Brian Z. Tamanaha - On the Rule of Law

If on occasion you happen to tune into political discussions on the radio, catch the blathering of new correspondents and pundits on television or read discarded newspapers in coffee shops, you have no doubt encountered numerous incantations concerning the rule of law. However used, the rule of law has become a buzz phrase, entrenching itself within the vocabulary of all who feign even the remotest interest in political and legal theory. In fact, the rule of law has been so widely endorsed that its support has been described as “a feat unparalleled in history” (3). Widespread global acceptance notwithstanding, ignorance abounds. Despite being “the preeminent legitimating political ideal in the world today” (4), there is little agreement as to what rule of law means. “Few government leaders who express support for the rule of law, few journalists who record or use the phrase, few dissidents who expose themselves to risk of reprisal to its name, and few of the multitude of citizens throughout the world who believe in it, ever articulate precisely what it means” (3). Additionally, homage to the rule of law is not restricted to Western, liberal or democratic states. Iran, China and Zimbabwe have explicitly acknowledged the value and importance of the rule of law. The resulting confusion is the impetus behind Brian Tamanaha’s On the Rule of Law.

Admittedly, the rule of law is a concept that largely eluded my understanding during law school. (Perhaps there is value in attending classes and reading assigned material!) While I was familiar with the concept and its implications, were I to be asked to articulate a working definition I would have simply stammered. Even if I were to have the presence of mind to comment on how rule of law was an overarching principle that governed the governing, I likely would have struggled with any further explicatory attempts. As my graduate studies in law progressed so did my understanding; however, my ability to communicate cogently continued to flounder. I was having particular difficulties articulating what the rule of law’s implications for the legitimacy of public health law. Were this not crucial to my dissertation perhaps I would not have been so distressed. Enter Tamanaha.

Presently, I am confident that I could articulate a constructive understanding of rule of law. In large part I owe this to Tamanaha, who traces the historical development of rule of law, clearly differentiates between formal and substantive theories and identifies recurring themes in the rule of law tradition. What is particularly helpful about Tamanaha’s approach is the recognition that there is no agreement or certainty. Despite my own dissatisfaction with how Tamanaha deals with some of the uncertainty (which will be the subject of further exploration below), it is nevertheless refreshing that the discussion is not distracted by false declarations of absolutism.
The first half of the book is comprised of a historical discussion, starting with the Greeks and Romans and continuing to contemporary commentators. For those with little to no familiarity with rule of law theory, the major players soon become evident: Mill, Locke, Montesquieu, Constant, Hayek, Unger – and other (mostly dead) rich white men. Although I do not wish to adopt a hermeneutic of suspicion of all things emanating from rich white men, is the rule of law’s association with economic liberty at all surprising? Economic liberty, surprisingly, is not explicitly discussed. It is surprising because Tamanaha does spend considerable time discussing liberty in the text as, “the rule of law today is thoroughly understood in terms of liberalism …. [and a]bove all else liberalism emphasizes individual liberty” (32). Four themes of liberty are identified: political liberty, the self-rule of individuals; legal liberty, the freedom from coercion and legal interference; personal liberty, restricting the government from infringing on personal autonomy; and institutionalized preservation of liberty, preventing any accumulation of total power.

Economic liberty would undoubtedly fit within several of these broader themes but, given its prominence elsewhere in the text, it would undoubtedly been advisable to incorporate it as its own theme. Economic liberty can be subsumed under personal liberty and legal liberty; after all, these themes prevent interference with how individuals choose to live their lives, including how they decide to use their resources. Notwithstanding this, it seems to me that economic liberty also allows for another level of freedom: namely, for those that have economic means to enjoy privileges and benefits otherwise unavailable. In addition, economic liberty extends beyond individual autonomy to include institutions, associations and, of course, businesses. Similarly, economic liberty seems to stretch the notion of legal liberty by doing more than simply preventing coercion and interference by erecting economic safeguards and legislations that helps to maximize the creation and preservation of wealth – read: liberty. I cannot help but remain suspicious that, in discussing liberty, the real concern is not to allow the indigent to make autonomous decisions. To be sure, the liberty of all buttresses the arguments made by the few, but the sincerity is questionable. Especially when one begins to identify the “barriers” to liberty often discussed. We are wise to be reminded: “the liberty of the strong, whether their strength is physical or economic, must be restrained.”[1]

Despite not treating economic liberty as an independent theme, Tamanaha does not shy away from the association between economics and liberty. As he notes, “the liberty championed by liberalism is substantially played out in the economic arena” (44). He further acknowledges a blending of liberalism and capitalism. This is not an uncommon understanding of rule of law. As Tamanaha notes, for Friedrich Hayek “[c]apitalism, liberalism, and the rule of law are thus tightly wrapped together” (97). For Hayek this means that the rule of law is unable to operate in the social welfare state. Tamanaha recognizes that there are those who would contest this notion, particularly those he identifies as being on the “radical left.” From this position, rather than liberty for all, “liberalism liberates some – those with economic power – to dominate others – those without” (75). Thus, liberalism is not conceived of in terms of neutrality, but in economic elitism. While Tamanaha does not completely reject this point of view, given how he frames the themes of rule of law, there is little question that he does not embrace this view. While I certainly will not be able to settle the ongoing debate about the role of economic liberty in discussions about rule of law, I do think that one’s perspective is critical to how they define and understand rule of law.

Tamanaha differentiates between the substantive and formal views of rule of law. A formal understanding of rule of law does not render judgments on the actual content of the law, but is instead concerned with the way the law is promulgated; in other words, the source and form of law. The substantive view is concerned with the content of law, with formal attributes and rights. Within each Tamanaha identifies “thinner to thicker accounts,” the latter have more requirements than the former. At its thinnest, it is the notion that the state should conduct its through laws; in other words, rule by law. It is a position that does not speak to limitation on government, “the sine qua non of the rule of law tradition” (92), and thus is compatible with authoritarian regimes. While slightly more rigorous, the formal legality conception of rule of law (the favoured conception by Western legal theorists, observes Tamanaha) is equally devoid of any notion of what makes good or just laws. It speaks, rather, to law’s ability to guide behaviour. Thus rule of law requires that the law be “prospective, general, clear, public, and relatively stable” (93). The likes of Raz, Fuller and Hayek have espoused various formulations of rule of law as formal legality. Rule of law, then, is held to further autonomy and dignity, as it allows people to plan their activities with an understanding in advance of the legal implications. I think “people” is used here explicitly (94), as it is clear that the benefits conferred by the formal legality conception of rule of law serves to benefit more than individuals but also legal persons (read: business). This version imposes on procedural requirements, with no commentary on the substantive aims of law. What is interesting is how this has come to be understood. For example, as Hayek has noted in The Constitution of Liberty, the quantity of legislation should not be of concern for those who adhere to this understanding of rule of law, provided of course that the legislation in question conforms to the requirements of formal legality. Yet, it would seem, that the formal legality version of rule of law is often used to speak to substantive matters. The final formal version concerns democracy. Again, the substance of the law is not determined, but only the process (democracy) of determining the content of law.

A formal understanding is, arguably, the view adopted most by those whom I would place within the ‘economic liberty’ camp and the view that Tamanha attributes to the majority of Anglo-American legal theorists (92). This makes sense, given that a formal understanding does not promote specific aims but rather promotes individual autonomy. Thus, rule of law is “indifferent toward the substantive aims of the law and is ready to serve a variety of … aims with equal efficiency” (94). If rule of law were to be understood substantively, it is argued, it would require the government to effectuate measures to promote various aims, such as distributive justice, which in turn would undermine individual liberty. Substantive versions of rule of law necessarily incorporate elements of formal rule of law and simply add specific content. At its thinnest it involves individual rights and at its thickest social welfare. The result, Tamanaha’s observes, is that “[t]he rule of law … serves as a proxy battleground for a dispute about broader social issues, detracting from a fuller consideration of those issues on their own terms, and in the process emptying the rule of law of any distinctive meaning” (114). While I am not entirely convinced by his claim that substantive understandings of rule of law empty rule of law of distinctive meaning, I am willing to accept that the proper understanding of rule of law is formal. In part, formality may help to restrict the economic calculus used to interpret rule of law. While my hypothesis may prove fatal, if rule of law is formally understood it may in fact impede the substantive aims of the economic elite. Part of my discontent with arguments around rule of law has been the shrouding of substantive understandings as formal. At the same time, however, it is recognized that formal understandings tend to benefit particular classes of individuals, particularly property owners (122).

Tamanaha identifies three recurring themes in rule of law that are helpful in explaining what rule of law actually means. Each will be explored briefly.

(1) Government limited by law
The idea of limiting the power of government has already been identified above as the sine qua non of rule of law. Restraining government tyranny, Tamanaha notes, has long pre-existed the idea of individual liberty (115). At its core, it holds that government is not only bound by law but also have restraints on their law-making power. While the former can be circumvented, by government amending laws so they it will not stand in their way, the latter stipulates that there are certain things a sovereign can never do (118). In modern liberal states, bill of rights are often understood as limiting government’s power. That bill of rights can be understood as either substantive or procedural, and in some instances both, is a curious fact. How bill of rights are conceived undoubtedly are a reflection of preexisting political assumptions. Embracing rights as procedural helps to guarantee them and yet at the same time denies them the opportunity to substantively inform the legislative process. Perhaps this is why I often feel that debates about rights are schizophrenic.

(2) Formal legality
As noted above, substantive rule of law incorporates elements of formal rule of law. Thus, it is not surprising that a common them of rule of law concerns formal legality. To reiterate, it speaks to the form and procedure of determining the content of law, not the substance. This theme is favoured by legal theorists and, as noted by Tamanaha, “the dominant understanding of the rule of law for liberalism and capitalism” (119). He notes: “… public, prospective laws, with the qualities of generality, equality of application, and certainty, are well suited to facilitating market transactions because predictability and certainty allows merchants to calculate the likely costs and benefits of anticipated transactions. A growing body of evidence indicates a positive correlation between economic development and formal legality that is attributable to these characteristics” (119). What I find disconcerting is that formal legality, which may indeed lend itself to facilitating market transactions, is often deemed as a means of ensuring and protecting markets. That is, formal legality is often championed not as an end in itself but as a means of vitalizing the market. What response would be had if the incidental effect of formal legality actually impeded markets? Formal legality incidentally enhances market transactions, but this should not result in an interpretation of formal legality as a mechanism to promote markets. While the difference may be subtle, it is often difficult to determine why formal legality is held in such high regard. Surely autonomy and dignity has a more profound meaning than the market! If rule of law is thought to enhance markets, is the association between rule of law and economic liberty at all surprising? Likewise, the retort to rule of law by the economic elite, particularly in response to distributive justice, becomes transparent and explicable.

(3) Rule by law, not by man
The last theme is grounded upon a fundamental distrust and fear of others. “The inspiration underlying this idea is that to live under the rule of law is not to be subject to the unpredictable vagaries of other individuals” (122). Abuse is inherent in power, particularly power to rule others. The difficulty, of course, is that humans inevitably rule because “laws are not self-interpreting or applying” (123). The judiciary, and consequently judges, play a vital role; “the judge becomes the law personified” (123). Hence the ideal judge is one who is unbiased, impartial, neutral, free of passion and loyal only to the law. It is also the impetus behind the independent judiciary. Such a judge is a fictitious character. Tamanaha notes the danger of rule of law becoming rule by judges (124). In spite of the danger, he notes that the world over there are government officials and judges who, rather than subjecting individuals to their whim and fancy, are complying with their duty to apply the law. Of course, the law typically favours the wealthy and the privileged and, even where it may not, access to the law is disproportionately available to the wealthy and privileged. As a consequence, rule by law may be perceived as the source of abuse and the reason for distrusting others in the first place, although I will not explore the merits of this argument here. That judges are almost exclusively from a single class, are usually appointed by like-minded partisan officials, are human beings and thus are likely to encumbered with bias and passion, and no doubt judges have ulterior loyalties whether to individuals or principles. Perhaps it would be better stated: rule by law by man.

A sentiment often quoted concerning the rule of law is from E.P. Thompson, a Marxist historian (a point not often overlooked), that the rule of law is an unqualified, universal good. As Tamanaha notes, Thompson discovered “the ideology of being bound by the law had a restraining effect on those effect on those with power, whether the monarchy or the wealthy” (137). He further notes, “[a]s complicit as law often was in perpetuating domination and inequality, Thompson nonetheless found that ‘the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good’” (137) [2]. Tamanaha qualifies this by suggesting that rule of law should always be evaluated from the standpoint of justice and the good of the community (141). I am willing to acknowledge the benefit of rule of law, but certainly there can be no unqualified goods. The rule of law certainly may benefit humanity in some respects (and in many respects for some), but as an ideology it is predicated upon assumptions (often unspoken) that need further exploration. Included are assumptions about the good of markets and capitalism, the nature of humanity and human relations and the meaning of rationality and free choice. Notions such as these should not be haphazardly dealt with or be subject to discussions rife with anecdotal examples and propositional statements. Unfortunately, the underlying issues are often treated as truisms and not controversial issues that, if subject to further inquiry and discussion, would shed new light on rule of law.

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[1] Isaiah Berlin, recounting Tawney, in I. Berlin, Two Concepts of Liberty (Oxford: Clarendon Press, 1958) at 55.

[2] See E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975) at 266.