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Book Review
| Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press, 2005. Pp. 180. $70 cloth (ISBN 0-521-84362-6); $28.99 paper (ISBN 0-521-60465-6).
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| 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. |
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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." |
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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. |
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Tamanaha devotes considerable space to liberalism and its critics, as reflected in contemporary academic controversies. While early liberalism defended human rights against government, later liberalism defended pluralism against moral certainty. Both versions of liberalism endorse the rule of law, but latter-day liberalism strengthened the positivist tendency to separate law from morality. This reduces the rule of law to pure legal formality, without the foundation in the natural law that had been so important in establishing the rule of law ideal. Tamanaha describes various modern efforts to ground the rule of law in democracy, so that citizens can understand themselves as authors of the laws they are compelled to obey. |
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Too much attention to the evanescent enthusiasms of recent scholarship would be out of place in a standard history of ideas, but it is entirely appropriate to Tamanaha's project of clarifying and defending the value of the rule of law. Tamanaha devotes as much space to the radical left and the Critical Legal Studies movement as he does to all of the Middle Ages, because the academic left has often taken the surprising and counterproductive position of openly opposing the concept of the rule of law. Governments have always been quick to exploit any loosening of their legal constraints, and misguided legal theory is the first step toward bad public policies. Tamanaha demonstrates how long acquaintance with the rule of law in the West has led to a sense of security that encourages forgetfulness about its benefits. |
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The historical rule of law tradition preserves an emphasis on restricting state tyranny that goes beyond making governments respect their own laws and constitution. Tamanaha's concise overview of the history, politics, and theory of the rule of law confirms the importance of subordinating governments to law and restricting the discretion of those in authority. Judges must be confident and independent enough to defy political pressure, but humble enough to respect the tradition they enforce. Citizens should be subject to the law and justice, not the unpredictable vagaries of other human beings. Tamanaha uses history to show that the rule of law thrives best when lawyers, judges, rulers, and citizens share a culture of deference to law, and law itself seeks justice and the common good. This is an excellent, true, and inspiring book. |
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| Mortimer Sellers
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| University of Baltimore School of Law |
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