Sanne Taekema (Erasmus University Rotterdam (EUR), Erasmus School of Law) has posted The Promise of the Rule of Law Ideal (Forthcoming in: Paul van Seters (ed.) The Anthem Companion to Philip Selznick, London: Anthem Press (August 2021)) on SSRN. Here is the abstract:
Two of Philip Selznick's key contributions to socio-legal studies is his theory of the rule of law and his idea of law as a normative system oriented towards a master ideal. In this chapter the combination of these two is explored by investigating the ideal of the rule of law in Selznick's work. Selznick draws attention to the dual nature of the rule of law: something that can be seen as a basic fulfilment of institutional criteria to prevent arbitrariness and as something that demands a commitment to realizing larger values such as equality and dignity. The duality of 'baseline' and 'flourishing' aspects of the rule of law raises the question how they relate: How can the different aspects and conceptualizations of the rule of law be connected in such a way that the rule of law can best serve its function as a standard for conduct? In this chapter I attempt to answer this overarching question by reconsidering Selznick’s writings on the rule of law in connection to the work of another great legal theorist with pragmatist leanings, Lon Fuller.
In the chapter, I first discuss the background and basic elements of Selznick’s theory of the rule of law as a contextual, ideal-oriented account. I then go on to compare the ideas of Selznick and Fuller on the dual nature of the rule of law concept. In the next section, I discuss the problem of pursuing an affirmative rule of law ideal and its potential in more detail. In the final section, I consider applications of this rule of law theory in the present world by discussing two examples. The first is drawn from literature on the global rule of law in the context of development projects, the second discusses a local political issue in the Netherlands concerning the administration of child care benefits. I argue that both examples show the added value of Selznick’s broad rule of law theory.