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. This identification of the rule of law with state law is not news, nor should it be surprising.
These observations are perhaps all truisms, but they are often ignored. We still await a sociology of the rule of law, while in the meantime we pour huge sums of money into inadequately grounded, if well meant, attempts to deliver it. Were we to seek such a sociology we would not have a huge number of sources. One place to start is the work of Philip Selznick. That recommendation is at large, and even in relation to this subject could refer to much of Selznick’s work. In this essay, however, I will focus primarily on one book that raises these issues most centrally: Law, Society, and Industrial Justice. It has nothing specific to say about how to implant the rule of law in societies that lack it and have been little acquainted with it. However, those with such ambitions might well pause to attend to the sociological complexities this work reveals in a relatively modest proposal: to generate the rule of law in a well regulated domain of life, industrial relations, in one of the most rule of law rich countries in the world, the United States. Their reliance on state law, and ignorance of non-state law, might then come to acquire some recalibration. In a world full of lawyers and policy advisers propagating state-centered institutional recipes for the rule of law, and then affecting disappointment that benighted beneficiaries still violate or deliberately ignore it, a reminder of the complexity of non-state conditions for the rule of law might be salutary.
Public Law and Legal Theory
Date of this Version
Martin Krygier, "Philip Selznick: Incipient Law, State Law and the Rule of Law" (November 2007). University of New South Wales Faculty of Law Research Series. Working Paper 68.