Brian Z. Tamanaha reminds us that the rule of law is a near-universal yet little-understood ideal. His book presents a brief and clear introductory history and analysis that defends the coherence and value of the rule of law and that gives a sense of its global reach, limitations, and prospects. Tamanaha wisely argues that what is called the rule of law is actually a family of doctrines. Crucial to it, on his view, are three “themes” (p. 114): government limited by law, formal legality (which “entails public, prospective rules with the qualities of generality, equality of application, and certainty” [p. 119]), and a distinction between the rule of law and the “rule of man” (p. 122). The theoretical core of the book deftly explicates Friedrich Hayek's defenses and Roberto Unger's criticisms of legal liberalism as a prelude to discussing the challenges of indeterminacy and surveying a range of thinner to thicker formal and substantive conceptions of the rule of law. Tamanaha analyzes the strengths and weaknesses of each of these conceptions. These analyses are intelligent and fair-minded; his own position is veiled, but suggests support for a relatively thin substantive and relatively thick formal conception (involving basic individual rights within a formally democratic legal order), friendly to Hayek and not too bothered by the acknowledged indeterminacy of legal rules.

Although the book succeeds as introductory legal theory, which is its primary mission, it has serious failings as history and political theory. Tamanaha's early history is surprising in its dated and narrowly “Western Civ” approach. Rather than, for example, a discussion of comparative religion or empire, we meet obligatory Greeks (pp. 7–10), more apposite Romans (pp. 11–14), “Dark Ages” (p. 15), crucial medieval concerns engaged only to be diminished as “trappings” falling away with “the rise of reason and science” (p. 27), the “rise of the bourgeois” (p. 28), and a “liberalism” of the seventeenth and eighteenth (rather than nineteenth) centuries (p. 32). This does little to serve his account of the rule of law, which enjoys a better start with the discussions of A. V. Dicey and Hayek. Similarly curious is a legal-academic history marred by an oddly tendentious title (“Radical left encourages decline” [chap. 6, pp. 73–90]) and scant or missing treatments: Feminist and critical race theory are given a total of a sentence and a half (pp. 85, 86), and the book contains no mention at all of the law and economics movement. The latter—through its transformation of legal subjects into scientifically reckonable actors and its consequent reinterpretations of rules and justice—arguably presents a more institutionally powerful threat to Tamanaha's legal liberalism than the positions he examines.

Political theorists will be perplexed by the identification of communitarianism as the “antithesis” of liberalism (p. 42), and troubled by the only sporadic treatments of sovereignty and the modern state. The author takes sovereignty for granted, and although he very much recognizes “the age-old question of how—or indeed whether—the government can be limited by law when it is the ultimate source of law” (p. 28), he does little to explore the paradoxes generated by familiar conceptions of politics as sovereignty. His treatment of the growth of the administrative state-as-welfare state shows his concern with the expansion of executive and judicial power and the blurring of law and policy (e.g., p. 72). Missing altogether, however, is any treatment of another dimension of security, the growth of the warfare state (sizable enough today to house many thousands of captives in legal limbo, including a U.S. citizen apprehended in Chicago). This omission does not stem from any aversion to contemporary commentary; the book's penultimate chapter discusses the global prospects of the rule of law, and gives voice to legal worries about the U.S.'s Realpolitik rejection of new international institutions (p. 130). Tamanaha's oversight regarding security is theoretically as well as politically significant. When he attempts to assess global rule of law in light of his first theme, “limited government,” he fails to notice that government would in this arena be limited if at all from above, as it were, rather than from below (pp. 129–31). The blitheness of the disanalogy betrays a lack of engagement with the only apparently extrajuridical content of the sovereignty he assumes, and with law's complex relationship to the violence it appears to constrain. For such an engagement, important to a more political-theoretical reflection on the rule of law, one might look instead to Giorgio Agamben's (2005) State of Exception.

Such criticisms should not distract too much from this book's virtues, however. Tamanaha is clearly a sophisticated institutionalist, and On the Rule of Law offers valuable insights. Although the book is generally optimistic about the character and prospects of the rule of law, it is perhaps at its best when delivering various caveats and cautions. The author urges us not to overload our definition of the rule of law and expect too much from it, and to recognize that its practice relies on a convinced and critical citizenry and a strong legal profession. He warns us further that the latter requirement, however necessary, is at the same time a source of danger, because of consequences ranging from the judicialization of politics to the rule of experts to legal imperialism. Ultimately, Tamanaha shares the constructive skepticism of Jeremy Bentham, whom he follows in noting that its “position … renders the legal profession … uniquely situated to undermine the rule of law” (p. 59). Recent events have only confirmed such worries about the rule of law, and about the work that might be done in its name.