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

43 Pages Posted: 4 May 2008 Last revised: 29 Oct 2014

Peer C. Zumbansen

King’s College London, Dickson Poon Transnational Law Institute

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.

Keywords: neo-formalism, neo-functionalism, law-making, legal regulation, rule of law, welfare state, responsive law, reflexive law

JEL Classification: K10, K33, K40

Suggested Citation

Zumbansen, Peer C., Law after the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law. CLPE Research Paper No. 13/2008; American Journal of Comparative Law, Vol. 56, 2008. Available at SSRN: https://ssrn.com/abstract=1128144

Peer C. Zumbansen (Contact Author)

King’s College London, Dickson Poon Transnational Law Institute ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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