Tamanaha, Rule of Law

Requirements:

1. Cultural Belief in Law

2. Independent Judiciary

3. Legal Profession and Tradition

Tamanaha, Rule of Law

Not Required, Nor Identical With:

1. Democracy

2. Morality

3. Human Rights

Sources of Law

•Natural Law•Customary Law•Statutory Law• Judicial Precedent

(Common Law)

Natural LawReligious conception, or at least theistic

(“endowed by their Creator”)

Pre-exists state, beyond human choice, and universal (“inalienable”)

Requires acceptance of premise and poorly defined (“these truths to be self-evident”)

Customary LawSpecific to a single society – not universal:

“the rights of Englishmen”

Fills in natural rights

due process comes to include jury trial

Often relies on invented history

“ancient constitution,” Magna Carta

Should be understood as tradition, not history

Statutory LawPrimary attribute is that it is clearly STATED

and thus created by the sovereignApplies only within single stateMay be foundational (Constitution) or ordinary (regular statutes or regulations)Governed by legislative intentSovereign may state law through its representatives

Judicial Precedent (Common Law)

Judge-made

Applies only within court’s jurisdiction

Non-democratic, may be countermajoritarian

Dependent on other forms of law, texts

Driven by specific, often insoluble conflicts between other stated norms which require innovative solutions

Mostly incremental, with few sudden changes