Kuhn’s intent had been to apply this analysis only to “hard science,” but it was not long before practitioners of the social sciences picked up the idea and began applying it in their fields. Professor Geyh admits that he has borrowed selectively from Kuhn. He comments that sociological paradigms are “templates of interaction between law, society and culture with descriptive, normative and aspirational  elements that affected communities follow” and it is in that context that the rule of law must be analyzed.

Appropriately, Geyh begins his analysis with a history of the development of the rule of law paradigm by pointing out that it “has operated as a dominant sociolegal paradigm in western thought for millennia,” beginning with the Greek philosophers, including Plato and Aristotle, and followed by Cicero in Rome. Disappearing for a time, it was raised again in the European Renaissance and Enlightenment, acclaimed by Blackstone, and then picked up by James Madison in writing the U.S. Constitution, and by Alexander Hamilton in the essays he wrote for The Federalist Papers in support of the adoption of that Constitution. As a result, in the modern era the bench, bar and those with interest or stakes in the legal system “have taken the lead in developing and defending the rule of law architecture”.

The book notes that President Obama is the latest in a list of presidents who have invoked the rule of law paradigm; the President promised the day after his inauguration that “transparency and the rule of law will be the touchstones of my presidency.”

Despite the ubiquitous recognition of the paradigm throughout the United States, Geyh’s thesis is that in reality it is becoming less and less valid as a description of what judges actually do, as more and more observers, including legal scholars and scholars in the social sciences, believe that judges do not just apply the law to issues in case, and that they are influenced by outside forces and factors in their decision making. Gehy writes that “social science confirms what court critics suspect: Judges are subject to an array of extra legal influences which shows that the premises underlying the rule of law paradigm are exaggerated, if not counterfactual.” The two extremes in the controversy are the legal establishment, which claims that “the law means everything to judges, and court critics who claim that law means nothing to judges….” His thesis is that there is a better response, a “middle course,” a new legal culture paradigm.

The legal culture paradigm proposal is based on five propositions:

First, judges are immersed in a legal culture that takes law seriously. Second, pervasive legal indeterminacy requires judges to exercise judgment and discretion with reference to policy considerations that bring legal and extra legal considerations to bear. Third, judicial independence buffers judges from from external interference with their acculturated predisposition to follow the law as they construe it to be written, respect procedural safeguards and administer justice. Fourth, because unfettered  autonomy can liberate judges to flout the objectives independence seeks to further and pursue their own agendas, the legal culture paradigm contemplates a robust role for judicial accountability and oversight, relative to the rule of law paradigm. Fifth, accountability and oversight in the legal culture paradigm operates in three distinct dimensions.

The three distinct dimensions referred to above are an adjudicative dimension, a political dimension, and an ethical dimension. Geyh explores the nature of this new paradigm, in a chapter specifically devoted to it, which includes a careful examination of the three dimensions referred to above.  Two successive chapters developing his thesis are titled Conceptualizing the Dimensions of Judicial Oversight and Explanations and Prescriptions.

In his conclusion, the final chapter, Gehy sums up his discourse by the listing of six basic points of the book, beginning with thorough discussions about the rule of law paradigm, continuing through a description of the legal culture paradigm and a discussion of why it is worthy of consideration as a substitute. There is then a declaration that while the judiciary in the United States is not yet in a state of crisis, there is a need for introspection and inquiry among judges and jurists about alternatives to the worn out rule of law paradigm, so that a more suitable one can eventually take its place.

Professor Gehy, as shown by his biographical sketch, has been deeply involved in the study of the judiciary for 25 years. He has authored books and a great many articles relating to the law, judges, and courts. He understands the forces at work in American society that have the potential for playing havoc with the third branch of government. It is imperative that both judges and legal scholars examine and discuss his proposals while there is still time for careful and in depth deliberation. This book, well written and well presented, can serve as a guiding light for such meetings and discussions.