On the Rule of Law: History, Politics, Theory. By Brian Z.
Tamanaha. Cambridge: Cambridge University Press, 2004. 188p. $75.00 cloth,
$29.99 paper.
Brian Z. Tamanaha reminds us that the rule of law is a near-universal
yet little-understood ideal. His 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. Tamanaha wisely argues that what is called the rule of law
is actually a family of doctrines. Crucial to it, on his view, are three
“themes” (p. 114): government limited by law, formal legality
(which “entails public, prospective rules with the qualities of
generality, equality of application, and certainty” [p.
119]), and a distinction between the rule of law and the “rule
of man” (p. 122). The theoretical core of the book deftly explicates
Friedrich Hayek's defenses and Roberto Unger's criticisms of
legal liberalism as a prelude to discussing the challenges of
indeterminacy and surveying a range of thinner to thicker formal and
substantive conceptions of the rule of law. Tamanaha analyzes the
strengths and weaknesses of each of these conceptions. These analyses are
intelligent and fair-minded; his own position is veiled, but suggests
support for a relatively thin substantive and relatively thick formal
conception (involving basic individual rights within a formally democratic
legal order), friendly to Hayek and not too bothered by the acknowledged
indeterminacy of legal rules.