Peer Zumbansen (York University – Osgoode Hall Law School) has posted Law after the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law (American Journal of Comparative Law, Vol. 56, 2008) on SSRN. Here is the abstract:
The paper analyses the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time where the State is seeking to reassert, reformulate and reconceptualize its regulatory competence, both domestically and transnationally. While the earlier turn to alternative regulation modes, conceptualized under the heading of ‘legal pluralism’, ‘responsive law’, or ‘reflexive law’ in the 1970s and 1980s, had aimed at a more socially responsive, contextualized, and ultimately learning mode of legal intervention, the contemporary revival of functionalist jurisprudence and its reliance on ‘social norms’ embraces a limitation model of legal regulation. After revisiting the Legal Realist critique of Formalism and the formulation of Functionalist regulation as a progressive agenda, the paper then compares the U.S. American and German experiences with the rise of the Social Interventionist State in order to ask where law stands ‘after the Welfare State’ at the outset of the twenty-first century.
And from the paper:
Formal, as contrasted by substantive rationality, would claim that the law is “inherently certain and predictable”.70 Formalism, enshrined for example in the proposition of the ‘rule of law’, could be directed against arbitrary power.71 Taken as such, it would mean to resist a ‘social agenda’72 and ‘judicial activism’73 in the name of the letter of the law.74 Formalism would come to stand at the center of the magical, yet fragile construction of a ‘rule of law’, presupposing the law’s capacity to negotiate and thereby to translate, according to defined procedural rules, the different contestations and political manifestations of diverging interests in society into a reliable and predictable catalogue of ‘state action’.75 Yet, as the functions of government continued to expand, such translatory practice76 would always carry with it the danger that law would lose its center, its foothold and autonomy.77 As formalism claimed that the law could be understood from within, primarily by extrapolating a logical structure of a confined set of norms from a small set of higher-order78 principles, the need to recognize one or the other substantive basis for the edifice of formal law became just too apparent. Lawyers, writing at a time of extreme socio-economic and legal crisis, saw clearly that the association of a system of law with a particular system of political government posed dramatic challenges for any understanding of law in and of itself.79 Elaborations of the functions of the state in the context of a rapidly rising industrial society, accompanied by societal hardship and political contestation, exposed legal formalism to a sweeping challenge in the name of different values and interests. The more the state and its emanations through legislative, administrative and judicial acts would change, the more this would have a fundamental impact on law itself.80 With formal law turning functional, the covers of foundations of formalism were irrevocably drawn away.81
And one more excerpt:
Functionalism could be merely the (younger) brother of formalism, its necessary complementary and correcting feature. Formalist law would have to be functional in order to survive challenges arising from societal differentiation, political contestation, secularization and economic growth. As such, functionalism may also be understood as an outright challenge to the formalist claim to self-restriction. Functionalism would then be a fitting formula for law’s ability to survive, mainly by remaining adaptable and responsive. Functionalism in law describes the way in which the flexibilization and modernization of formal law, in reaction to an increasingly complex social environment, made up of competing interests, claims and contestations, takes place if law is to retain a steering function in the trials of society. Functionalism, thus understood, therefore designates the degree to which the law answers to requirements, customs, and necessities emerging from social practice or crystallizing out of public policy deliberations. The important feature here is that a functionalist approach in any legal area, from administrative to contract to corporate law, is based on the premise that regulation is in fact possible. What functionalism itself does not answer is who the author of regulation should be.
I need to think about this paper, but it is certainly challenging. Highly recommended.