Three conceptions of law: Towards a jurisprudence of democratic experimentalism

Wisconsin Law Review

Volumn 2010, Issue 2, 2010, Pages 673-718

  Michael, Wilkinson ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 78650809455     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (214)

1. See, e.g., Benedict Kingsbury et al., The Emergence of Global Administrative Law, LAW & CONTEMP. PROBS., Summer/Autumn 2005, at 15.
2. In the European context, see, e.g., Carol Harlow, European Administrative Law and the Global Challenge, in THE EVOLUTION OF EU LAW 261 (Paul Craig & Gráinne de Burea eds., 1999).
3. See, e.g., Neil Walker, EU Constitutionalism and New Governance, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 15, 15-16 (Gráinne de Búrea & Joanne Scott eds., 2006).
4. See, e.g., Francis Snyder, The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques, 56 MOD. L. REV. 19, 31-36 (1993).
5. See, e.g., Günther Teubner, Substantive and Reflexive Elements in Modem Law, 17 LAW & SOC'Y REV. 239, 243-44 (1983).
6. See, e.g., Paul Berman, Global Legal Pluralism, 80 S. CAL. L. REV. 1155 (2007).
7. See, e.g., Joshua Cohen & Charles Sabel, Directly-Deliberative Polyarchy, 3 EUR. L.J. 313 (1997);
8. and, for the U.S. perspective, Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267(1998).
9. The claim that conceptual enquiry is the proper methodological approach to legal theory has recently been staunchly defended by Joseph Raz. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION: ON THE THEORY OF LAW AND PRACTICAL REASON 17-46 (2009).
10. See Neil Walker & Gráinne de Burea, Reconceiving Law and New Governance, 13 COLUM. J. EUR. L. 519, 519 (2007).
11. This accords more or less with Dworkin's distinction between concept and conception. See RONALD DWORKIN, LAW'S EMPIRE 70-72 (1986).
12. It is worth noting, however, that contra Dworkin, no assumption is made here that what he terms the "sociological concept of law" is theoretically uninteresting. See RONALD DWORKIN, JUSTICE IN ROBES 2-6 (2006).
13. The literature is, by now, huge. See LAW AND NEW GOVERNANCE IN THE EU AND THE US ix-x (Gráinne de Burea & Joanne Scott eds., 2006) (listing the numerous contributions to the work).
14. See Joshua Cohen & Charles Sabel, Extra Rempublicam Nulla Justitia?, 34 PHIL. & PUB. AFF. 147 (2006) (a powerful piece against Nagel's rejection of the idea of global justice).
15. See also Joshua Cohen & Charles F. Sabel, Global Democracy?, 37 N.Y.U. J. INT'L L. & POL. 763 (2005).
16. See, e.g., supra note 11.
17. For a relatively recent exploration of Dewey's political philosophy see Robert B. Westbrook, Pragmatism and Democracy: Reconstructing the Logic of John Dewey's Faith, in THE REVIVAL OF PRAGMATISM: NEW ESSAYS ON SOCIAL THOUGHT, LAW, AND CULTURE 128 (Morris Dickstein ed., 1998).
18. Joshua Cohen & Charles F. Sabel, Sovereignty and Solidarity: EU and US, in GOVERNING WORK AND WELFARE IN A NEW ECONOMY: EUROPEAN AND AMERICAN EXPERIMENTS 345, 362 (Jonathan Zeitlin & David M. Trubek eds., 2003).
19. It is interesting that "new governance" is used in Europe with its Foucaultian connotations of "governmentality." The terminology is problematic. Democratic experimentalism is far more attractive as an ideal term, not only because it avoids the connotations of "governmentality" but also because it suggests action from "the bottom-up" rather than the "top-down." The problem of what new governance actually is cannot of course be overcome by way of typological fiat. Note Rorty's quip that Foucault is traveling down a road at the end of which Dewey is waiting! See Danilo Melossi, Security, Social Control, Democracy and Migration within the "Constitution" of the EU, 11 EUR. L.J. 5, 6-7 (2005).
20. See SHELDON S. WOLIN, Democracy without the Citizen, in THE PRESENCE OF THE PAST: ESSAYS ON THE STATE AND THE CONSTITUTION 180 (1989).
21. See Gráinne de Búrea & Joanne Scott, Introduction to LAW AND NEW GOVERNANCE IN THE EU AND THE US 1, 2 (Gráinne de Búrea & Joanne Scott eds., 2006).
22. Id. at 3.
23. In the U.S. context, see Dorf & Sabel, pra note 7.
24. See Michael A. Wilkinson, Civil Society and the Re-Imagination of European Constitutionalism, 9 EUR. L.J. 451 (2003).
25. See JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS (1927).
26. This inevitably provokes a further preliminary query about new governance: is all of this really that new? Are we merely mapping terrain that is actually quite old? For an examination of the historical background of new governance in the U.S., see Orly Lobel, Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004).
27. It is not in all cases newness in terms of the existence of certain governance phenomenon, it is the newness of their recognition as playing a central role in public life that is important. Orly Lobel, Surreply: Setting the Agenda for New Governance Research, MINN. L. REV. 498, 506 (2004).
28. J.H.H. WEILER, THE CONSTITUTION OF EUROPE: "DO THE NEW CLOTHES HAVE AN EMPEROR?" AND OTHER ESSAYS ON EUROPEAN INTEGRATION 3-9 (1999).
29. See Charles F. Sabel & William H. Simon, Epilogue: Accountability Without Sovereignty, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 395 (Gráinne de Búrea & Joanne Scott eds., 2006).
30. Unfortunately this alleged and apparent orthodoxy of legal thought is not elaborated upon. It is unfortunate because few contemporary legal positivists use the terminology of command-and-control. It was of course Hart who developed his theory in contradistinction eo the classical command theory of Austin and Bentham. See H.L.A. HART, THE CONCEPT OF LAW 16-17 (1961).
31. de Burea & Scott, Supra note 18, at 9.
32. See Sabel & Simon, Supra note 25, at 395 (emphasis added).
33. Id. at 396 (quotation marks omitted).
34. Id.
35. Id.
36. Id. at 398.
37. Id.
38. Id. at 400.
39. Few in the jurisprudential tradition have actually suggested that this can be a strict distinction. Even a formalist such as Hans Kelsen conceived the distinction between lawmaking and law application to be blurred. See HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 67-68 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992) (1934).
40. See Sabel & Simon, supra note 25, at 400.
41. Another example they use is employment strategy. In the EU, European Employment Strategy (EES) reaches into areas of macro-economic policy that would anyway be outside of the scope of traditional legal control. Id.
42. At least in the EES it is subject to some outside discipline, in the sense that other States and non-state interests are concerned and involved as interested participants in the process of peer review. Id.
43. Id. at 402.
44. Id.
45. The significance of using the courts to encourage and facilitate democratic experimentalism has been explored by Joanne Scott and Susan Sturm, Courts as Catalysts: Re-Thinking the Judicial Role in New Governance, 13 COLUM. J. EUR. L. 565 (2007).
46. de Burea & Scott, Supra note 18, at 10.
47. Id. at 9.
48. See, e.g., Brian Leiter, Positivism, Formalism, Realism, 99 COLUM. L. REV. 1138 (1999) (reviewing ANTHONY SEBOK, LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE (1998)).
49. See, e.g., Kenneth Himma, Do Philosophy and Sociology Mix? A Non-Essentialist, Socio-Legal Positivist Analysis of the Concept of Law, 24 OXFORD J. LEGAL STUD. 717(2004).
50. Earlier work examining some of the implications of Weber's broader understanding of the nature of social science on his legal sociology was undertaken by David Trubek and Anthony Kronman. See, e.g., ANTHONY T. KRONMAN, MAX WEBER (1983);
51. David M. Trubek, Max Weber's Tragic Modernism and the Study of Law in Society, 20 LAW & SOC'Y REV. 573 (1986) (reviewing ANTHONY T. KRONMAN, MAX WEBER (1983)).
52. For a historical overview in the U.S. context, see Lobel, supra note 23.
53. See also Richard Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437 (2003).
54. LEON DuGuIT, LAW IN THE MODERN STATE XXXV (Frida Laski & Harold Laski trans., Howard Fertig, Inc. ed. 1970) (1919). The public law theory of Duguit eschewed both analytical positivism and the idealistic holism of the natural law represented by the organic state theory of the nineteenth century. Id.
55. Eugen Ehrlich, The Sociology of Law, 36 HARV. L. REV. 129, 144 (1922) (emphasis added).
56. Id. at 136. Ehrlich continues: "It cannot limit itself to the Legal Provision as such. It must consider the whole of law in its social relations and must also fit the Legal Provision into this social setting." Id. at 144.
57. Id. at 137.
58. Id. at 139-40. Which, Ehrlich says, are "hardly noticed by [his] contemporaries."
59. Id. at 140.
60. There is in this sense an obvious connection between the functionalism of the early legal sociologists and the later systems theory of Luhmann and Teubner. See Teubner, supra note 5, at 243-44.
61. See Leslie Green, The Political Content of Legal Theory, 17 PHIL. SOC. SCI. 1, 4(1987).
62. Id. at 1-4.
63. See generally Martin Loughlin, The Functionalist Style in Public Law, 55 U. TORONTO L.J. 361 (2005) (examining the functionalist style in public law, identifying it with a broadly leftist political ideology).
64. Of course, functionalism need not necessarily eschew this kind of conceptual approach to legal theory. It might be claimed that function and essence coincide, if law's essential features are whatever best serves the purpose it represents in an Aristotelian manner of functionalism. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
65. See Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812 (1935).
66. See Loughlin, supra note 54, at 363 (internal quotation marks removed).
67. Roscoe Pound wrote an introduction to Ehrlich's Harvard Law Review essay. See Ehrlich, Supra note 47, at 129-30.
68. For a brief statement of Pound's ambiguity towards European continental legal scholarship, see NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 63 (1995).
69. Brian Z. Tamanaha, The Perils of Pervasive Legal Instrumentalism 28 (St. John's U. Legal Studies Research Paper Series, Paper No. 05-011, 2005), available at http://ssrn.com/abstract=725582 (citation omitted). According to Tamanaha, the pragmatists who dominated the law teaching of the 1960s were united in favoring this kind of approach to law, sensing that this meant law was essentially a matter of "balancing interests."
70. Id. at 42 (citation omitted).
71. Id. at 28, 45-46. According to Tamanaha, by the 1970s, Legal instrumentalist views . . . had won over the legal academy. And this occurred in a context of society-wide, group-based disagreement over moral values and the public good, seemingly made worse owing to a loss of belief in the availability of objective standards by which to resolve such disputes.
72. Id. at 45. The critical question is whether the functional approach teaches "all manner of men to look to law as an instrument for their private or personal disposal?"
73. Id.
74. See Loughlin, supra note 54, at 368.
75. The reference here is obviously to the early work of Ernst Haas. See generally ERNST HAAS, BEYOND THE NATION-STATE: FUNCTIONALISM AND INTERNATIONAL ORGANIZATION 57-67 (1964).
76. Intriguingly, although Haas does refer to the earlier legal functionalists such as Duguit, he pays relatively scant attention to the function of law in the integration process. "In his concern with process and with becoming," Haas's jurisprudential reflections begin, "it is understandable that the Functionalist should devote little attention to law, and indeed should minimize its role in the gradual unveiling of the immanent world community." Id. at 40.
77. For a more recent appraisal of law in neo-functionalism, see generally Gráinne de Burea, Rethinking Law in Neo-Functionalist Theory, 12 J. EUR. PUB. POL'Y 310, 310-12 (2005).
78. See, e.g., David Trubek et al., "Sonft; Law, " "Hard Law, " and EU Integration, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 65, 69-76 (Gráinne de Burea & Joanne Scott eds., 2006).
79. It is remarkable, however, how prescient much of the pluralist analysis seems in the light of the decline of the nation-state in the latter half of the century.
80. David Trubek and Louise Trubek explicitly suggest their relational typology of law and new governance to be based on a functional analysis. See Dave Trubek & Louise Trubek, New Governance and Legal Regulation: Complementarity, Rivalry, and Transformation, 13 COLUM. J. EUR. L. 539, 544 n.12 (2007).
81. However, de Burea and Scott in fact suggest that the theses they identify have a descriptive and a normative dimension, de Búrea & Scott, supra note 18, at 4.
82. Moreover, they proffer "a framework for thinking not only about the actual nature and role of law in new governance, but also about its potential nature and role." Id.
83. They then go on to distinguish descriptive, explanatory and normative dimensions of the various typological components. Id. at 4-10.
84. Elsewhere, de Burea and Scott suggest a focus on both functions and values. See Gráinne de Búrea & Joanne Scott, Introduction to Narrowing the Gap? Law and New Approaches to Governance in the European Union,13 COLUM. J. EUR. L. 513, 514 (2007).
85. Charles Sabel & Jonathan Zeitlin, Learning From Difference: The New Architecture of Experimentalist Governance in the EU, 14 EUR. L.J. 271, 274 (2008).
86. According to Sabel and Zeitlin, the experimentalist architecture contains "no one-to-one mapping of governance functions to specific institutional mechanisms or policy instruments, and vice versa." Id.
87. Deliberation is geared towards understanding and learning from difference rather than achieving substantive consensus. Informalism, in terms of the "mutability of institutions" and absence of formal sanctions, is more an impression than a reality. Id.
88. In seeking to expose and clarify difference, "continuous institutional revision" is in reality often highly formalized, as in the case of the procedural requirements stipulated in EU directives or the emerging body of EU administrative law, which exists to control unbridled discretion and illegitimate delegations of power. Id. at 275.
89. Finally, multi-level governance is not simply a consequence of attempts to overcome blockages due to the institutional status quo or an impasse in the conflicting array of political preferences but is a reflection of a "division of labour inherent in a recursive conception of rule making." Id.
90. See, e.g., Joanne Scott & Jane Holder, Law and New Environmental Governance in the European Union, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 211 (Gráinne de Búrea & Joanne Scott eds., 2006).
91. See, e.g., Erika Szyszczak, Experimental Governance: The Open Method of Coordination, 12 EUR. L.J. 486 (2006).
92. For a powerful argument against a pure efficiency-based understanding of problems of European integration, see, e.g., Andreas Follesdal & Simon Hix, Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik, 44 J. COMMON MKT. STUD. 533 (2006).
93. See de Burea & Scott, supra note 18, at 4.
94. de Búrea and Scott observe descriptive, explanatory, and normative interpretation of the gap thesis. Id. at 4-6.
95. See Joanne Scott & David Trubek, Mind the Gap: Law and the New Approaches to Governance in the European Union, 8 EUR. L.J. 1, 8 (2002).
96. Community law has always had an unorthodox, or even sui generic quality about it, not least because of the unusual composition and diverse array of institutions behind the law-making process, the unorthodox inter-institutional relationships, and complex networks of political and legal power that are configured in the processes of integration. See, e.g., WEILER, Supra note 24.
97. See Scott & Trubek, Supra note 74, at 9.
98. Treaty on the Functioning of the European Union, art. 267.
99. Scott & Trubek, supra note 74, at 9.
100. Id.
101. See infra Part V.
102. See William E. Scheuerman, Democratic Experimentalism or Capitalist Synchronisation? Critical Reflections on Directly-Deliberative Polyarchy, 17 CANADIAN J.L. & JURISDICTION 101, 103 (2004) (stating a broadly sympathetic criticism of democratic experimentalism along the lines that it reflects the interests of capitalist rather than democratic development).
103. See Peer Zumbansen, Law After the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law, 56 AM. J. COMP. L. 769, 800 (2008).
104. William E. Scheuerman, Reflexive Law and the Challenges of Globalisation, 9 J. POL. PHIL. 81, 95 (2001).
105. Scheuerman was quite sanguine about banking self-regulation although he also noted the democratic deficiencies of G-10 attempts at regulating self-regulation of the banking sectors. Id. at 94-95.
106. Id. at 95.
107. Id. at 90-91.
108. Id. at 92 (quoting Boaventura de Sousa Santos, The Postmodern Transition: Law and Politics, in THE FATE OF LAW 79, 115 (Austin Sarat & Thomas Kearas eds., 1991)).
109. Scheuerman also notes, referring to Jerome Frank, that these types of dilemma are not exactly that new. Id.
110. As of course is the question of whether any particular ends are served by them, contravening the supposed neutrality of the rule of law.
111. See de Búrea & Scott, supra note 18. They suggest another possibility, that law is able to resist the new governance phenomenon. Id. at 4-5.
112. See, e.g., Scott & Trubek, Supra note 74, at 8-12.
113. Much of this differentiation of veneer, need not, and is not, of course denied by the proponents of new governance modes. Id.
114. Mark Dawson, Son Law and the Rule of Law in the European Union: Revision or Redundancy? 1, 8 (Robert Schuman Centre for Advanced Stud., European U. Inst. Working Papers, No. RSCAS 2009/24, 2009), available at http://ssrn.com/ abstract= 1415003.
115. Id.
116. Id. (quoting Christoph Möllers, European Governance: Meaning and Value of a Concept, 43 COMMON MKT. L. REV., 313, 316-7 (2006)) (internal quotation marks omitted).
117. Zumbansen, supra note 82, at 801.
118. See, e.g., NOAM CHOMSKY, GOVERNMENT IN THE FUTURE (1970).
119. We should not assume, therefore, that new governance is simply "a covert form of deregulation, designed to mask reduction of environmental standards and social protection" and consider that it is this alone which establishes a gap with traditional law, see Trubek & Trubek, Supra, note 65, 547 n.29. In other words the question of a gap between law and new governance should not be preempted by a simplistic association of new governance and neo-liberalism.
120. This recalls the Habermasian critique of Weberian cognitive-instrumental rationality. See 1 JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION: REASON AND THE RATIONALIZATION OF SOCIETY 189 (Thomas McCarthy trans., Beacon Press 1984) (1981).
121. For example, Kenneth Ehrenberg argues that functionalism helps explain law rather than define it or provide membership criteria for law. Just because law is not a "functional kind" does not mean one cannot use a functional methodology for its explanation. Kenneth M. Ehrenberg, Defending the Possibility of a Neutral Functional Theory of Law, 29 OXFORD J. LEGAL STUD. 91, 97 (2009).
122. Neglect of this question has been much a complaint against new governance scholarship as it is its critics. As Kilpatrick and Armstrong note in the treatment of soft law and hard law as dichotomous, there is "a tendency towards definition by default-that which is evidently not hard law must by default be soft law . .. rather than clearer theorization of what it means to be law in order to identify harder and softer variants.'' Kenneth Armstrong & Claire Kilpatrick, Law, Governance, or New Governance? The Changing Open Method of Coordination, 13 COLUM. J. EUR. L. 649, 659 (2007) (internal citation omitted).
123. See Scott & Trubek, supra note 74, at 8 (emphasis added). But which are premises and which are values? Is hierarchy, for example, really a value? Or is it simply an inevitable condition? Or contrary to both assumptions, is it merely a historically contingent aspect of social and political life?
124. Dawson, supra note 91, at 5.
125. Id. at 8.
126. Id.
127. Scheuerman, supra note 81, at 102.
128. There is, for example, according to Scheuerman, a lack of engagement with the normative arguments "in favor of centralized elected representative legislatures over the course of the last few centuries."
129. Id. at 119;
130. see also Jeremy Waldron, THE DIGNITY OF LEGISLATION 27-34, 66-67 (1999).
131. Scheuerman, supra note 81, at 122.
132. What this suggests, for Scheuerman, is that the law is following the pattern of capitalist development which has moved from "top-heavy bureaucratic forms of uniform state regulation" to the "organizational logic of flexible specialization." Id. at 123. Sabel et al. seem to celebrate the "organizational accomplishments of flexible specialization vis-à-vis earlier forms of capitalism," id. at 125, ignoring the "new forms of unequal, arbitrary power within the organization," id. (quoting RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM 55 (1998)) (internal citation marks omitted).
133. See, e.g., Christian Joerges, Integration Through Delegislation? An Irritated Heckler 21 (European Governance Papers, No. N-07-03, Iain F. Fraser trans., 2007), available at http://www.connex-network.org/eurogov/pdf/egp- newgov-N-07>-03.pdf.
134. For a different assessment of the influence of Hayek in the early new governance literature, see Amy Cohen, Governance Legalism: Hayek and Sabel On Reason and Rules, Organization and Law, 2010 Wis. L. REV. 357, 362-63.
135. See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 2 (1996).
136. In more explanatory mode, the liberal legalist might argue that the practical significance of new governance is exaggerated, that the state still remains the predominant institutional actor and that our theoretical presuppositions about the law need to be structured accordingly. This position might be labeled one of "denial."
137. This understanding of the modern rule of law is found in, for example, FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 72-73 (1944).
138. Max Weber's own account takes this analysis deeper, relating the spirit of capitalism to religious calling and a protestant ethics. Weber perceives modern formal law to be deeply implicated in the rise of the Protestant ethic and the spirit of capitalism but in a complex and ambiguous manner. As Habermas notes, Weber fails to develop the connections or disconnections between capitalism and law's perceived value rationality. See HABERMAS, supra note 97, at 228-29.
139. N.E. SIMMONDS, LAW AS A MORAL IDEA 138 (2007). Simmonds argues that the rule of law is not only instrumentally valuable (appropriating Fuller's eight desiderata). Id. at 66. According to Simmonds, "Laws are invoked as a justification for force, and an adequate legal theory must render this practice intelligible." Id. at 140.
140. See Marti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 MOD. L. REV. 1, 19 (2007) (emphasis added) although Koskenniemi goes on to note that the constitution of the international realm would be imperial in nature, not least because of the absence of a global pouvoir constituant. Constitutionalism was also perceived by many in the European Union to be an appropriate framework for securing the transnational rule of law and responding to the aim of democratizing the Union and bringing it closer to the citizen. Evidence of a certain "constitutionalist" mindset in the EU is easy to find, one notable scholar famously referring to constitutionalism as the "DOS" of European integration. See WEILER, supra note 24, at 221. Weiler himself was notably skeptical about the idea of European Constitution.
141. That is not to say the adherents to some form of liberal legalism are always sanguine about the ability of state-like mechanisms of accountability to be reproduced at the non-state level without some significant loss of legitimacy.
142. See Dawson, supra note 91, at 6.
143. Id. at 6-7.
144. Id. at 1.
145. See Kingsbury et al., supra note 1, at 37, 39-42.
146. David Dyzenhaus, Accountability and the Concept of (Global) Administrative Law A (Inst. Int'l. Law & Just. Working Papers, No. 2008/7, 2008), available at http://www.iilj.org/publications/2008-7Dyzenhaus.asp. Although Dyzenhaus addresses his jurisprudential enquiry towards the concept of global administrative law, rather than new governance, many similar issues arise.
147. Id. at 4.
148. Id. at 4 (emphasis added).
149. Id.
150. Id.
151. Id. at 13.
152. Id. at 15 (internal quotation marks omitted).
153. Id. at 23.
154. See Walker & de Búrea, supra note 9, at 522.
155. See, e.g., Green, supra note 52, at 4.
156. As is the case, perhaps, in some natural law theorizing in the Aristotelian tradition. This is not the occasion to examine that possibility, which is quite different in approach to the functionalism examined above. See, e.g., FINNIS, supra note 55.
157. Leslie Green helpfully notes that we can distinguish between its "latent" and "manifest" functions, the Marxist view that "law supports the dominant means of production" or reifies class power being an obvious example of the latter claim. See Green, Supra note 52, at 4.
158. Contra, e.g., KELSEN, supra note 35.
159. A denial of which has led to legal pluralism coming unstuck in its failure to elaborate a concept of law, such that everything becomes law or legal, or as Tamanaha recently put it, we end up "swimming, or drowning, in [it]." See Brian Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 SYDNEY L. REV. 375, 393 (2008).
160. JOSEPH RAZ, PRACTICAL REASON AND NORMS 150 (1999) (1975).
161. Id. at 159-60.
162. See HART, Supra note 26, at 79.
163. See, e.g., Tamanaha, Supra note 134, at 393.
164. See, e.g., JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 31 (2d ed. 2009) (noting that law's claim to legitimate authority is a moral claim).
165. See Niklas Luhmann, Law as a Social System, 83 Nw. U. L. REV. 136, 140 (1989).
166. See Ronen Shamir, Corporate Social Responsibility: Towards a New Market Embedded Morality?, 9 THEORETICAL INQUIRIES L. 371, 374, 394 (2008).
167. See HART, supra note 26, at 201-04. Raz too argues that the rule of law essentially mediates wrongs the possibility of which are anyway created by law in the first place. See RAZ, supranote 139, at 210-11.
168. See, e.g., Leslie Green, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. REV. 1035, 1052-54 (2008).
169. This was, ironically, the expression of a Marxist historian. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGINS OF THE BLACK ACT 266 (1975).
170. See Green, Supra note 143, at 1057-58.
171. See Mike Wilkinson, Is Law Morally Risky? Alienation, Acceptance and Hart's Concept of Law, 30 OXFORD J. LEGAL STUD, (forthcoming 2010) (on file with author).
172. Law is in danger of becoming official-dominated. If Hart's account is correct, only officials need to adopt the internal point of view towards the rule of recognition in order for the society to have a legal order. See Green, supra note 143, at 1058;
173. Jeremy Waldron, All We Like Sheep, 12 CANADIAN J.L. & JURISPRUDENCE 169, 180 (1999).
174. This insight has recently been revived in the context of globalizing democracy. See James Bohman, Reflexive Constitution-Making and Transitional Governance, in MAKING THE EUROPEAN POLITY: REFLEXIVE INTEGRATION IN THE EU (Erik Oddvar Eriksen ed., 2005).
175. Harold Laski, Introduction to LAW IN THE MODERN STATE (Frida Laski & Harold Laski trans., Howard Fertig, Inc. ed. 1970) (1919) (discussing the socialization of law).
176. This builds on the "mutual penetration" thesis. See Walker & de Búrea, Supra note 9, at 522.
177. LON FULLER, THE MORALITY OF LAW 208 (rev. ed. 1969) (1964).
178. Id. at 210.
179. See also Alexander Somek, Administration Without Sovereignty 18 (Univ. of Iowa Legal Studies Research Paper No. 09-04, 2009), available at http://ssrn.com/abstract=1333282 (building on the idea that legality must ultimately be conceptualized as a relationship).
180. This, perhaps, is characteristic of the liberal social contract tradition to which Fuller ascribes. See generally FULLER, Supra note 150, at 43-47. A full account of this tradition is beyond the scope of this Article.
181. Id. at 46 n.3. It is also worth noting that "the [alleged] limited applicability of Fuller's principles to modern legislation." See Edward Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 399 (1989). In the context of the administrative state, it is far from clear that Fuller's desiderata are clearly desirable when we consider legislation as "directives to implementation mechanisms . . . ." Id. at 399-400. Law is not so much about rules addressed to citizens but policy directed to officials and agencies. Id.
182. See LON L. FULLER, THE PRINCIPLES OF SOCIAL ORDER 126 (Kenneth I. Winston, ed., 1981).
183. Id. at 127.
184. Id.
185. Id. at 133.
186. Id. at 133-35.
187. Id. at 127.
188. Walker & de Búrea, supra note 9, at 522.
189. Id. at 533 (emphasis added).
190. They reach this conclusion after discussing and discarding the "formal pair" of pedigree conceptions, institutional conceptions, and the "sociological pair" of symbolic conceptions and functional conceptions as aspects of law's "conceptual hegemony," suggesting in both cases either absorption or separation of law and new governance. Id. 532-34.
191. Id. at 533.
192. Id. at 533-34.
193. See HART, Supra note 26, at 95-96.
194. Walker & de Búrea, supra note 9, at 534.
195. Id.
196. Id. at 534-35.
197. See de Búrea & Scott, Supra note 18, at 6-9 (identifying "fundamental/baseline hybridity," "instrumental/developmental hybridity," and "default hybridity").
198. Id. at 6.
199. Maurizio Ferrara, The JCMS Annual Lecture: National Welfare States and European Integration: In Search of a "Virtuous Nesting," 47 J. COMMON MKT. STUD. 219 (2009).
200. New governance has the tendency to be output oriented. See Colin Scott, Governing Without Law or Governing Without Government? New-ish Governance and the Legitimacy of the EU, 15 EUR. L.J. 160, 173 (2009).
201. This reflects Habermas's argument that the addressees of law must be able to see themselves as its authors. See JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 449 (William Rehg trans., 1996) (1992). The way Habermas attempts to redeem this claim through discourse theory brings the question of law's "normativity," its legitimate authority, in direct contact with a theory of democracy and democratic political will-formation in the public sphere. Id.
202. William H. Simon, Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 37 (Gráinne de Búrea & Joanne Scott eds., 2006).
203. Id. at 38-41. Simon rejects five propositions of traditional mainstream legal thought: that the dominant function of the legal system is dispute resolution or the optimization of socially accepted values; that the legal system engages in a dialect of formal rules and informal standards; that legal reasoning in hard cases is interstitial; that the core of legal decision-making is differentiated from other societal activities; and that legal decision-making is paradigmatically retrospective and individualist. Id.
204. Id. at 40-41.
205. Id. at 43.
206. Id.
207. In this celebration of experience and experimentation and the learning process that ensues the debt to John Dewey is evident. Id. at 64.
208. See, e.g., HABERMAS, Supra note 174, at 449-50.
209. HART, supra note 26, at 179.
210. Id. at 113-14.
211. KRONMAN, Supra note 44.
212. Id. at 175 (internal quotation marks omitted).
213. See id. (discussing Weber's application of the iron cage metaphor to the field of law).
214. For Habermas, like Hart, the modern legal order is "Janus-faced. " HABERMAS, Supra note 174, at 448. But the parallel is not striking in this instance, since for Habermas, the Janus represents not the official on the one hand and the citizen on the other, but the citizen in both its glances, looking towards the subject who takes only a strategic approach to rule violation, and towards the citizen who adopts a normative approach: Modern law presents itself as Janus-faced to its addressees: it leaves it up to them which of two possible approaches they want to take to law. Either they can consider legal norms merely as commands, in the sense of factual constraints on their personal scope for action, and take a strategic approach to the calculable consequences of possible rule violations; or they can take a pedformative attitude in which they view norms as valid precepts and comply "out of respect for the law." Id. at 448.