RELOCATING THE RULE OF LAW. Ed by Gianluigi Palombella and Neil Walker Oxford: Hart Publishing (www.hartpub.co.uk), 2009. xv + 228pp. ISBN 9781841135977. £45.
| Published date | 01 May 2010 |
| Date | 01 May 2010 |
| DOI | 10.3366/elr.2010.0012 |
| Pages | 332-333 |
| Author | Kevin Walton |
The papers in this collection aim to contribute to the enduring and, apparently, ever more vital debate about the rule of law by shifting the dialogue to new sites. Although not all of these alleged “relocations” are convincing, the volume is generally provocative. By stimulating reflection on the meaning of legality, it effectively realises the principal goal of the editors, whose “motivating concern” when instigating the collaboration “was to discover whether we could identify a common thread running through [some] very different contexts of discussion and contention” (v).
Among the significant responses that this joint investigation prompts is doubt about its very object. Again and again, one queries the existence of a concept, of which increasingly (and, perhaps, inevitably) diverse references to the “rule of law” are rival conceptions and, as such, not mere rhetoric. One repeatedly questions the possibility of detecting in liberal-democratic societies a shared ideal of legality that might be applied to new situations. Several – the finest – of the papers grapple more or less directly with this prior difficulty of “location”. Indeed, it is the overt concern of the chapters by Brian Tamanaha and Gianluigi Palombella that comprise the first section of the book. According to Tamanaha, the rule of law simply demands law-bound conduct by both government officials and citizens. He briefly explores two functions, the main advantages as well as three necessary components (including, most notably, the hard-to-achieve need for a cultural belief in legal governance) of this “thin” definition, in the hope that its utility more than compensates for its lack of detail. His pragmatic methodology, to which some of the other contributors seem amenable, is rejected by Palombella, whose historical analysis identifies equilibrium between justice and sovereignty as the generally applicable, normative “core” of legality.
The second part of the book considers appeals to the rule of law in non-liberal, especially post-colonial and post-communist, societies. Martin Krygier, in his compelling paper, continues the search for a concept that gives meaning to these pleas. He claims to find it by implementing a “teleological” approach, which reveals a universal objective whose institutional...
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