by Gianluigi Palombella and Neil Walker (eds). Oxford, UK and Portland, OR: Hart Publishing. 2009. 244pp. Hardcover. $95.00/£45.00. ISBN: 9781841135977.
Reviewed by Chin-Shou Wang, Department of Political Science and Graduate Institute of Political Economy at National Cheng Kung University in Taiwan. Email: wangc [at] mail.ncku.edu.tw.
This book contains a collection of papers from an interdisciplinary group of scholars from around the world. Besides a short introduction, it consists of twelve chapters divided into three parts: “The Rule of Law: An Elusive Concept?”, “The State of the Rule of Law State,” and Part Three, “The Wider Frontiers of the Rule of Law: European and Global Perspective.”
Part One addresses the elusiveness and the elementary structure of the rule of law. Part Two discusses how the social, political, economic, and cultural configurations of states respond to programs which regard the rule of law from other countries and international organizations. It also discusses the development of the rule of law by the states themselves. Part Three has a more challenging goal for which the authors try to search out the rule of law in supranational context and international law.
Part One has two chapters. “A Concise Guide to the Rule of Law” was written by Brian Tamanaha. This paper discusses definition, function, benefits and elements of the rule of law. It gives readers a clean and easy way to comprehend the topic. Tamanaha gives a “thin” or “formal” definition of the rule of law. His definition is also used by other authors in this book. The content of this paper mostly comes from Tamanaha’s book, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (Tamanaha 2004). The second chapter, “The Rule of Law and its Core,” was written by Gianluigi Palombella, who takes a different approach. He does not try to define the rule of law. Instead, he tracks the historical trajectory of the development of the rule of law in different continental European countries. To Palombella, “the meaning of the rule of law depends on an enduring continuity with its own past” (p.26).
The first chapter in Part Two, “The Rule of Law: Legality, Teleology,” was written by Martin Krygier. His approach is very similar to Palombella’s. Both of them emphasize not only the development of the idea but also social and political structure. It is interesting to note that they come from interdisciplinary academic backgrounds (philosophy and law). This may let them look beyond the laws. Unlike many scholars, Krygier starts with the function, instead of the form, of the rule of law. He argues “So a universal, institutional-based, answer to what the rule of law is, is implausible” (p.47). According to Krygier, it is more important to emphasize the social complexity of a nation, rather than its institutions. [*10]
Rezata Uitz wrote the second chapter in Part Two, “The Rule of Law in Post-Communist Constitutional Jurisprudence: Concerned Notes on a Fancy Decoration.” Uitz assesses key decisions made by constitutional courts of post-communist countries. Although the rule of law as a term has become a familiar part of everyday life, “it is a fancy rhetorical decoration used to detract attention from material and structural flaws of ships rebuilt and patched up on the open seas” (p.73). It means that different constitutional courts use the same rhetoric regarding the rule of law to justify their different decisions.
The third chapter in Part Two is “Law’s Golden Rule” written by David Beatty. Although Beatty warns that sometimes western countries did not commit to the rule of law with a full heart, he is more positive on the development of the rule of law than the other authors. Beatty argues that the principle of proportionality is a rule for resolving conflicts. It could be a perfect guide to deal with disputes. “It is the law’s version of the golden rule” (p.103). If the principle of proportionality is followed, it might be easier to develop the rule of law.
The first chapter in Part Three is “The Rule of Law and the EU: Necessity’s Mixed Virtue,” written by Neil Walker. Walker first classifies the functions of the rule of law into five dimensions, namely regulation, authoritarian, instrumentalisation, identification, and promotion. Then, he discusses the development and conditions of the rule of law in the EU, where he finds it to be very powerful. However, he also claims that the development of the rule of law in the EU is very diverse. A notable finding in his paper is that “the more indispensable the rule of law becomes to certain tasks, the more inadequately equipped it can appear” (p.132). The rule of law can thrive easily if it gets direct support from cultural sensitivity which may differ among various national communities and histories.
The second chapter in Part Three, “Can a Post-Colonial Power Export the rule of Law? Elements of a General Framework,” was written by Rachel Kleinfeld and Kalypso Nicolaidis. The authors examined what and how the EU can export the rule of law to other countries. They observe tension between avoiding the charge of interference into affairs of other states, on the one hand, and using economic and diplomatic power to encourage other countries to pursue the rule of law, on the other. Although there are several ways the EU could export the rule of law, including direct development aid, direct diplomacy, indirect development aid, and indirect diplomacy. However, there is no best strategy for the EU to export the rule of law to particular states.
In the third chapter, “Has the ‘Rule of Law’ become a ‘Rule of Lawyers’? An Inquiry the Use and Abuse of an Ancient Topos in Contemporary Debate,” Friedrcih Kartochwil shares a close viewpoint with Palombella and Krygier. He argues that law is a culturally and politically specific product of meaning. If one lets lawyers and technocrats define the rule of law, he or she will lose the meaning of democracy and culture. “Here the word has, for all intents and purposes, became a ‘shop,’ and ‘persons’ are not only ahistorical and prepolitical entities but little more than ‘consumers’”(p.196). [*11]
The final chapter is “The Rule of Law in International Law Today,” written by Stéphane Beaulac. He uses the definition of the rule of law offered by Tamanaha to measure the reality of the rule of law in the EU. His findings and conclusions are very positive and optimistic. The rule of law in international law has been really successful, according to Beaulac.
In summary, this is a book with great ambitions. It would like to address three independent but related issues: to redefine the rule of law, to search for ways to build the rule of law, and to discover and apply the rule of law in international law.
Unless a new concept of the rule of law exists, it is not easy to understand the challenges to the development of the rule of law in national politics and international law. This book properly meets the need to respond to the changing conditions of the rule of law around the world. It should be of interest to any scholar who cares about the global development and the future of the rule of law. The collection also gives some new directions to reconsider the rule of law.
Friedrcih Kartochwil, Gianluigi Palombella, and Martin Krygier emphasize the importance of political, cultural, and social structures of individual nations. Unless local societies are better understood, it is difficult to develop the rule of law in a society. Not only new ideas about the rule of law, but also more studies on law and society should be encouraged.
Tamanaha, Brian Z. 2004. ON THE RULE OF LAW: HISTORY, POLITICS, THEORY. Cambridge: Cambridge University Press.
© Copyright 2010 by the author, Chin-Shou Wang.