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

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 quot;legal pluralism,quot; quot;responsive law,quot; or quot;reflexive lawquot; 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 quot;social normsquot; 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 quot;after the welfare statequot; at the outset of the twenty-first century