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Copyright 2008 New York University Journal of Law & Liberty
NYU Journal of Law & Liberty

ARTICLE: The Dark Side of the Relationship Between the Rule of Law and Liberalism


NYU Journal of Law & Liberty

3 NYU J.L. & Liberty 516


Brian Z. Tamanaha


Like any political ideal, the rule of law is susceptible to different uses and has various potentialities and consequences, good and bad. On the positive side, the rule of law has made a "great contribution to human existence" in its capacity to hold governments legally accountable. 1 The rule of law, however, has a negative underside as well. A prominent strain within liberal thought utilizes the rule of law to unduly circumscribe political decision-making on issues relating to property and the market. Liberalism, this article will show, has a long history of aligning with the rule of law in a conservative and anti-democratic manner.

The rule of law, liberalism, and democracy are often thought to make a happy triumvirate, but their relationship, particularly with respect to democracy, is marked by antagonism. Constitutional restraints on legislation, which have an anti-majoritarian import, are the most obvious and familiar example of this. The tension generated when liberalism and the rule of law form a pair against democracy, however, extends deeper and broader than that. Its contemporary expression, as will be elaborated on later, can be found in the spread of neoliberal reforms around the world through the activities of international economic organizations, a phenomenon which has no obvious connection with constitutionalism (though has begun to resemble a form of constitutionalism).

The full scope and operation of this side of the rule of law and its relationship with liberalism is not easy to appreciate because it is not ...
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