State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 3: Philip Selznick: Incipient Law, State Law and the Rule of Law
Martin Krygier* 1. INTRODUCTION If celebratory rhetoric is to be believed, or money devoted to a cause regarded as a sign of its success, ours is the era of the rule of law. No one will be heard to denounce it, leaders of countries all round the world claim to have it, vast sums are spent to spread it. But how is that to be done? Typically, programmes of rule-of-law promotion focus on state agencies, particularly legislatures and courts. Laws are enacted, judges trained, computers bought, libraries stacked with books, and still, far from atypically, the results are disappointing (see, for example, Carothers 2006; Jensen and Heller 2003; Krygier 2006, 2007). This identiﬁcation of the rule of law with state law is not news, nor should it be surprising. Lawyers, legal philosophers and political theorists, not to mention ordinary folk looking to ﬁnd law (or evade it), typically start with oﬃcial emanations of state agencies, primarily legislatures and courts. They consider links between law and state to be intimate, unseverable, uncontroversial and exhaustive of the law. Lively questions might remain about the point of law, whether these are descriptive questions – what does law do? – or normative ones – what should it do? – but rarely about its proper location or source. These, it is assumed, are in centralized and legally co-ordinated oﬃces of state. Lawyers know that law aﬀects society and some are aware that reciprocal eﬀects also occur, but their expertise rarely extends that far. For...
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