Academic

Tamanaha on Liberalism & the Rule of Law

By Lawrence Solum

Brian Z. Tamanaha (St. John's University - School of Law) has posted The Dark Side of the Relationship between the Rule of Law and Liberalism (NYU Journal of Law and Liberty, Vol. 33, 2008) on SSRN.  Here is the abstract:

Liberalism, democracy, and the rule of law are often thought to constitute a seamless unity, reflected in contemporary Western liberal democracies. That understanding, while not incorrect, does not tell the whole story. This article traces out a long historical pattern in which liberalism and the rule of law have combined to restrict the exercise of democracy. This pattern will be exposed by elaborating on four contexts: the shift in political theory from classical liberalism to modern social welfare liberalism; the shift from the common law to legislation as the primary source of law; resort to the rule of law by liberals from the eighteenth century to the present; and the contemporary implementation of neoliberal reforms in developing countries around the world. The article will argue that liberalism has enjoyed an opportunistic relationship with the rule of law, a relationship which has taken different forms over time, though repeatedly evincing an anti-democratic tendency on behalf of property rights.

This relationship is a source of skepticism about the rule of law, and harbors the potential to discredit the rule of law in the eyes of many around the world. This article lays out this "dark side" of their relationship in an effort to separate what the rule of law requires from what liberalism wants.

And from the text:

Those in the West who find solace in the fact that developing countries have thus far suffered the brunt of the aforementioned anti-democratic imposition of neoliberal reforms are perhaps unduly optimistic in thinking they have escaped a similar fate. This very same process, with similar anti-democratic tendencies, is taking place writ large around the globe as the imperatives of market capitalism increasingly dictate policies to national governments.124 The ?great transformation? Polanyi described involved the market coming to occupy the dominant organizing position within capitalist societies.125 We may well be witnessing the completion of this transformation, not just in the sense that every individual nation comes to be organized in this fashion, but in the further sense that the entire community of nations (the global order) is increasingly organized in the same terms. Liberal mechanisms and institutions functioning at the transnational level (for example, the World Trade Organization) are already coalescing into a de facto kind of ?economic constitutionalism? which, through the operation of the rule of law, constrains, overrides, and dictates to domestic law making in connection with liberal economic matters (affecting property rights, tariffs, subsidies, efforts to protect jobs). In the past, natural law, the common law, and constitutional provisions provided the controlling norms that were enforced by the rule of law. In the future, if current developments bear out, it will be unadulterated liberal economic norms that control world-wide. Liberals will view this prospect happily, but individuals and societies that prefer other values above (or equal to) material improvement will find it alienating and disempowering.

Highly recommended!

Full post as published by Legal Theory Blog on January 30, 2008 (boomark / email).