Law After the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law

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 reflects on both the American and German justifications of market regulation and the Welfare State in order to trace the different evolution towards ‘responsive law’ and legal pluralism in the U.S. and ‘post-interventionist’ and ‘reflexive’ law in Germany. This comparison allows for an identification of the emerging transnational qualities of legal normativity in the face of a declining welfare state paradigm, which – at the beginning of the 21st century – appears to provide the stage for turning the progressive gains of the former era into a set of market-oriented justifications of private autonomy and de-regulation.