Thursday, January 31, 2008

Tamanaha on The Dark Side of the Relationship between the Rule of Law and Liberalism

Brian Z. Tamanaha, St. Johns University School of Law, has posted a new essay, The Dark Side of the Relationship between the Rule of Law and Liberalism. It is forthcoming in the NYU Journal of Law and Liberty. I would read this along with David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism. Here's the abstract:
Liberalism, democracy, and the rule of law are often thought to constitute a seamless unity, reflected in contemporary Western liberal democracies. That understanding, while not incorrect, does not tell the whole story. This article traces out a long historical pattern in which liberalism and the rule of law have combined to restrict the exercise of democracy. This pattern will be exposed by elaborating on four contexts: the shift in political theory from classical liberalism to modern social welfare liberalism; the shift from the common law to legislation as the primary source of law; resort to the rule of law by liberals from the eighteenth century to the present; and the contemporary implementation of neoliberal reforms in developing countries around the world. The article will argue that liberalism has enjoyed an opportunistic relationship with the rule of law, a relationship which has taken different forms over time, though repeatedly evincing an anti-democratic tendency on behalf of property rights.
This relationship is a source of skepticism about the rule of law, and harbors the potential to discredit the rule of law in the eyes of many around the world. This article lays out this "dark side" of their relationship in an effort to separate what the rule of law requires from what liberalism wants.