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.

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.

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.