Krygier, Martin --- "Philip Selznick: Incipient Law, State Law and the Rule of Law" [2008] ELECD 305; in van Schooten, Hanneke; Verschuuren, Jonathan (eds), "International Governance and Law" (Edward Elgar Publishing, 2008)

Book Title: International Governance and Law

Editor(s): van Schooten, Hanneke; Verschuuren, Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207272

Section: Chapter 3

Section Title: Philip Selznick: Incipient Law, State Law and the Rule of Law

Author(s): Krygier, Martin

Number of pages: 25

Extract:

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, com-
puters 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 ...