Research Paper Number

13/2008

Document Type

Article

Publication Date

2008

Keywords

law-making; legal regulation; neo-formalism; neo-functionalism; reflexive law; responsive law; rule of law; welfare state

Abstract

This paper analyzes the contemporary emergence of neo-formalist and neo-functionalist approaches to law-making at a time when 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, this paper compares the 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.

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