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In 2002, Philip Selznick gave a lecture in Beijing (Selznick 2005). In that lecture, he revisits the theme of the rule of law, which had retained his attention over the years, and rearticulates core features of his understanding of the rule of law. Crucially, he highlights the notion that the rule of law is an ideal, here explained as “something that we look to as a criterion or standard of good conduct, especially but not exclusively official conduct” (ibid., 30). It is good to note that this is an explanation given to a general audience, since Selznick's concept of ideals is much richer than this (Selznick 1961, 1969; Taekema 2003). In the context of the lecture, it allows him to highlight 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 (Selznick 2005, 32). It is this two-faced conceptualization of the rule of law that is the focus of this chapter.
In the lecture, Selznick discusses this under the heading “Two Concepts of the Rule of Law” (ibid., 30) as the negative and the more positive conception, but there are numerous reasons to doubt whether the idea of two concepts is really an adequate representation. Throughout his work, he uses the combination of basic and more demanding versions of an idea as related and interconnected rather than two separate concepts. In particular, he distinguishes “baseline” and “flourishing” as forms of realization of an ideal. Crucially, he connects the two when he discusses the move to a more demanding rule of law: “In this process there is or should be a dual focus on baselines and flourishings. We hold fast to the vital minimum even as we reach for the more subtle, more elaborated, more problematic ideal” (Selznick 1999, 34, original emphasis). Although this almost sounds like a matter of common sense, in practice it is not so easy to have a “dual focus.”
International organizations such as the United Nations (UN) and the European Union (EU) present themselves as champions for the rule of law. In recent years, EU member states such as Hungary and Poland have taken questionable measures, replacing the top of the judicial branch, bringing media under political control, changing the electoral system. The European Union has responded by employing the EU Treaty instruments for rule of law oversight. The United Nations are less directly engaged in supervising the rule of law, but there are many documents and policies that confirm the UN concern for the rule of law in states. What is much less obvious is how the UN and the EU think about the rule of law as a governing idea for themselves. The EU Treaty presents the rule of law as something to which it is committed in general. The UN discussions of the rule of law include reference to the rule of law as an international value, and include UN bodies as actors that need to commit to governance of international law. In both cases, however, the rule of law is primarily described as something that states need to uphold.