Governance Legausm: Hayek and Sabel on reason and rules, organization and law

Wisconsin Law Review

Volumn 2010, Issue 2, 2010, Pages 357-387

  Cohen, Amy J ^a,b  

^a OHIO STATE UNIVERSITY   (United States)

^b UNIVERSITY OF TURIN   (Italy)

Author keywords

[No Author keywords available]

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EID: 78650852596     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (234)

1. See, e.g., Christine Parker, The Pluralization of Regulation, 9 THEORETICAL INQUIRIES L. 349 (2008).
2. For a smattering of criticisms, see, e.g., Lisa T. Alexander, Stakeholder Participation in New Governance: Lessons From Chicago's Public Housing Reform Experiment, 16 GEO. J. ON POVERTY L. & POL'Y 117, 131-32 (2009) (suggesting that new governance's decentralized and soft-law mechanisms are unlikely to protect the interests of disadvantaged groups);
3. Susan D. Carle, Progressive Lawyering in Politically Depressing Times: Can New Models for Institutional Self-Reform Achieve More Effective Structura Change?, 30 HARV. J.L. & GENDER 323, 333 (2007) (critically examining the progressive potential of new governance measures that "bypass courts and legislatures");
4. Helen Hershkoff & Benedict Kingsbury, Crisis, Community, and Courts in Network Governance: A Response to Liebman and Sabel's Approach to Reform of Public Education, 28 N.Y.U. REV. L. & SOC. CHANGE 319, 322 (2003) (predicting that without greater attention to state-enforced rights, governance networks may become exclusive and non-transparent);
5. John a. powell & Marguerite L. Spencer, Brown is Not Brown and Educational Reform is Not Reform if Integration is Not a Goal, 28 N.Y.U. REV. L. & Soc. CHANGE 343, 347 (2003) (arguing that new governance approaches to education reform represent "the triumph of process over substance");
6. Cesar A. Rodrguez-Garavito, Global Governance and Labor Rights: Codes of Conduct and Anti-Sweatshop Struggles in Global Apparel Factories in Mexico and Guatemala, 33 POL. & SOC'Y 203, 205 (2005) (criticizing the "the governance paradigm" for paying insufficient attention to "the problems created by large power asymmetries among the nonstate actors . . . who are supposed to engage in deliberation and collaboration within governance systems");
7. David Super, Laboratories of Destitution: Democratic Experimentalism and the Failure of Antipoverty Law, 157 U. PENN. L. REV 541, 542, 545 (2009) (insisting that to address poverty in the United States, planners need centralized policymaking, not the decentralized participatory decision-making promoted by new governance);
8. Annecoos Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law, 38 ENVTL L. 1239 (2008) (arguing that new governance approaches to resource management cannot ensure long-term environmental protection).
9. See, e.g., Douglas NeJaime, When New Governance Fails, 70 OHIO ST. L.J. 323, 343 (2009) ("New Governance resonates with neo-liberalism; the impulse toward less centralized regulation and an appeal to privatization reflects neo-liberal ideals which have enjoyed currency in the American post-welfare state.");
10. see also Scott Burris et al., Changes in Governance: A Cross-Disciplinary Review of Current Scholarship, 41 AKRON L. REV. 1, 20, 48 (2008) (discussing features, such as subsidiarity and public-private partnerships, that new governance and neoliberalism share in common);
11. Joel Handler et al., A Roundtable on New Legal Realism, Microanalysis of Institutions, and the New Governance: Exploring Convergences and Differences, 2005 WIS. L. REV. 479, 511 (David Sugarman's remarks, observing that "governance is a linguistic politics . . . associated with the 'third way,' with particular versions of neoliberalism").
12. See, e.g., Ronen Shamir, The Age of Responsibilization: On MarketEmbedded Morality, 37 ECON. & SOC'Y 1, 7-8 (2008) (linking new governance ideas to the decline of state responsibility and the expansion of individual responsibility shaped by cost-benefit calculations);
13. see also William E. Scheuerman, Democratic Experimentalism or Capitalist Synchronization? Critical Refiections on DirectlyDeliberative Polyarchy, 17 CANANDIAN J.L. & JURISPRUDENCE 101, 125-26 (2004) (noting "the uglier facets of a system of capitalism organized according to the principles of benchmarking, concomitant engineering, and independent monitoring" and questioning the social consequences if new governance succeeds in using these principles to reorganize state regulation);
14. Hershkoff & Kingsbury, supra note 2, at 321-23 (discussing new governance's conceptual roots in industry and management and arguing that, as applied to social policy, new governance may intensify inequalities and undermine social values that defy quantification).
15. See, e.g., JOEL F. HANDLER, DOWN FROM BUREAUCRACY: THE AMBIGUITY OF PRIVATIZATION AND EMPOWERMENT (1996);
16. Boaventura de Sousa Santos, Beyond Neoliberal Governance: The World Social Forum as Subaltem Cosmopolitan Politics and Legality, in LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY 43 (Boaventura de Sousa Santos & Cesar A. RodrguezGaravito eds., 2005).
17. Charles F. Sabel, Design, Deliberation, and Democracy: On the New Pragmatism of Firms and Public Institutions (paper presented to the Conference on Liberal Institutions, Economic Constitutional Rights, and the Role of Organizations, European Univ. Inst., Dec. 15-16, 1995), in LIBERAL INSTITUTIONS, ECONOMIC CONSTITUTIONAL RIGHTS, AND THE ROLE OF ORGANIZATIONS 101 (Karl-Heinz Ladeur ed., 1997), available at http://www2.law.columbia.edu/sabel/papers/ Design.html.
18. In this paper, Sabel develops new governance through a partial invocation and partial rejection of Hayek, on the one hand, and Durkheim, on the other. My Article, however, addresses only Sabel's engagement with Hayek.
19. See, e.g., Rachel S. Turner, The "Rebirth of Liberalism": The Origins of Neo-Liberal Ideology, 12 J. POL. IDEOLOGIES 67, 69-71 (2007). Hayek himself acknowledged that "Americans have done me the honour of considering the publication of The Road to Serfdom as the decisive date ... [of bringing] about the rehabilitation of the idea of personal freedom especially in the economic realm."
20. Id. at 78. Fittingly, he subtitled his three-volume work on law "a new statement of the liberal principles of justice and political economy." 1-3
21. FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY (1973, 1976, 1979) (emphasis added).
22. Sabel, Design, Deliberation, and Democracy, supra note 6, at 132.
23. I intend the term "liberal legalism" to approximate what William Simon broadly describes as legal liberalism, that is, "a cluster of ideas associated with the Warren Court, the ACLU, the NAACP Legal Defense Fund, Ralph Nader, and the legal aid and public defender movements." William H. Simon, Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism, 46 WM. SC MARY L. REV. 127, 127 (2004).
24. See also Jason M. Solomon, Law and Governance in the 21st Century Regulatory State, 86 TEX. L. REV. 819, 827 (2008) (describing new governance as "a critique of and (for some) an intentional challenge to the rights-based model of legal liberalism").
25. A brief note on this potentially confusing terminology: the first usage of the term liberal is intended to signify a (peculiarly United Statesian) association with progressive social-legal ideals. See, e.g., supra note 10. By contrast, the second usage broadly signifies a reconstruction of ideas of individual freedom promoted in neoclassical economics and classical legal thought.
26. See, e.g., supra note 8. See generally infra Part III.
27. See infra notes 18-19 and accompanying text.
28. FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: RULES AND ORDER 12 (1973) [hereinafter HAYEK, 1 LAW, LEGISLATION AND LIBERTY];
29. see generally FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 22-38 (1960) [hereinafter HAYEK, CONSTITUTION].
30. See HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 12-15.
31. FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: THE POLITICAL ORDER OF A FREE PEOPLE 68 (1979) [hereinafter HAYEK, 3 LAW, LEGISLATION AND LIBERTY].
32. Michael C. Dorf, After Bureaucracy, 71 U. CHI. L. REV. 1245, 1269 (2004).
33. See, e.g., Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 317 (1998).
34. John Braithwaite, Methods of Power for Development: Weapons of the Weak, Weapons of the Strong, 26 MICH. J. INT'L L. 297, 308 (2004) (describing work by Clifford Shearing and others that draws on Dorf and Sabel's scholarship).
35. Philip Alston & James Heenan, Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?, 36 N.Y.U. J. INT'L L. & POL. 221, 250, 249-51 (2004) (describing Sean Cooney's pragmatist approach to labor regulation and its reliance on Sabel's work among others).
36. See, e.g., Sabel, Design, Deliberation, and Democracy, supra note 6, at 107-08.
37. See, e.g., HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 11-12, 19.
38. F.A. HAYEK, NEW STUDIES IN PHILOSOPHY, POLITICS, ECONOMICS AND THE HISTORY OF IDEAS 77 (1978).
39. See, e.g., HAYEK, CONSTITUTION, supra note 13, at 159-61 (describing polycentric orders).
40. See, e.g., id. at 148-61;
41. F.A. HAYEK, THE FATAL CONCEIT: THE ERRORS OF SOCIALISM 63 (1988);
42. 2 FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: THE MIRAGE OF SOCIAL JUSTICE 16-17 (1976) [hereinafter HAYEK, 2 LAW, LEGISLATION AND LIBERTY].
43. See, e.g., HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 112-13;
44. HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 114. Hayek argues further that we should understand rules of just conduct "not as means but as ultimate values, indeed as the only values common to all and distinct from the particular ends of the individuals."
45. Id. at 17.
46. HAYEK, NEW STUDIES, supra note 22, at 34.
47. See, e.g., Charles F. Sabel & William H. Simon, Epilogue: Accountability Widiout Sovereignty, in LAW AND NEW GOVERNANCE IN THE EU AND US 395, 402 (Grainne de Burea & Joanne Scott eds., 2006) (describing "directly deliberative problem solving");
48. see also FRIEDRICH A. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER 15 (1948) (rejecting the "presumption that each man knows his interest best" because "nobody can know who knows best ... the only way by which we can find out is through a social process in which everybody is allowed to try and see what he can do").
49. Charles Sabel, Archon Fung, & Bradley Karkkainen, Beyond Backyard Environmentalism, in BEYOND BACKYARD ENVIRONMENTALEM 3, 6-7 (Joshua Cohen & Joel Rogers eds., 2000).
50. Sabel, Design, Deliberation, and Democracy, supra note 6, at 103.
51. Id. at 122-25, 127.
52. See id. at 120-30, 138-43.
53. See generally MICHAEL J. PIORE & CHARLES F. SABEL, THE SECOND INDUSTRIAL DIVIDE: POSSIBILITIES FOR PROSPERITY 194-250 (1984);
54. Charles F. Sabel, Learning by Monitoring: The Institutions of Economic Development, in THE HANDBOOK OF ECONOMIC SOCIOLOGY 137 (Neil J. Smelser & Richard Swedberg eds., 1994), available at http://www.law.columbia.edu/null/ Working-l-paper-l-No? exclusive=filemgr.download&file-id= 64129&showthumb=0;
55. see also RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM 47-59 (1998).
56. Sabel, Design, Deliberation, and Democracy, supra note 6, at 103.
57. Id. at 105, 120-25. For other detailed accounts,
58. see Sabel, Learning by Monitoring, supra note 32;
59. Dorf & Sabel, supra note 17, at 286-88, 297-313;
60. William H. Simon, Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 37 (Grainne de Burea & Joanne Scott eds., 2006).
61. Sabel, Design, Deliberation, and Democracy, supra note 6, at 128.
62. Id. at 124;
63. see also id. at 120 ("[N]ew economic organizations . . . depend on an institutional framework that is much more intrusive in its formal regulation of cooperation than any system of rules sanctioned in the Hayekian view. ").
64. Id. at 124.
65. Id. at 122.
66. Id. at 123.
67. Id. at 115-18 (describing "microscopic Hayekian accounts of flexibility").
68. Id. at 123.
69. Id. at 124.
70. See generally RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995).
71. Sabel, Design, Deliberation, and Democracy, supra note 6, at 132.
72. Id. at 139-41.
73. Id. at 140.
74. Id.
75. Id. at 120.
76. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 32;
77. see also HAYEK, NEW STUDIES, supra note 22, at 7-8.
78. Sabel, Design, Deliberation, and Democracy, supra note 6, at 138.
79. Id. at 121.
80. Id. at 123.
81. Id. at 103-04 ("It is precisely [the] distinction between tacit action and formal, ultimately political rule, I will argue, that is overturned by the central innovation of the new organizations . . . .").
82. See id. at 111-20.
83. Id. at 118. He wrote further: Just as the state must defer, through democracy, to the superiority of local, practical knowledge as against the theoretical knowledge of the elites in legislative chambers, so individuals and groups must defer to the deep forms of sociability or conviviality out of which cognition grows, never concluding that the ability to do something accords the right to say in detail how it should be done.
84. Id. at 116.
85. Id. at 131.
86. HAYEK, NEW STUDIES, supra note 22, at 8.
87. See Amy J. Cohen, Negotiation, Meet New Governance: Interests, Skills, and Selves, 33 LAW & Soc. INQUIRY 503 (2008).
88. See id. at 522-29.
89. Dorf & Sabel, supra note 17, at 322.
90. See generally F.A. HAYEK, THE SENSORY ORDER: AN INQUIRY INTO THE FOUNDATIONS OF THEORETICAL PSYCHOLOGY (1952) [hereinafter HAYEK, THE SENSORY ORDER].
91. Id. at 142.
92. Id. at 166.
93. Id.
94. Id. He writes further that "[w]henever we study qualitative differences between experiences we are studying mental and not physical events, and much that we believe to know about the external world is, in fact, knowledge about ourselves."
95. Id. at 6-7.
96. Id. at 143. Indeed, Hayek claims that "[a]n event of an entirely new kind which has never occurred before, and which sets up impulses which arrive in the brain for the first time, could not be perceived at all."
97. Id. at 142.
98. Id. at 6.
99. Id. at 168 (emphasis added).
100. Id. at 145, 168-69.
101. F. A. Hayek, "Meta-Conscious" Rules and the Explanation of Mind, in ORDER-WITH OR WITHOUT DESIGN?: SELECTIONS FROM F.A. HAYEK'S CONTRIBUTION TO THE THEORY AND APPLICATION OF SPONTANEOUS ORDER 65 (Naomi Moldofsky ed., 1989).
102. HAYEK, NEW STUDIES, supra note 22, at 46;
103. see also HAYEK, THE SENSORY ORDER, supra note 61, at 169-70 ("There is, therefore, on every level, or in every universe of discourse, a part of our knowledge which, although it is the result of experience, cannot be controlled by experience, because it constitutes the ordering principle of that universe by which we distinguish the different kinds of objects of which it consists and to which our statements refer.").
104. For an excellent discussion of this point on which this discussion draws, see Gary T. Dempsy, Hayek's Terra Incognita of the Mind, 34 S. J. PHIL. 13, 22-27 (1996).
105. Id. at 26.
106. HAYEK, THE SENSORY ORDER, supra note 61, at 142.
107. Hayek, "Meta-Conscious" Rules, supra note 70, at 63;
108. see also Dempsy, supra note 72, at 26. Take note of Hayek's quite self-conscious rejection of the Freudian metaphor: "It is generally taken for granted," he explains, "that in some sense conscious experience constitutes the 'highest' level in the hierarchy of mental events, and that what is not conscious has remained 'sub-conscious' because it has not yet risen to that level."
109. HAYEK, NEW STUDIES, supra note 22, at 45. Hayek, however, does not describe a subconscious but "a supra-conscious mechanism," which, he argues, should supplant erroneous descriptions of "conscious thought and explicit statements as in some sense the highest level of mental functions."
110. Hayek, "Meta-Conscious" Rules, supra note 70, at 63. For Hayek's criticisms of Freud (and specifically the idea of freedom from repression),
111. see HAYEK, 3 LAW, LEGISLATION AND LIBERTY, supra note 15, at 174-76.
112. See, e.g., Hayek, "Meta-Conscious"Rules, supra note 70, at 63;
113. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 11-12.
114. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 17-19.
115. See, e.g., id. at 30.
116. Dempsy, supra note 72, at 23.
117. See, e.g., HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 29-31. For a similar (and quite extensive) argument about the costs of formalizing tacit knowledge,
118. see generally MICHAEL POLANYI, THE TACIT DIMENSION (Peter Smith ed., 1983).
119. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 32.
120. See, e.g., id. at 29, 33, 41.
121. See, e.g., FRIEDRICH A. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER 14 (1948). Indeed, as Ernst-Joachim Mestmacker explains, "in Hayek's theory, rational choice is limited to the micro level."
122. ERNST-JOACHIM MESTMACKER, A LEGAL THEORY WITHOUT LAW: POSNER V. HAYEK ON ECONOMIC ANALYSIS OF LAW 34 (2007) (suggesting that "the hostility of Austrian economics to efficiency as a guide to public policy" has its roots in Hayek's theories).
123. See F.A. HAYEK, THE FATAL CONCEIT: THE ERRORS OF SOCIALISM 14 (1988);
124. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 17-18, 30-31.
125. FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 60 (1944).
126. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 46 ("In any group of men of more than the smallest size, collaboration will always rest both on spontaneous order as well as on deliberate organization.").
127. Id. at 46-50.
128. Id. at 50 (emphasis added).
129. See, e.g., id. at 49 ("Rules of organization are . . . necessarily subsidiary to commands, filling in the gaps left by the commands.").
130. Id. at 50.
131. Id. (emphasis added).
132. See, e.g., C.F. Sabel, Beyond Principal-Agent Governance: Experimentalist Organizations, Learning, and Accountability, in DE STAAT VAN DE DEMOCRATIE: DEMOCRATIE VOORBU DE STAAT 173, 191 (E.R. Engelen & M. Sie Dhian Ho eds., 2004).
133. See also Sabel, Learning by Monitoring, supra note 32, at 138 ("[I]nstitutions transform transactions into discussions, for discussion is precisely the process by which parties come to reinterpret themselves and their relation to each other by elaborating a common understanding of the world.").
134. Charles F. Sabel, Pragmatic Collaborations in Practice: A Response to Herrigel and Whitford and Zeitiin, 11 INDUS. & INNOVATION 81, 82 (2004).
135. Sabel & Simon, supra note 27, at 402-03 (explaining that reconceiving the relations among these entities raises unanswered questions, but questions that suggest that new governance requires a rethinking of democracy).
136. Sabel, Design, Deliberation, and Democracy, supra note 6, at 104, 135-37;
137. see also Sabel & Simon, supra note 27, at 398-400.
138. I borrow this phrase from Simon, supra note 34, at 48.
139. Sabel, Design, Deliberation, and Democracy, supra note 6, at 140.
140. Hayek's famous writings against socialism began in 1944 with The Road to Serfdom and ended in 1988 (near the end of his life) with The Fatal Conceit: The Errors of Socialism.
141. See HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 78-79. He argues that the term social "came increasingly to displace such terms as 'ethical' or simply 'good'"-it "became more and more the description of the pre-eminent virtue, the attribute in which the good man excelled and the ideal by which communal action was to be guided."
142. Id. at 79.
143. Id.
144. HAYEK, ROAD TO SERFDOM, supra note 85, at 60.
145. See id. at 85-87.
146. As Andrew Gamble explains, for Hayek, "[t]here were 'constitutional,' not just empirical, limits to human knowledge," which humans could not overcome "through getting more of it. Knowledge was limited because the human mind was limited." Andrew Gamble, Hayek on Knowledge, Economics, and Society, in THE CAMBRIDGE COMPANION TO HAYEK 111, 117 (Edward Feser ed., 2006).
147. See also supra notes 61-84 and accompanying text.
148. See HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 56-59.
149. Id. at 11. Indeed, Hayek repeatedly argued that the crucial difference between (classical) liberals and socialists was not normative but logical.
150. See, e.g., HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 136 ("Socialism is not based merely on a different system of ultimate values from that of liberalism, which one would have to respect even if one disagreed; it is based on an intellectual error which makes its adherents blind to its consequences.").
151. HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 44.
152. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER, supra note 83, at 10 (internal citation omitted).
153. On Hayek's theories of "cultural evolution," see generally HAYEK, 3 LAW, LEGISLATION AND LIBERTY, supra note 15, at 155-58. For an exploration of the Hayekian roots of the contemporary emphasis on norm generation and informal ordering in legal scholarship,
154. see David Charny, Illusions of a Spontaneous Order: "Norms" in Contractual Relationships, 144 U. PA. L. REV. 1841 (1996).
155. See, e.g., HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 21.
156. Id. at 95.
157. Id. at 72-73. For a similar argument,
158. see Rodolfo Sacco, Mute Law, 43 AM. J. COMP. L. 455, 456 (1995) ("The point is that 'the Lawgiver' is a recent entry into the domain of Law and that law may live, and lived, even without a lawgiver.").
159. See also LA DIMENSIONE TACITA DEL DIRITTO [THE TACIT DIMENSION OF LAW] (Raffaela Caterina ed., 2009).
160. See HAYEK, NEW STUDIES, supra note 22, at 6-7;
161. see also HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 43, 99;
162. HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 34.
163. Grainne de Burea, EU Race Discrimination Law: A Hybrid Model?, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 97, 98 (Grainne de Burea & Joanne Scott eds., 2006) (comparing new governance with a human rights perspective).
164. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 194 (2004).
165. See, e.g., HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 43, 78. Consider, for example, Hayek's reproach of those who hold that "with the recognition of the principles of private property and freedom of contract ... all the issues were settled, as if the law of property and contracts were given once and for all in its final and most appropriate form, i.e., in the form which will make the market economy work at its best."
166. FRIEDRICH A. HAYEK, INDIVIDUALISM AND ECONOMIC ORDER 111 (1948),
167. quoted in Fritz Machlup, Hayek's Contribution to Economics, in ESSAYS ON HAYEK 13, 38 (Fritz Machlup ed., 2003).
168. HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 88-89 (explaining that "the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice").
169. de Burea, supra note 113, at 101 (quoting the directive, art. 11) (emphasis added).
170. Joanne Scott & Susan Sturm, Courts as Catalysts: Re-Thinking the Judicial Role in New Governance, 13 COLUM. J. EUR. L. 565, 566 (2007). I should add: although new governance scholars widely share this emphasis on dialogue and deliberation, their conceptions of the role of law and lawmaking in new governance are also varied and contested. For careful, detailed accounts
171. see Grainne de Burea & Joanne Scott, Introduction: New Governance, Law and Constitutionalism, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 1 (Grainne de Burea & Joanne Scott eds., 2006);
172. David M. Trubek & Louise G. Trubek, New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation, 13 COLUM. J. EUR. L. 539 (2007);
173. Neil Walker & Grainne de Burea, Reconceiving Law & New Governance, 13 COLUM. J. EUR. L. 519 (2007).
174. See, e.g., HAYEK, NEW STUDIES, supra note 22, at 80 (arguing against "the increasing replacement of rules of just individual conduct ... by conceptions of 'social' or 'distributive' justice").
175. Joshua Cohen & Charles Sabel, Directly-Deliberative Polyarchy, 3 EUR. L.J. 313, 327 (1997).
176. Simon, supra note 34, at 64.
177. See HAYEK, THE ROAD TO SERFDOM, supra note 85, at 83 n.3 (describing a "conflict. . . between different kinds of law-law so different that it should hardly be called by the same name");
178. see also HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 62 ("'[L]aw' no longer [has] a clear meaning.");
179. Id. at 132 ("During the last hundred years it has been chiefly in the service of so-called 'social' aims that the distinction between rules of just conduct and rules for the organization of the services of government has been progressively obliterated. ").
180. Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 19, 72 (David M. Trubek & Alvaro Santos eds., 2006).
181. In the new governance paradigm, professional judges and legislators engage in meta-analysis: they use reason not to reach right outcomes but to induce and evaluate the deliberations of others. For example, they may ensure rights of participation; grant remedies for exclusion; issue mandates or incentivize local actors to produce information, justify their decisions, and proffer comparative standards of evaluation; and award penalties for the failure to so engage.
182. See, e.g., Sabel, Design, Deliberation, and Democracy, supra note 6, at 145;
183. see also Dorf & Sabel, supra note 17, at 396-98;
184. Scott & Sturm, supra note 118.
185. Solomon, supra note 10, at 827 (suggesting that for Sabel and Simon "[n]ew forms of governance are emerging because of the limits of law, and further undermining of law ought to be embraced").
186. Ne Jaime, supra note 3, at 351.
187. Alexander, supra note 2, at 175 n. 351.
188. But see Orly Lobel, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 983 (2007) (refusing a description of new governance as extralegal activism).
189. Duncan Kennedy, A Semiotics of Critique, 22 CARDOZO L. REV. 1147, 1159 (2001) (describing legalism).
190. HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 78;
191. see also HAYEK, 1 LAW, LEGISLATION AND LIBERTY, supra note 13, at 121 (defining social justice as the "aiming at particular results for particular persons or groups").
192. See Dorf & Sabel, supra note 17, at 408.
193. Handler et al., supra note 3, at 506 (William Simon's remarks) (emphasis added).
194. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342, 468-69, 396 (2004).
195. Sabel, Design, Deliberation, and Democracy, supra note 6, at 125 (describing how new flexible organizations cannot assume prior knowledge of even their design choices).
196. Susan Sturm, Gender Equity Regimes and the Architecture of Learning, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 323, 331 (Grainne de Burea & Joanne Scott eds., 2006);
197. see also Joshua Cohen & Joel Rogers, Power and Reason, in DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN EMPOWERED PARTICIPATORY GOVERNANCE 237, 251-53 (Archon Fung & Erik Olin Wright eds., 2003) (proposing that under particular conditions "gaining the benefits of deliberation may well require direct efforts to address inequalities of power").
198. Lani Guinier, Supreme Democracy: Bush v. Gore Redux, 34 LOY. U. CHI. L.J. 23, 67-68 (2002) (describing work by Dorf and Sabel and others);
199. cf. NeJaime, supra note 3, at 327 ("I hope to position New Governance as a contingent model of cause lawyering that complements, rather than replaces, other (and specifically litigation-focused) models.") (emphasis added).
200. For example, Simon explains that rather than advocate for the direct transfer of resources to weaker groups, new governance tends to emphasize the indeterminacy and the frequent impossibility of assessing the risks and benefits of deliberation in advance. Simon, supra note 10, at 207-08.
201. Dorf and Sabel caution that even if redistribution can produce sustained social change, decentralized experimentalist deliberation is the most effective means to determine how to apply (and perhaps even distribute) resources. Dorf & Sabel, supra note 17, at 410-13.
202. Illustrating the point, Liebman and Sabel argue that, in the absence of experimental new governance means, efforts to equalize school financing produced "no or disappointingly little educational improvement." James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. & Soc. CHANGE 183, 204 (2003).
203. See, e.g., HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 18.
204. HAYEK, 3 LAW, LEGISLATION AND LIBERTY, supra note 15, at 68.
205. Id. at 176.
206. HAYEK, CONSTITUTION, supra note 13, at 76-77. Hayek similarly rejects the idea that individual responsibility is undercut by the limits of individual rationality and self-direction. For example, he writes (in a sentence with a confusing double negative): "[i]t is just because there is no separate 'self that stands outside the chain of causation that there is also no 'self that we could not reasonably try to influence" through experience, education, approval, and/or shame.
207. Id. at 74 (emphasis added).
208. Id. at 71.
209. Id. at 83-84. It is worth noting that, for Hayek, responsibility is "not a statement of fact or an assertion about causation," but a means to make man's "actions different from what they would be if he did not believe [responsibility] to be true,"
210. Id. at 74-75, and "a discipline that man must impose upon himself if he is to achieve his aims."
211. Id. at 72. Even if, he explains, there is no direct relation between selfcultivation and achievement, perpetuating belief in individual responsibility is likely to enhance human behavior, provided, however, that responsibility is properly restricted and defined.
212. Id. at 82-83.
213. Id. at 83-84.
214. See, e.g., WENDY BROWN, Neoliberalism and the End of Liberal Democracy, in EDGEWORK: CRITICAL ESSAYS ON KNOWLEDGE AND POLITICS 37 (2005).
215. For example, Hayek explains that "if we speak of the 'sense of justice,' ... we refer to such rules which we are able to apply, but do not know explicitly." HAYEK, NEW STUDIES, supra note 22, at 8.
216. Id. at 45-46.
217. Indeed, Hayek aspires to make justice objective and repeatedly rejects the Kelsenian idea that "from the point of rational cognition there are only interests of human beings and hence conflicts of interests," and the corresponding idea that justice is "a balancing of particular interests at stake in a concrete case." HAYEK, 2 LAW, LEGISLATION AND LIBERTY, supra note 24, at 53, 39 (internal quotation marks omitted).
218. Id. at 88;
219. see also Id. at 38-39.
220. Id. at 31-32, 90-91. For Hayek, individual conduct is just when it conforms to an abstract rule of law. That rule of law, in turn, is just not because a sovereign has deduced it from explicit premises but rather because she has tested its potential for "universalization" against the "whole complex of rules which in fact are observed in a given society."
221. Id. at 51-54.
222. Id. at 32-33. For Hayek, "how far [the] duty [of the organization] in justice extends must depend on its power to affect the position of the different individuals in accordance with uniform rules."
223. Id. at 33.
224. Id. at 67-73 (discussing "the inapplicability of the concept of justice to the results of a spontaneous process"). 152. For example, Hayek writes: Justice requires that in the "treatment" of another person or persons, i.e., in the intentional actions affecting the well-being of other persons, certain uniform rules of conduct be observed. It clearly has no application to the manner in which the impersonal process of the market allocates command over goods and services to particular people; this can neither be just or unjust, because the results are not intended or foreseen, and depend on a multitude of circumstances not known in their totality to anybody.
225. Id. at 70.
226. Id.. at 69.
227. See, e.g., Sabel & Simon, supra note 27, at 397-98, 400-01;
228. Dorf & Sabel, supra note 17, at 288.
229. See, e.g., Charles Sabel, Dana O'Rourke, & Archon Fung, Ratcheting Labor Standards: Regulation for Continuous Improvement in the Global Workplace, Feb. 23, 2000, http://www2.law.columbia.edu/sabel/papers/ratchPO.html;
230. see also Sabel et al., supra note 28, at 8 (explaining that new governance "creates a collaborative and mutual accountability of center to parts, parts to center, parts to other parts, all to the whole enterprise - and to the public generally").
231. Cf. Kathleen G. Noonan, Charles F. Sabel, & William H. Simon, Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform, 34 LAW & Soc. INQUIRY 523, 555 (2009) (linking accountability across layers of review to the duty to articulate).
232. See supra note 131 and accompanying text;
233. see also Alexander, supra note 2, at 133 ("Many new governance scholars . . . 'bracket' critical questions of distribution and power.");
234. odrguez-Garavito, supra note 2, at 209 ("[T]he governance paradigm tends to bracket power asymmetries.").