This Chapter explicates, explores, and commends Patrick Glenn’s choice to recognize and emphasize... more This Chapter explicates, explores, and commends Patrick Glenn’s choice to recognize and emphasize the significance of tradition, his master concept for understanding law, in the workings of all legal orders. However, it does not share the evangelical enthusiasm that Glenn suggests should flow from this recognition. That enthusiasm is based, I argue, on a quite idiosyncratic and contestable conception of what traditions ‘truly’ involve, absent contingency or corruption. Without his excessively sunny conception of the nature of tradition as its foundation, however, a lot of the ‘conciliatory’ hopefulness so winning in Glenn’s writings seems to rest on shifting and uncertain ground. In particular, while Glenn notes that traditions are normative, he does not follow through the implications of this normativity.
Why have Kaczyński in Poland and Orbán in Hungary found so apparently easy what Donald Trump, who... more Why have Kaczyński in Poland and Orbán in Hungary found so apparently easy what Donald Trump, whose power and ambitions are not small and whose motivations appear to tend in similar directions, finds so hard: to overwhelm and take over independent institutions that were hoped by many to be able to temper power? The chapter suggests that a fundamental part of the answer stems from a specific failure of understanding—of the significance of institutionalization—among those who led the optimistic projects of the 1990s that now seem to be unravelling at speed. Next, it argues that their populist opponents have unfortunately displayed a better awareness in these matters. Finally, it suggests some responses that lawyers might and are right to make to the onslaughts they face. In this struggle, the efforts of lawyers are not sufficient, because the crisis is fundamentally social and political, but they are necessary.
University of New South Wales law journal, Dec 1, 1983
Review(s) of: Hugh Collins, Marxism and Law, Oxford University Press, Oxford. 1982, pp.v-viii. 1-... more Review(s) of: Hugh Collins, Marxism and Law, Oxford University Press, Oxford. 1982, pp.v-viii. 1-159 with Select Bibliography and Index, ISBN 0198760930. Includes footnotes.
ABSTRACT According to Dr Johnson, 'when a man knows he is to be hanged in a fortnight, it... more ABSTRACT According to Dr Johnson, 'when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.' Wondering whether you might be attacked by terrorists seems to have similar, if not always wonderful, effects. Certainly it concentrates, or at least galvanises, the minds of governments. Ours is no exception. From a standing start in 2001, when we had no national laws specifically dealing with terrorism, we have now enacted over forty-five. There are laws defining, often in very broad terms, what will count as terrorist crimes, organisations, membership, advocacy, financing. Even without another attack, counter-terrorist activity will not stop there or soon. And when, not if, such an attack occurs, the pace will no doubt quicken again, particularly if the attack is spectacular or novel in any way, all the more so if it happens here. The pressure to be seen to 'do something' about unpredictable and deliberate acts of murderous destructiveness will never be resisted by democratic governments. Some will see this as a responsibility of their office (and if it isn't, it is hard to see what is), others as an opportunity for exploitation, but every government will do something. The question is whether it is the right thing. In debates around responses to terrorism, four terms constantly recur: terrorism itself, war, balance, and the rule of law. This article is organised around those terms. My concern is with things, not words; but what we think about things is closely connected to what we call them.
Lawyers, legal philosophers and political theorists, not to mention ordinary folk, typically cons... more Lawyers, legal philosophers and political theorists, not to mention ordinary folk, typically consider links between law and the state to be intimate, unseverable, and uncontroversial. Lively questions 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 institutionalized, centralized, and legally co-ordinated offices of state. The major contribution of law and society studies to this discussion might be called cartographic. Researchers in this area have cast doubt on the common assumption that law and state need always be thought of as fused, like Siamese twins, as in the communist theoretical couplet, "theory of state and law." For at least a century, attempts have been made to decouple the apparently obvious and necessary connections between state and law and to produce accounts of the nature, place, and functions of law in society, accounts that include the state but 'de-center' it. Not everyone believes this detachment of law and state is a good idea, but it is a paradigmatically sociological idea.
8 officials were the king's servant, not the nation's. Second, as a result of the widespread vena... more 8 officials were the king's servant, not the nation's. Second, as a result of the widespread venality of public offices, government poststhough, as Tocqueville emphasizes,^ not those of the Intendant and his subordinates-were quite literally the private property of royal officials. France's finances, for example, were in the hands of: private businessmen and the Crown could control them only by occasional legal process, not by continuous administrative direction. __ The aristocratic society of the ccneien regime inevitably undermined all general laws and regulations because privileges, graces, favours and marks of distinction consisted in person al exemptions and exceptions. We know this best, perhaps, in the field of taxation, where any general law merely gave the Crown fresh opportunities for awarding exemptions. But in every other field, too, the personal, the idiosyncratic, or what in America today would be called the 'individualistic' ^ always prevailed over the general law and the general interest. The French Revolution changed this situation dramatically, in public consciousnesss and to a great degree in fact; it was a profoundly significant landmark in what Barker calls the 'disengagement' of the State. No longer the King's servants, public officials came to be regarded as servants of the nation, that nation which, the Declaration of the Rights of Man and of Citizens had proclaimed, was 'essentially the source of all sovereignty; nor can any individual or body of men be entitled to any authority which is not expressly derived from it'. Moreover, as Bosher emphasizes,^ French officials began to form a 'bureaucracy' in a modern sense: they became public servants who were paid regular salaries by, and were answerable to, the state.
Review(s) of: Understanding Marxism: An approach through dialogue, by W . H. C. Eddy, with an int... more Review(s) of: Understanding Marxism: An approach through dialogue, by W . H. C. Eddy, with an introduction by Eugene Kamenka, Edward Arnold, Melbourne, 1979, ISBN 0 7267 2 28 3.
Research in the sociology of organizations, Mar 28, 2015
ABSTRACT Philip Selznick died in 2010, at the age of ninety one. His writings spanned some sevent... more ABSTRACT Philip Selznick died in 2010, at the age of ninety one. His writings spanned some seventy years, only the first fifteen of which were occupied directly and primarily with organizational sociology. Though organizational issues didn’t vanish from his work, and were central in one later book, he moved to other fields, notably sociology of law, but also industrial sociology and social and public philosophy. Moreover, his view of sociology was, as he put it, 'ecumenical', and his subjects were many. Selznick’s intellectual character and sensibility deserve attention in themselves. Many of these elements were apparent from the beginning, and so, anyone interested in Selznick’s cast of mind, over and above the particular works it generated, must start early. And so I will.In this article, I draw primarily on some of Philip Selznick’s earliest and hardly known political writings, as well as upon a few, and particularly one, of his better known organizational works. My discussion is framed by one significant critique that focused primarily on the most influential of those works, Alvin Gouldner on TVA. My aim here is less to rehash old debates than to identify in germ, incipient as Selznick might say, one pervasive aspect of Selznick’s intellectual character, what I have called his Hobbesian idealism. There are others, but this one is important and it is also related to, reflects and illuminates, many of the others. So it is not a bad place to start.
Am delighted to have been asked to deliver this lecture. I was pleased that Robert Manne should a... more Am delighted to have been asked to deliver this lecture. I was pleased that Robert Manne should ask me, since I admire him very much. I would be pleased, whatever lecture he asked me to give. All the more so, since the lecture is in honour of my father, whom I loved and continue to love, beyond measure.
The JSTOR Archive is a trusted digital repository providing for long-term preservation and access... more The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers, and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take advantage of advances in technology. For more information regarding JSTOR, please contact
This Chapter explicates, explores, and commends Patrick Glenn’s choice to recognize and emphasize... more This Chapter explicates, explores, and commends Patrick Glenn’s choice to recognize and emphasize the significance of tradition, his master concept for understanding law, in the workings of all legal orders. However, it does not share the evangelical enthusiasm that Glenn suggests should flow from this recognition. That enthusiasm is based, I argue, on a quite idiosyncratic and contestable conception of what traditions ‘truly’ involve, absent contingency or corruption. Without his excessively sunny conception of the nature of tradition as its foundation, however, a lot of the ‘conciliatory’ hopefulness so winning in Glenn’s writings seems to rest on shifting and uncertain ground. In particular, while Glenn notes that traditions are normative, he does not follow through the implications of this normativity.
Why have Kaczyński in Poland and Orbán in Hungary found so apparently easy what Donald Trump, who... more Why have Kaczyński in Poland and Orbán in Hungary found so apparently easy what Donald Trump, whose power and ambitions are not small and whose motivations appear to tend in similar directions, finds so hard: to overwhelm and take over independent institutions that were hoped by many to be able to temper power? The chapter suggests that a fundamental part of the answer stems from a specific failure of understanding—of the significance of institutionalization—among those who led the optimistic projects of the 1990s that now seem to be unravelling at speed. Next, it argues that their populist opponents have unfortunately displayed a better awareness in these matters. Finally, it suggests some responses that lawyers might and are right to make to the onslaughts they face. In this struggle, the efforts of lawyers are not sufficient, because the crisis is fundamentally social and political, but they are necessary.
University of New South Wales law journal, Dec 1, 1983
Review(s) of: Hugh Collins, Marxism and Law, Oxford University Press, Oxford. 1982, pp.v-viii. 1-... more Review(s) of: Hugh Collins, Marxism and Law, Oxford University Press, Oxford. 1982, pp.v-viii. 1-159 with Select Bibliography and Index, ISBN 0198760930. Includes footnotes.
ABSTRACT According to Dr Johnson, 'when a man knows he is to be hanged in a fortnight, it... more ABSTRACT According to Dr Johnson, 'when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.' Wondering whether you might be attacked by terrorists seems to have similar, if not always wonderful, effects. Certainly it concentrates, or at least galvanises, the minds of governments. Ours is no exception. From a standing start in 2001, when we had no national laws specifically dealing with terrorism, we have now enacted over forty-five. There are laws defining, often in very broad terms, what will count as terrorist crimes, organisations, membership, advocacy, financing. Even without another attack, counter-terrorist activity will not stop there or soon. And when, not if, such an attack occurs, the pace will no doubt quicken again, particularly if the attack is spectacular or novel in any way, all the more so if it happens here. The pressure to be seen to 'do something' about unpredictable and deliberate acts of murderous destructiveness will never be resisted by democratic governments. Some will see this as a responsibility of their office (and if it isn't, it is hard to see what is), others as an opportunity for exploitation, but every government will do something. The question is whether it is the right thing. In debates around responses to terrorism, four terms constantly recur: terrorism itself, war, balance, and the rule of law. This article is organised around those terms. My concern is with things, not words; but what we think about things is closely connected to what we call them.
Lawyers, legal philosophers and political theorists, not to mention ordinary folk, typically cons... more Lawyers, legal philosophers and political theorists, not to mention ordinary folk, typically consider links between law and the state to be intimate, unseverable, and uncontroversial. Lively questions 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 institutionalized, centralized, and legally co-ordinated offices of state. The major contribution of law and society studies to this discussion might be called cartographic. Researchers in this area have cast doubt on the common assumption that law and state need always be thought of as fused, like Siamese twins, as in the communist theoretical couplet, "theory of state and law." For at least a century, attempts have been made to decouple the apparently obvious and necessary connections between state and law and to produce accounts of the nature, place, and functions of law in society, accounts that include the state but 'de-center' it. Not everyone believes this detachment of law and state is a good idea, but it is a paradigmatically sociological idea.
8 officials were the king's servant, not the nation's. Second, as a result of the widespread vena... more 8 officials were the king's servant, not the nation's. Second, as a result of the widespread venality of public offices, government poststhough, as Tocqueville emphasizes,^ not those of the Intendant and his subordinates-were quite literally the private property of royal officials. France's finances, for example, were in the hands of: private businessmen and the Crown could control them only by occasional legal process, not by continuous administrative direction. __ The aristocratic society of the ccneien regime inevitably undermined all general laws and regulations because privileges, graces, favours and marks of distinction consisted in person al exemptions and exceptions. We know this best, perhaps, in the field of taxation, where any general law merely gave the Crown fresh opportunities for awarding exemptions. But in every other field, too, the personal, the idiosyncratic, or what in America today would be called the 'individualistic' ^ always prevailed over the general law and the general interest. The French Revolution changed this situation dramatically, in public consciousnesss and to a great degree in fact; it was a profoundly significant landmark in what Barker calls the 'disengagement' of the State. No longer the King's servants, public officials came to be regarded as servants of the nation, that nation which, the Declaration of the Rights of Man and of Citizens had proclaimed, was 'essentially the source of all sovereignty; nor can any individual or body of men be entitled to any authority which is not expressly derived from it'. Moreover, as Bosher emphasizes,^ French officials began to form a 'bureaucracy' in a modern sense: they became public servants who were paid regular salaries by, and were answerable to, the state.
Review(s) of: Understanding Marxism: An approach through dialogue, by W . H. C. Eddy, with an int... more Review(s) of: Understanding Marxism: An approach through dialogue, by W . H. C. Eddy, with an introduction by Eugene Kamenka, Edward Arnold, Melbourne, 1979, ISBN 0 7267 2 28 3.
Research in the sociology of organizations, Mar 28, 2015
ABSTRACT Philip Selznick died in 2010, at the age of ninety one. His writings spanned some sevent... more ABSTRACT Philip Selznick died in 2010, at the age of ninety one. His writings spanned some seventy years, only the first fifteen of which were occupied directly and primarily with organizational sociology. Though organizational issues didn’t vanish from his work, and were central in one later book, he moved to other fields, notably sociology of law, but also industrial sociology and social and public philosophy. Moreover, his view of sociology was, as he put it, 'ecumenical', and his subjects were many. Selznick’s intellectual character and sensibility deserve attention in themselves. Many of these elements were apparent from the beginning, and so, anyone interested in Selznick’s cast of mind, over and above the particular works it generated, must start early. And so I will.In this article, I draw primarily on some of Philip Selznick’s earliest and hardly known political writings, as well as upon a few, and particularly one, of his better known organizational works. My discussion is framed by one significant critique that focused primarily on the most influential of those works, Alvin Gouldner on TVA. My aim here is less to rehash old debates than to identify in germ, incipient as Selznick might say, one pervasive aspect of Selznick’s intellectual character, what I have called his Hobbesian idealism. There are others, but this one is important and it is also related to, reflects and illuminates, many of the others. So it is not a bad place to start.
Am delighted to have been asked to deliver this lecture. I was pleased that Robert Manne should a... more Am delighted to have been asked to deliver this lecture. I was pleased that Robert Manne should ask me, since I admire him very much. I would be pleased, whatever lecture he asked me to give. All the more so, since the lecture is in honour of my father, whom I loved and continue to love, beyond measure.
The JSTOR Archive is a trusted digital repository providing for long-term preservation and access... more The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers, and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take advantage of advances in technology. For more information regarding JSTOR, please contact
The Rule of Law: Pasts, Presents, and two possible Futures.
Martin Krygier
Abstract
The rule of ... more The Rule of Law: Pasts, Presents, and two possible Futures. Martin Krygier Abstract
The rule of law’s recent rise from parochial and controversial political and legal ideal to universal international slogan has, then, given it a great boost in brand recognition, but its now mandatory rhetorical presence has rendered increasingly murky what the concept might mean, what the phenomenon might be, and why anyone should care. This fluidity might even be part of its charm to those who deploy it, but it has a price. For the concept speaks to important and enduring issues of politics and law, not always apparent in current rule of law effusions. So this article begins in a deliberately unoriginal way, not with those effusions but with some intimations of old traditions of thought. It identifies two venerable themes, related to each other as vexed problem and putative solution, namely arbitrary exercise of power, and its institutionalized tempering. These date from well before the rule of law became an economist’s and aid worker’s cliché. They might usefully inform present conversations, which instead often proceed in ignorance of them. The article then moves to some past experiences with and without the rule of law understood this way. It then goes normative, to suggest the ideal of the rule of law is a THOROUGHLY GOOD THING, even if not every invocation or even application of it is. The penultimate section raises some normative and sociological criticisms of current discussions, to do with their inadequate treatment of ideals and of contexts. The article concludes with two suggestions about future directions: one a call for a social science that doesn’t exist, and the other a timid suggestion that it might be time to go beyond the rule of law, in order to pursue the ideals that led us to it.
Convivial Futures: Visons from a Post-Growth Tomorrow, 2021
We agree convivialist aspirations are clearly congenial, and consideration of how they might be b... more We agree convivialist aspirations are clearly congenial, and consideration of how they might be brought about important and valuable. However, although we agree that a future flourishing society will be convivial, we are also mindful that it is unlikely ever to be purely convivial. This is both because not everyone will want to be, and because it might be that responses to non-conviviality might also have to be unconvivial.
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Papers by Martin Krygier
Martin Krygier
Abstract
The rule of law’s recent rise from parochial and controversial political and legal ideal to universal international slogan has, then, given it a great boost in brand recognition, but its now mandatory rhetorical presence has rendered increasingly murky what the concept might mean, what the phenomenon might be, and why anyone should care. This fluidity might even be part of its charm to those who deploy it, but it has a price. For the concept speaks to important and enduring issues of politics and law, not always apparent in current rule of law effusions.
So this article begins in a deliberately unoriginal way, not with those effusions but with some intimations of old traditions of thought. It identifies two venerable themes, related to each other as vexed problem and putative solution, namely arbitrary exercise of power, and its institutionalized tempering. These date from well before the rule of law became an economist’s and aid worker’s cliché. They might usefully inform present conversations, which instead often proceed in ignorance of them. The article then moves to some past experiences with and without the rule of law understood this way. It then goes normative, to suggest the ideal of the rule of law is a THOROUGHLY GOOD THING, even if not every invocation or even application of it is. The penultimate section raises some normative and sociological criticisms of current discussions, to do with their inadequate treatment of ideals and of contexts. The article concludes with two suggestions about future directions: one a call for a social science that doesn’t exist, and the other a timid suggestion that it might be time to go beyond the rule of law, in order to pursue the ideals that led us to it.