Friday, May 4, 2007

Sellers reviews Tamanaha, On the Rule of Law: History, Politics, Theory

Mortimer Sellers, University of Baltimore School of Law, reviews Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2005), in the Law and History Review, finding it "an excellent, true, and inspiring book." Sellers writes:

Human rights, democracy, and the rule of law are the three primary values of the new Western political consensus, proclaimed frequently through United States diplomacy, through the Organization for Security and Cooperation in Europe, through European Union institutions, and in many other formal treaties and declarations since the Second World War. The history of this rule of law ideology stretches back over two millennia of gradual progression toward modern liberal democracy. Brian Z. Tamanaha has written a clear, concise, accurate, and convincing history of the triumph of the rule of law, beginning in Greece and Rome, continuing through the Middle Ages, developing through the liberal enlightenment, expanding after the Second World War and Cold War victories, and resisting the retrograde challenges of communism, fascism, and other trendy authoritarian or relativist ideas. Tamanaha concludes that the rule of law is a universal human good, and that everyone is better off when government officials abide by the law as written, and accept the necessary limits of their power.

Tamanaha's primary purpose in giving his excellent synopsis is not so much history for its own sake as it is the insights that history gives into the meaning of the rule of law, and how best to understand a concept that has achieved unique preeminence as a global ideal. Tamanaha identifies three central themes or clusters of meaning among the various conceptions of the rule of law that have emerged over the centuries. First, the state and its officials should be limited by law. Second, "formal legality" should be respected, so that law is public, prospective, general, and obeyed. Third, particular individuals should not have too much discretion to interpret or apply the law: there should be a "government of laws and not of men."

This search for the central meaning (or meanings) of the rule of law vacillates a little bit between description and prescription. Tamanaha wants to bring greater clarity to what he considers to be "the preeminent legitimating political ideal in the world today." But usage (as he rightly recognizes) has not always been clear. As with "democracy" and "human rights," there is a temptation (once the rule of law is recognized to be a universal good) to assert that all good things are part of the rule of law. Tamanaha sometimes submits to this temptation himself, when he describes democracy and human rights as necessary elements in the rule of law.

For the rest, click here. An earlier review, also positive, appeared in the Law and Politics Book Review.