, stable, general laws equally applicable with a fair hearing within a judicial process. This is the dominant theme within liberalism and capitalism, and there is a positive correlation between formal legality and economic development. It emphasizes predictability, deemphasizes the content of the law, is not incompatible with authoritarian regimes, and foregoes requirements of distributive equality and justice in individual cases (though it is not incompatible with these). It may also be inappropriate is some cases, where compromises or political solutions are preferred, or in communitarian societies where social values may clash with aspects of formal legality. Finally, there can be rules that are so numerous and complex that they defeat the purposes of formal legality.
The third theme is rule of law, not man. This avoids the unpredictable predilections of individual actors. But since laws are not self-interpreting or applying, individuals cannot be excluded from consideration. The rule of law response has been to identify the judiciary (legal experts) as the special guardians of the law, and reduce the significance of the individual as judge – at its most extreme in formalism, which values the objective, mechanical judge. This theme has been supported by the growth of law and lawyers and their extensive social penetration in liberal societies, and by the separation of powers and subsequent independence of judges, which was made possible by the professionalization of law. To prevent the rule of law in this theme from [*499] becoming rule by judges is important, especially following the decline of legal formalism. It requires careful selection of judges committed to fidelity to the law, deference to proper authority to make the law, diverse social background of judges, and qualities of judicial honesty and integrity, among other factors.
On the international level, an infrastructure of global law (public and private international law) has been and continues to be laid through rules, acceptance by states, and the creation of international tribunals, especially in the commercial arena which has been driven by the global economy. But here an analogy to the rule of law within nation-states is difficult. International law is characterized by consent-based tribunals, lack of a legislature and executive agencies, and voluntary rather than compelled acceptance of (and compliance with) various legal regimes, all of which create rule of law difficulties. Self-interest and power, and the overall voluntary nature of international adjudication, counterweigh fidelity to the law. However, this situation is roughly similar to the early (medieval) period of the state-centered rule of law tradition; there is then potential for further development of an international rule of law.
Regarding formal legality on the international level, the piecemeal creation of rules and tribunals, which often overlap, along with varying national interpretations and applications of rules, all tend to reduce consistency, certainty, and equality in the application of the law. The creation of international law rules is not always transparent, and compromise and politics, rather than rule application, more often prevails.
Underlying support for the rule of law in nation-states has been supportive beliefs that the law is just, made by the people, and/or for the good of the community. This is lacking in the wide variety of states on the international level, and may be seen as designed to support western power and values. To be successful, an international rule of law must be perceived to reflect the interests of the entire international community.
Tamanaha concludes his book by asking whether the rule of law is a universal human good. The first cluster of meaning of the rule of law, that government officials operate within a legal framework in the two senses of abiding by the law as written and accepting limits on law-making power, is indeed a universal human good. The state system and modern government is a recent (seven centuries old) invention of the West, and in pluralistic societies is not just an extension of the community. Experience shows that government is capable of abusing power as much as benefiting the communities under it. But the situation is more complicated when parts of the positive law or limits on the law (like bills of rights) are transplanted from western (individualistic) societies to non-western (communitarian) ones.
Tamanaha believes that a helpful approach would be to start not with identifying zones of individual autonomy to identify limits on government (a liberal approach), but with the idea of preventing government tyranny, and to decide what limits are appropriate consistent with prevailing social-cultural views. The second [*500] cluster, formal legality (rule by rules), is a valuable good but not necessarily a universal human good. It can be alienating when set in different cultural contexts, such as those with greater emphasis on communitarian values and the importance of social justice (for example, those within the Islamic tradition). The third cluster – the rule of law, not man – follows whenever the first or second is adopted. Self-restraint to avoid descending into rule by judges is necessary.
Finally, Tamanaha notes that all of these clusters are open with regard to content. In his view, justice and the good of the community should be considered in any evaluation of the value of the rule of law. He notes in this regard that “pervasive societal attitudes about fidelity to the rule of law – in each of the three meanings – is the mysterious quality that makes the rule of law work.” (p.141)
So often used as a slogan by politicians for “the pot at the end of the rainbow,” and as a straw man for the vices of modern law and politics by academics, study of the rule of law has long needed a fresh approach that discards the political baggage that has often accompanied any discussion of the concept. ON THE RULE OF LAW offers that approach. Concise but comprehensive (though as noted earlier, some attention to the close relationship between constitutionalism and the rule of law would have been welcome), it considers not only the historical and theoretical framework for the rule of law as a western liberal concept, but also the usefulness of the concept both in other (non-western) cultural contexts, as well as within the international community of states. For anyone seeking to evaluate the multitude of public statements or academic works that promote, critique, or disparage the rule of law, this book is an excellent point of departure for that evaluation.
© Copyright 2005 by the author, Mark Welton.
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