On the Rule of Law: History, Politics, Theory [Hardcover]

Brian Z. Tamanaha (Author)

Book Description

Publication Date: December 13, 2004 | ISBN-10: 0521843626 | ISBN-13: 978-0521843621

Although it is currently the most important political ideal, there is much confusion about what the 'rule of law' means and how it works. Brian Tamanaha outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book's examination of the rule of law on a global level concludes by deciding whether the rule of law is a universal human good.

Editorial Reviews

Review

"Concise but comprehensive...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." Law and Politics Review

"Terrific. Brian Tamanaha has written a book that should educate not only every student and layperson who reads it, but also scholars who wrongly think there is nothing new to say about the rule of law... I hope it gets the wide readership it deserves." Sanford Levinson, Professor of Law, University of Texas Law school, author of Wrestling with Diversity

"[Tamanaha]'s book presents a brief and clear introductory history and analysis that defends the coherence and value of the rule of law and that gives a sense of its global reach, limitations, and prospects...analyses are intelligent and fair-minded...Tamanaha is clearly a sophisticated institutionalist, and On the Rule of Law offers valuable insights." - Perspectives on Politics, Stephen G. Englemann, University of Illinois at Chicago

"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." - Mortimer Sellers, University of Baltimore School of Law

Book Description

This book explores the history, politics, and theory surrounding the rule of law ideal. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. The strengths and weaknesses of two basic theoretical streams of the rule of law are then explored. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.

See all Editorial Reviews

Product Details

• Hardcover: 190 pages
• Publisher: Cambridge University Press (December 13, 2004)
• Language: English
• ISBN-10: 0521843626
• ISBN-13: 978-0521843621
• Product Dimensions: 9 x 6 x 0.7 inches
• Shipping Weight: 14.1 ounces (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (3 customer reviews)
• Amazon Best Sellers Rank: #3,613,490 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

33 of 33 people found the following review helpful:

5.0 out of 5 stars Brief, clear, and erudite, May 28, 2005

By 

John S. Ryan "Scott Ryan" (Cuyahoga Falls, OH) - See all my reviews
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This review is from: On the Rule of Law: History, Politics, Theory (Paperback)

We're hearing quite a bit these days about 'judicial activism', so it would be nice if we could be clear just what we mean by the 'rule of law'.

Unfortunately, when we get down to specifics, the term means different things to different people. Probably no one anywhere seriously contends as a matter of principle that e.g. judges should render strictly subjective opinions. But in practice, one person's law is another person's bias. (And contrary to the rhetoric of the loudest voices in such debates, it's usually because there are two competing principles genuinely at issue, not because one side doesn't care about principles at all.)

So it's a good idea to take a step back and ask, a bit more abstractly, exactly what we mean by the 'rule of law'. And that's where this slim but information-dense volume comes in.

Brian Tamanaha takes just about the only course it's possible to take in defining such a nebulous concept: the historical approach. By way of putting salt on the tail of the ideal of the rule of law, he traces the development of the concept from ancient Greece to the present day.

If you think that sounds like a big job for just 141 pages of text (plus notes and bibliography), you're right. In fact, one of the most impressive things about this deceptively small book is the amount of erudition Tamanaha manages to pack economically into its pages. There's quite a lot buried between the lines here, and sweating this baby down to such a manageable length (while keeping it readable) must have taken some real editing.

For it _is_ eminently readable, and it does provide a thorough, if brief, tour of the development of the rule-of-law ideal in Western civilization.

The tour begins, naturally enough, in ancient Greece and Rome, since the ideal at least has its roots in, most notably, the writings of Plato and Aristotle. However, as Tamanaha points out, these writings didn't directly embody the ideal and in any event were largely lost to the West until medieval times; their importance for the rule of law was largely in their influence on later thinkers.

It's in the Middle Ages that things really get rolling, what with all the power struggles between the papacy and the various thrones, the development of German customary law, and the Magna Carta. Even here, as Tamanaha shows, the ideal hasn't come to full fruition; what happens at this stage is that we're bequeathed a difficult question about how the government -- the state, the monarch, the legislature, the sovereign -- can be bound by the law when it is itself apparently the source of that law.

Tamanaha traces the ramifications of this question, and its developing answers, through the rise of the middle class, the Enlightenment, the growth of capitalism, and the modern era -- significantly and properly locating the rule-of-law ideal in the rise of political liberalism (in its broadest sense). Along the way we get short and incisive summaries of e.g. the works of Locke, Montesquieu, and Hamilton, Madison, and Jay, and a fine (and scrupulously fair) overview of the recent history and current state of the debate.

In the end we wind up with a broad tripartite account of the meaning of the rule of law. The three essential themes, Tamanaha contends, are the limitation of government itself by law, the 'formal' requirement that law be both impersonal and predictable, and the contrast between the 'rule of law' and the 'rule of man'. Having distinguished these themes, Tamanaha spends a chapter considering their application to international law, and then closes with a short rumination on whether the rule of law is really a 'universal human good'.

Ultimately Tamanaha finds grounds for optimism in the fact that pretty much everyone, no matter what their other disagreements, gives at least lip service to the rule-of-law ideal. This fact, though disconcertingly negative as to the prospects for agreement about precisely what the rule of law means in detail, is also evidence that societal attitudes broadly favoring the rule of law are deeply embedded and not likely to be dislodged by those narrower disputes.

It would be hard to find a more timely subject than Tamanaha's, and it would be hard to find a fairer or more readable discussion than his. If you're interested in current debates about the independence of the judiciary and the role of judges, don't miss this opportunity to stand back from those debates and look at the big picture. Public discourse is better served by a little history than by a lot of rhetoric.

6 of 7 people found the following review helpful:

5.0 out of 5 stars Very Informative, August 4, 2007

By 

John Salvatier (Seattle, WA) - See all my reviews
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This review is from: On the Rule of Law: History, Politics, Theory (Paperback)

I found this book very informative. Tamanaha goes clearly though the different definitions for 'rule-of-law' and how they differ. The parts that I knew a little bit about seemed quite accurate. The book is short but strikingly comprehensive.

4.0 out of 5 stars Good survey of history and theories of the rule of law concept, May 18, 2011

By 

E. Jaksetic (Virginia, USA) - See all my reviews
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This review is from: On the Rule of Law: History, Politics, Theory (Paperback)

The rule of law is an important legal and political concept that has a long history, and it has been the expounded in a variety of theoretical formulations. Moreover, the rule of law is an important legal and political concept around the world today.

The author provides a very good overview of the history of the rule of law concept, and does a very good job of describing various theories of the rule of law concept. The author's historical overview gives the reader important factual background and political and social context to better understand how the rule of law concept has developed, and been invoked and used throughout history. The author's description of various theories of the rule of law concept is very informative and helps the reader to understand significant differences in the meaning given to the rule of law concept by different thinkers, different cultures, and different types of government. Furthermore, by comparing and contrasting the different theories of the rule of law, the author provides the reader with interesting insights into the meaning and significance of the different theories of the rule of law concept.

The author's discussion about the politics associated with different rule of law theories is not as strong as his historical survey of the rule of law concept, or his analysis about the competing theories about the rule of law concept. And, the author's discussion about the rule of law concept in international law has an uneven quality, marred by the author's tendency to criticize the United States and other Western countries for perceived failings in international law with little or no effort to criticize other countries for their role in such perceived failings.

Despite the weaknesses noted in the preceding paragraph, I strongly recommend this book for: (1) anyone interested in learning about the rule of law concept; and (2) anyone knowledgeable about the rule of law concept who is interested in considering a different perspective on the concept.