International Governance and Law
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International Governance and Law

State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.
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Chapter 3: Philip Selznick: Incipient Law, State Law and the Rule of Law

Martin Krygier


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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