© Copyright 1987 by Walter de Gruyter & Co, Belin + reserved ncn tho of aslo into foreighinguages No pars of hi he epriced in any form by photon, mira, a any cher mes from he publisher 1 Cover Design ud Hable Betine-~ Seng: Say-Rechen- Zen, Bsn Printing: K, Gerke Betin Winding: Verlagsbuchbindere! Dicer Riki, Bern Primed i Cesnany European University Institute, Florence - Series A: Law + 6 Juridification of Social Spheres ‘A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law Edited by Gunther T Ww DE G 1987 lier de Gruyter » Berlin - New York This offprint is not for sale or reproduction‘Table of Contents 1. General Aspects Guster Tronse, Bremen, Firenze Juridification — Coneepes, Aspeets, Limits, Solutions Briaw Bracesson, London, Firenze Jucidificarion and Disorder Feaxcons Ewato, Paris Justice, Equality, Judgement: On “Social Justice” II, Labor Sriros Siwrns, Frankfurt Jurditication of Labor Relations Locdon perience in Jor Crans, Southampton and Lono Weoarnn JJucdification — A Universal Trend? The Bri Labor Gino Giwost, Roma Jucdification? Labor Relations in Taly IIL. Corporations Frieomeir Rooter, Prankurt Juriification of Coxporate Steuctuces Ricutaao Buxsavy, Berkeley Juriification and Legitimation Problems in American Enterprise Law Fraxcrsco Cons, Firenze Recent Developments in Ialian Corporate Law IV. Antitrust Kuaus J. Hors, Bern Restrictive Trade Practices and Juridfieation; A Comparative Law Study Ricinan Marsovrss, Austin, Texas Antitrust: Alternatives to Deiegalization V. Social Welfare Hays Zaciter, Minchen Juridification in the Field of Social Law Martin Parnixorox, London The Juridification of Social Welfare in Britain Authors’ Biogeaphical Sketches Intex 0 o us 163 191 au 2a 2s 231 333 373 419 439 43 Juridification Concepts, Aspects, Limits, Solutions Guster Trunnen Bremen, Firenze Contents 1. Introduction 2. Concepts 21 Legal Fxplosion 22 Expropsavion of Conflie 3 Depoitcizasion 24 Matevialization 3. Aspects 311 Function 3.2 Legiimation 33 Stroctre 4 Limits 41 Regulatory Telemma 42 Mutual Indifference 43 Social Disintegration dhrough Law 44 Tegal Disintegration through Society Solutions 51 Implementation 5.2 Dectegulation 553 Consol of SelF regulation 1, Introduction Juridfication is an ugly word — a8 ugly as the reality which it describes, The old Formula edt dese he exces flan ft ttn ere! mt feast had the heroic quality of seasch for justice a all coms, Today we no longer fear thatthe proliferation of laws will bring aboue the end af dhe world batwe do fear “legal pollution” (Ehrlich, 1976). The bureaucratic sound and aura of the word jurtdification indicate what kind of pollution is primarily tneane, the bureaucratization of the world (Jacoby, 1963} Bosetzky, 1978. 52), To put it in the language of sociology: Iaw, when used as a control tedium of the welfare state, has a its disposal modes of functioning, criteria0 Gunther Teubner ol eaonaliy and forms of organization whch are not appropriate the “tife world” steuctures of the regulated social areas and. which therefore either fall i acieve the dered bus or doso athe con of destsing hoe Structures. The ambivalence of jrdiieation, the ambivalence of» pustanee a fredom tata the sume me a depron of fecdam made ces the telling phase "the colonization ofthe ife ward whch was cose py Habermas Soval moderation athe expense of subjection othe kage cf the system and the destruction of tac sol ucts the esence oth ‘es (Flabecnay, 1981. 522 1985:209) Eapressed inthis exteme, drama form, juiifiaion describes ealty which i nox mecely 2 problem of jurist, nora atonal phenomenon Var recichg does 0% ony soring fom the wellknown estore evden towards overregultion, 30 the dcuson af the protem is no conned te German jurupeudence" Although nauonal dnergenel ext foce Daan 1947) the phenomenon is niversl, and the debs mernationa ted edi sipinary, Inthe United Stats in patcolr a ely debe sping on shoe the “legal ‘explosion she “epulatry ers” and elegans debate which not ony lawyer and farts but ssiologiee and eecnonis ate partctaly involve! Ione atemps ~ and tis the ait of the es dictoryesay ~ toring wogeter some of the different sania is dno: Sion he resuks may be istrvctive forall sho paripate in the debate National peculiarities wl then be able tobe seen in tne lignes hee unser Clements. Socologalgenerlraons ean be eoreced when viewed fon within the lf they ate see against ses legal material On the eer hand “bunzaio of te sy fre pepe coat be hoped for Gxtatopal modes of iueepretton are setaly taken up and noe spy dismissed, However, one mun remain septcal about the possi that noch leaning. proces wil actualy lead to. pespectses for solutons, The problem of jurudcaion” to aba formulated for hs a sachs Peshaps even insoluble. What can br ahived is emt soso to ohne tueston: How and whatexcent thc expansion of lw netic cacao ronment contingent and reerable or necessary and ircncaer and one Conneted to wider societal development How and where ane he hog af legal growth becoming apparen®\ As can guidelines for Shino gah growth which sles damaging the social ensronmene be piven? Fas ast these complees of question: proposiion can be elaborated Te Roe omplexconcers the defintion of the problema uriieston lthe sare dite the tem has cone t designate 50 many diverse phenome tor must he carey dlinied before aay senile pronouncetnerts con be mee shou ie a alls satel uminating to subsume al eadenccs cover For previous discussion of “creeping legalism”, ef Puller, 1969: 3; Shukla, 1964; Nonet, 969; Friedman, 1975; Calan, 198911, 1381147, Abel, 1980-47, 1982, Minick, 1980; Wilson, 1980; Breyer, 1982; Sewart 1985. Cl the resus ok 1 German/American conference on cegulatary contol Trubeh, (988 ston — Concepts Aspets, Limits, Solutions proliferation of law or all legal evolution under the hesding “uridification In such a case one would have to be content with 4 meze stock-raking of contradictory and heterogenous developments under the relatively arbitrary heading "Developments in Law in the World of Industry, Work and Social Solidaciey”. The phenomenon of juridification becomes subject which is aoalyzable, interpretable and statepically appropriate only when — and this isthe frst proposition — itis ieauied with the type of modern “regulatory Taw” in which law, in-a peculiar fashion, seems to be both politiized and sovialized. This type of law must then be related to Max Weber's concept of "materialzation of formal ls", This will provide an analytical framework in which both naive delegalization recomendations ofthe “alternatives to law Inovement and politically motivated “de-regulation” strategies can be adequately and critically assessed. Here the changes whieh law itself, in is function, legitimacy and structure, has undergone in the process of juridification also become clear ‘The second complex of questions relates 10 limits to the growth of regulatory law, sit possible co discern fundamental limits of jurdification in so fas ascertain jurdification processes prove inadequate in the face of rexti= Inted social structures and/or constitute an excessive strain on the internal Capacities of law? The agument I would lie to propose here i that this is noe inerely a problem of tke implementation of law, nor of the use of state power, thor merely of the effsiency of lw in terms ofthe appropriateness of means 10 tends, but itis a problem of the "strata coupling of law with politics on the tne hand and with she regulated social fields on the other. Once the limits of this structural coupling have been overstepped, law is eaught up in an inevitable sation which I propose to examine moze closely under the Treading epultory trlemoe Ti thus, che “regulatory criss” is adequately interpreted, the third question that arse is how to a8sess the various proposed therapies and altemnative Strategies Are there alternatives (0 jueiification which at the same time do justice to the social guidance requirements of polities, the special properties of the espective social areas and the inner capacities of law? The proposition T ‘would like to pur forward here is that neither the various suggestions on Eupeovements in the implementation of law nor the nemerous recommenda tions on dclegilization take adequate account of the problem of structural coupling. Intellectual attention and. institutional energies should be Concentrated on a series of conceptions which go beyond materalization and reformalization and amount to mare abstract, more indirect control by law. ‘What these conceptions have in common is that they look for models of “so- Cialication of law", Among the relevant terms here are: "semi-autonomous social fields" (Moore, 1973: 719), “negotiated regulation” (Harter, 1982: 1), “officially sponsored indigenous Jaw" (Galanter, 1980: 26), "proved: ralistion of law" (Wiethslrer, 19828; 36, 1982h- 7, 1988), “ecological law” (Cadevr, (984), “reflexive law” Teubner, 1983: 239Hf,, 1985: 29917, 1986b), and “relationing programmes” (Willke, 1983a: 62); in short: legal Control of self-regulation (Teubner, 1983: 2398). This verm refers o diferent legalprograms which, sometimes more, sometimes les explicitly, define structural ‘coupling 28 “legal se-resirainc” and which, therefore, ace appropriate as a means of reducing legal pollution, 2. Concepts A precise use of tcnos and definitions is necessary, especialy inthe ease of junifieation, not jus for the sake of terminologies Clary bat, a aleendy indiated, to state a working framework in which to examive the comple phenomenon of juridifeaton, Punternore, when we are Using teat poles aia Beagrie clarity or ony enable as ‘hake defintsons but also provides options. Options are empirical analyse the historical station on te bai of which eral stcoments remade suategies chosen and decisions taken (Labmann, 1981: 118% Rouleuthner, 1985: HL). Nowions of urication avays contin a hear ofthe coalitions in which developed, an evaluation af s consequences and 1 srteyy for dealing wi iA easfication of the term would therefore have to ly bare these three elements in the diferent ways in which the terns used. Rete sane ine ul vet sae the reasons why on afte opons final 211 Legal Explosion Jn legal discussion juridifcaion i described. primarily as a growth phe: nomenon’ Fearliden term nich 2s “lod of norms” ox leg explogon® (Barton, 1975: 567) underline the disquieting effect which the rapid expansion of lw as had an the lel profession andthe general pli ale Especially in those areas ofthe nw wich cover the word of indusey, labor and social selidary — labor law, company laws anise lan soe security law — the enormous quanitative growth of norms and Sandards i reed and ericized. From a certain threshold onward, those involved ae overtaxed, The enforcement offaw is damaged, crdibitysufers and x high level of dogmatic mastering of legal material becomes impose (lela 1981:814. Ill furry of la secam he chserved from a comparative per spective tat cansiency contol of norm and decision making material 5 well 28 the constretion of eonepalsracores~ he wo clase ase of lal slcarine is giving way to & new mode ol thinking ~ “ease-w-postivsa” 2 Zoellner polemeally terms it Tht style of legal thinking conten nase developments in judicial decisions and to produce ahve crs of theit “policies As an obverver from outside has noted: “The eaasrout ate ®f mover positive law les inthe incoherence of large numbers of nom ‘which are predced procedural in response toa pareular station ands ® emer, 197% 617; Bocsin etal, 1978: 295; Hilrmeier, 1978 321; Weis, 1978: 401; Voge, 1979" 321; State, 1979: 208, Sender, 1979, 227, Baron, 1975 ser Juciifenion — Concepts, Aspects, Limits, Solutions then lumped together in disordered heaps, No adequate means of coping with ‘his material intellectally has been developed” (Lulimann, 1972: 391; ¢f- also Hegenbarth, 1983:67), ‘OF course with a tem like juridification, if ics geared towards a c sowth, the therapy is implicitly contained in the term itself. Growth itselh Inst be combatied, The prescription reads as follows: rationalize legislation, {educe the number of regulations, thin out the stock of laws — ie short, Simplify the law>. However, scepticism based on historical experience with Such appeals is not unjustified, and perhaps makes one more receptive to the Cynical proposal to zy the exact opposie remedy: “growth-boosting hormone injections”. The experiment has already been ried with weeds: accel tration of growth beyound a0 optimum level isa sure means of extermination (ahmann, 1981273) ‘Yer it stl seems goo narcow an approach to concentrate on the expansion of legal material, on the extension and intensification of law. The current Ccikicism of juridifeatan processes under the general heading “flood of hhorms" scarcely seems an appropriate starting point because it limits the Giscussion in several respects. The term “flood of norms” merely stresses the ‘awanttative aspect of the increase in lal material — a problem which could Certainly be combatted by technical improvements in legislation. In fact, qual tative aspeets are moreimportane: what changes inthe content of legal struc tures has the (alleged?) crisis of jridfication brought about? The re “flood bf norms" is also historically unspecific — throughoue the centuries Complaints have been made abot the proliferation of laws and theie intricacy (Nore, 1974). Juridificition processes should in face be analysed in terms of the specific conditions of the modern social sate, “the interventionist state’ This at the same time excludes the law-centered and. lawyer-centered perspective of the “flood of norms” school, which concentrates exclusively on the legal material as such, The problem to be addressed is broader in seape the political and social appropriateness of jurlification processes in various Social areas (labor, musket, company, and social security law). Faally, an attempt should be made to abstract From the national peculiarities ofthe flood ff norms and, adapting a comparative perspective, © bring out che universal features ofjuriification processes and the problems which reslt from them, 2.2 Expropriation of Conflict fone attempts to correct the myopia of the legal perspective by means of the ‘optics of legal socilogy juridification suddealy appears in a quite different Tight ‘The "politics of informal justice” in the U.S, and its European equivalent, “ternatives eo law", come to the Fore while problems of growth recede into the background (Abel, 1989: 27; Blankenbucg eta, 1940), Sociologists of law Ulesribe juridifieation 8 4 pracess in which human confers are worn through formalization out of ther living context and distorted by being subjected to 2 hai, 1976: note 1.Cf, the references in mote 2 supe5 Gunther Teer legal processes. Juridiicasion, as it were, is the expropriation of conc Christe (1976: 12) even use the expression “confers propeay™ Tha cevainly an extreme formulation, but cleat ndeaes We eon ofthe snl: Doabtis ast om whether lw can fail wha generally repaticd so hve nied Fn whch connie “bss the adopts conte {nd cos of proceedings ss well 3s proceatl inequality of chances of aces” Uegenbarth 1980: 48), this view judiicaion does no solve conics ba alienate them. 1¢ utes the social confi eating tt a eg ese and thereby excludes the possbliy of an adequate ute eviened, soll rewarding resolution Ie confit ar thin expropriated by juridification, the slogan of se deega law informal modes of defing with cons are soph odes whit a take confit ou ofthe hand af lawyers and ge chem back to the pepe Certainly the people wl achive a solution wo the confit inthe cel seal world nt ony inde illusory world al legalconcepes and procedures Insituonal propos and experience, Blankenburg, Gotwal Stempel, 1982) range fom ceinfrcement ofthe abitration elcent cour rroceedings! 1 he extension of ourof-court proceedings tothe Esablshment of “communiy courte” in big chy eighbourhowts (Dana, 1973: 1) Comparative legal and anropological suis of Nhe pavers Area, of arbtration phenomena in Japan and of Soil courts arer Tea socialism arth inpiraion behind these alernatives law" These ideas of ommunal lw", as Galater gh terms ic Calamer, 1980), have been severely extcied in she socbrlega Uncusuoa, Abe pronded the idelogy-crdica, Hegeabrth he confheethenretra ood {ban the seashore arias ofthis crim (Abel, 1900, een harth, 1980; Luhmann, 1988). To pot briefly “a tem wo “infernal Power conselaions, Secondly, “akeratvs to law™ fore cuca ac tating th conte under modern conditions of role separation. Tied they underestimate an indapeneable function of law in fonctonaly deren, tated societies — which ito use the pousliny of onli ia onder to feveralre congruent expectation throughout suis. They may, ofcourse, Be able co formoltewsefl reform proposals which could cea acesse social potential for satisfactory conflet resolution, buethey are scarcely Appropriate a a general perspective for iterrengjuidifeaion sd for +A valushle analysis ofthe diferent dcection in which the movements towacds ‘elegaliston s gong ir offered by Rabi, 1982, 15, Ege active role of the judge, seulement, aegatatons aimed at reaching an amicable agreement: see Giese, 1978: 117, Rab, 1980-279 Exp, aritation cours, court within companies and asixiations see Bend 1976. 198; Bietrager eal, 1978: 1 Jurifienion — Concepts, Aspects, Limits, Sfutons developing alternatives to dejuridifcation. This is ultimately hecause she ‘current discussion in legal sociology has confined itself to the classical tasks of law (conflict regulasion) and has only marginally concemed ase! with the really explosive aspects of modern juriilieation (socal regulation) Saciolo gists of law have concentrated. their attacks on the -unsstslactory Consequences fora continuation of harmonious social relations when hum contlics are delivered up tothe court system. But how relevant s this eriicism ‘ofthe judicial system in ace ofthe far more disquieting tendencies of a polit tally. inseumentalized law, which threatens profoundly to charge entire social spieres through its regulatory interventions. la compatson the legal sociological formulation ofthe question seems somewhat harmless, atl almost, provincia. 2.3 Depoliticzation In view of these belittling definitions it is perhaps as well wo look at the historical origins of the term. The word Verrehtichung (juridfieation) was first employed as polemic term in the debate on labor law in the Weimar Republic, Kiechheimer used itto erticize the legal formalization of labor rela tions, which neutralized genuine polities! class conflicts (Kirchheimer, 1933 if, juridifieation of labor velatinns ‘means. 10 the political dynamics of the working class movement (Fraenkel, 1932, 255). Critical Inhor lawyers in West Germany have recently renewed this line of argumeac. The ambivalence of jridficaion — the guarantee and the simultaneous deprivation of freedom — is clearly worked out with examples from industrial relations law, codetermination, strikes and lockouts, ‘On the one hand labor law protects and guarantces certain interests of rmplayers and ensures that labor unions have scone for action, Yet on the bother, the repressive character of juriilication tends to depoliicze social contfits by drastically limiting the labor uosons possibilities of militant action (Hoffmann, 1968: 92; Daubler, 1976: 29; von Beyme, 1977: 198; Erd, 1978 Voigt, 1980: 176). This kind of ambivalent jordification and its aceestance by Jabor unions is explained interns of the ineraction of she interests of specific ‘rade union groups with state control interests: urdification reinforess “coop trative” trade union polices, jst as iis reinforced by dhem. This teraction ‘of course occurs atthe expense of “conficive” trade union policy (En, 1978 19) Here soo, the counter-strategy is implied. Only when labor union policy hanged co “canflicive” strategies and stressed autonomous representation of interests could juridifieaion processes be eeversed and labor eonflets expo livized (End, 1978: 26, 251; Rosenbaum, 1982: 392). In fact this Iimerpretation of the tem inns clear advantages over the lawyer-centred and judiciaey-crtical formulation of jridifieation. It rakes account of ce effects ff the proliferation of laws on regulatory areas, stresses qualitative 3 well a8 ‘quantitative aspects of change brought about by law, peovides differentiated Sualyses of the ambivalence of the phenomenon and, wil itsconeept of depo-19 Gunsber Teubner Iicieaton, has cersnly pinpointed one of the mos important consequences of juridifcation processes. Nonethcless, it it in several respects an aver-simplification. Simits has pointed out the, as it were, “voluncaristie” nature of this concent of luridification (Sinus, ifea: 134). The key role of the “conflieive/coopera tice” alternative implies tat the dynamics of juridification ace primarily a strategy problem ofthe labor unions: the concepts restricted tothe polities of organised labor. Yee it also necessary to paint out 4 national limitation i this concept. Because tendencies of “cooperative” wade union policy are highly marked, especially in Germany, it is tempting to regard "junds tation” as a "German speciality” (Unterscher, 1972: 190; v. Heyme, 1977. 18). This iy a debit comparative Tegal terms, and it shows that the theoretical connection between “cooperative rade union poiey” and juridif- Eatin is far more relative than it appeared ta be. The limiatione of thie per= spective lead finally 9 a theoretical deficit. The atempt to explain jurliieation in terms of iatra-union preconditions and the collusion beeween Jiecision-taking groups in trade unions with legislation and judictry (Ld, 1878: 13; Moritz, 1980: (71) can perhaps be accepted a6 a particular ‘explanation of interests and influences opesating in this area, bus cannot be regarded as a chss theoretical analysis, le alone as a companens in a social theory of jucdification phenomena’ This concept of juridficaton hardly seems inappropriate, not so much bevause it is normatively limited 10 particular social interests bur because it is Timited to the labor union perspective and abstain from socio-structuralexplantions, 24 Materilization We have examined and found wanting the jurstic view of jurdifcation asa ‘ood of norms" he cancept of conflict exprapriation propounded by soci- ‘ologiss of law and the palitieal science pesspective which ses juvdification 38, rextcting the room for manceuvre of Social movements aod interest groups Soo arrive at an adequate formulation of this problem we will have 10 5 lheyond those disciplines and draw on the great sheories of legal evolucion in the wadition of Marx, Maine, Durkheim and Max Weber, 48 continued by Paysons, Unger, Nonet and Selenick in the US. and by Habermas and Lilmann ia Furope!. OF enwrse we cannot even begin here to distangle the complexities of legal evolution. On the contrary, we will merely attempt 19 hi i noe mesos 98 an overall ecsm of the very use analyses of End. I simply stems noteworthy hat Fr Gel makes a vehement cat of te livid ature of val explanation, at thes for hi part prc very nied expan tin, teresting nuances ol hs explanation are fount eecesty in, 1984 Wi respect of Parson theory of norins, which ean only be reconstructed From sestered ragments cf Dame, 1976 For ore rece theories of egal development inthe US, see Unger, 1976; None and Selznick 1974; Haberma, 1976.9, 1981 322,522,198: 203; labman, 1972; 19814. Fora discussion of tories of exoinion ‘law se Rosleatier, 1383 Juridieation — Concepts, Aspect Li, Sofutios " take up afew strands rom the tangle of heoey ant combine them nach a Say ib 10 further our camprehenion ef juridfieaion. And. hefe the disineion troduced by Man Weber berween "formal and materia lin Stinoern aw wil pay actual vole (Weber, 1978-644 Fil, she wider haorcal conten: of fication becomes cleat, the context ofthe development of she modern welfare sate Habermas anais {Goer 522; 1988" 209) pareular shows how inthe modern era aw bas ‘sponded fo global socal developments mith varius truss of vrdifistion Tilrin tupthae influenced the development to which they responded Habermas dixingushes “in a cough fasion” between four epoch making wy ofjureieation, The fs ort led 0 te bourgots ste, which sn Stopedelopedin the form of sbsohuor. Law yeacted ste differen: fation of the two frst subse — econamy and pois — ad sae funded their new atronomy in eal foran Here the made fraser of Ei aw onginted and formed the common saring poi fr the ne se ‘Shvinton between “mteraized” areal chillaw such abot fawy ats ‘company law and soil scr Thecasical sem of ci aw vas itoged to staegially acing legal persons who caer into contacts with ome another Thi eal onder eats he featres of posit, generality ad {Crmaliy, avd is eonstucted onthe bas ofthe modern coneipe of ator Taw as well asthe concee of the legal pertny as one Who can enter nto omac aire, dupowe and bequeath propery ‘The legal order has to fuaranee the ery ni propery of the peivate person the cereiny ofthe IN Giechanebee an the Formal exo ofl egal sobjcets here the favs and chreby che ealculabily of al legal norted acon” (Habermas, 1985205), "The thee thre of jridicaion which followed, of which she lise of poruclar invest for us are deseribed hy Habermas 35 historical counte-movements 10 the cffeention of the economic and polcl SJstem, more pret asther legs, democratic and Socal consiatonalea- tons FLabermas’s words thst be ndestond as follows "a Hfe-wold whch was aft paced athe disposal ofthe marker and absolut ule ie Byline makes gota ts line (Habermas, 1988: 296) Inthe fit sho Iegaleonsintnalization the system of cv lar was coordinated wth se ‘orc of power thatthe pine of the legally of admitation could be inerpreted. in ter of the vrule of Maa” Uns fther-thrse the dora ation af the eonsituionalized power of the state was msroduced bylaw. Universal and equal franchise and freedom of organization for Police ssocaions and partis legalized the pois processThe ls threat Fjundifeton, tha which occured inthe sil sate i of cuca por taneeto aur subjece There, the uration ofthe moder word ot istey tnd labor the line of freedom-guaranteing jeriffcaon was continued teonanicsstet The sci state controls he economic sytem in simile fashion to hatin shich the owe previous thesis of jriiiation controled the politcal syste (Habermgs, 1985208). Te eolectve bargaining stm, noun of employee pooection, she complicated netwoth esol sectn Gunther Tester prteion, te inenscion of company coats a alas rw interventions in the market are all part ofthis latest epoch making thrust ot juckificaion in which the intervening soil sate uses law ua mean of oneoltoconvtstonalie the economy. T this analysis baialyconrect shen ewo imporans conclusions may be dawn. First, ou analysis ofthe problema ardficaon should concent on the thrust of juriiiation inthe socal sate” Juriifiation cannot be uellly analyse a uiversl stra phenomenon. Rather te ask bet analyse specific form of juridfcation, which can only be enderstood in ior hol comtexe (repent ClskandWeletn, i) The most presing problem a he moment i how to cope wih the pea int of jraiicatton which occurs the welfare sae, one in which used as contol medium for state interwenion and compensation. The problem Becomes one of the “letmacy snd desirably of ae mene No (arg, ina. ew, concep of uration deed aoxeappeae either too abstract thir approach or only pata apects of s wider problem, The proliferation fla, or example, hoes phenomenon sichram be analysed or even combated as such but ane which can only be indersiood ia the context of social guidance in the socal state The “ood Of ns ot many prem for aw acy but one fo the framework of analysis chosen herein 59 fara elaseal justice 8 concemed, buciecomtesrlevane agin ins far ae these are gered oy ypc for of welfare sie intervention. Finally, the reswrction of autonornous socal fr0ups reduced to the stats of one of several problems of itestion sh te welfare state ia which the ambivalence of the puarantee of heedom and the deprivation of fcedom i expresed The second contusion oe drawn that — despite political formulae such as deregulation — dlegalizaton cannot he seriously considered as a counter Strategy (Hop, intra). it correct that furiifieaton inthe wellae mae parcol an epoch-making thrust of development then it cannot he fevered by tee polities devon, fet lon by an soled decison about moe law less Iaw. The lond of laws" cannot he scmmedby dyer and dams beat an be channeled. Nor ean juriifston proveses in industria riaons be reversed an cerainly nosy ash of trade union ply fom ooperstve to concep And ie berger pep of developmen any se galiration of conics ily co he merely marginal. Te alteady competed Kinonaleilfereniation of sci wih welfare sate sruturs does not permit “alternatives tolaw"atben ic permitsaternatves within aw Radical demands for dleglisation — which sugges thas the juridieation process as sich could be reversed — are simply illusory” Indeed the Jurication versus delegalastion acemaive should. be abandoned Completely ae replaced by'3 formulation ofthe problem which rcagnies Sina definitions are given in Voigt 2984: 175 Dreier, #980; 1983: 1015 Ronge, $5 Werle, 1982-15 Sint infra 1134 Jridiication — Comeapes, Aspeuts, Lit, Solsins » the juridification thrust within welfare states asa historical fat but also reso Iutely confronts its dysfunctional consequences. Certainly the problematic results of juridification in welfare states are fae clearer to us today than they were when the process began. But this shou not blind we ro the freedom gua necing function of jrilification processes inthe intervention state (Voigt 1980: 15, STabermas, 1981: 530, 1995: 298; Heldrich, 1981-824; Zacher, infra). Even from a aosmative perspective juridification in wellare sates Should be accepted a¢ such and reforming attention should be directed t0 Compensating [or negative side-effects, although of course. ever ‘compensation inevitably brings dysfunctional results in its train which in er require correction, and s9 of and so on (Simi, infra; Partington, infra). 3. Aspects In order 1 examine more closely how law eansorms elf in the chet of iurdficaon in welfare stats, ie helo take wp Max Weber's famous lininction (1978: 6341) beewcen forms) nd material legal exinaly. I takes lear what effec are produced when the rale-oF aw avientation of {Miscl aw i overtnlby a wellarestae cremation (1978: 8) “Move than halla entry ayo, Max Weber, whore main sociological interest wate temion besween material and fora ational inthe mos diverse Meas of le, described. modern European fm and to lesser extent Anglo-American la 2 formal ational The formalization of lve part of the great rationalization proces ofthe moder era analysed by Weber, which developed parallel othe diferentaion of economies, politics and sence 3 Spheres of tein. ‘The legal system is one of formal ronal to dhe exten that professionally rained ners orientate chemaleesby universal norms trod conertely, othe exten tht in legal procedures, “im both subanive Sh procedural anes only urabigubus general characteris of the fac af the cae ae taken in account (Weber, 1978: 56). Im modern legal Toomalim a coneepally“Incemsingy logal sublimation and deducive ‘ior of [nos pralled bya procera element, am increasing ational {eelique in, procedure” (Weber, 197% $82) "Weber-analyeed eran yocestes of legal development in which powerful soil interes 50 inl thed he la at seasfor is orenation trom he pray materiale Sah othe formal soscepty abstract and procedurlyeatonlied orient "Yer at the same time Max Weber also emphasised cern an-formal elements in modern legal developmen. Inthe In of contact for example Such remateiaization manifested ie n “an ieresing pasclrizaton of in” and_an increasing leghlatve and ical contol et the content of Contac For Weber tis meant a threat to formal esioaly by norms of ‘erent quaiy. "thermo whic sobwasiverasonaliy accords predemy saree include ethical imperative, wiltaran and other expedient les, and Dolical mann, all of which diverge fom the formalism of the ‘external hae SGerisiosvariesy a8 well ax from shat which was logical abstraction”Ginter Teulner Accosding to Weber, he inrer quality of highly developed legal euture would be damaged; “the jurisie precision of judicial opinions will he seriously impaired if sociological, economic, or ethical argument were ta take the place ‘of legal eoncepss" (19742494), ‘Weber traced this recent partculariation of law to various causes. At force hhere were the “social demands of democracy” (1978: $86) for imerventians ofthe welfare sate. Material demands are made on law by interest groupe «specially labor unioes. Oxher interests in industry also bring about iiHeece ‘uaterialvations of formal law. And! finally lawyers themselves being aout change “hy new demands far social law" ta he hased upon sich emotionally colored ethial posulates as justi" or “hucnan digniy"™ (Weber, 1974: S86), However compared with the extremely powertul processes of she formal rationality of li, Max Weber eegarded theve material tendencies as al sn all only marginal, In modern theories of development these. tendencies ave assensed very ilferendy. "Materialization of formal law today appears as the dominant development trend and evolutionary approaches are brought ino play to explain i". The trend towards juridification in wellare sates whieh expresses iself in the materialization of formal law characterizes large numbers of egal control intervensions in areas classically regavded as sel-reg tulaing (Hart, 1983: 10) inthe world of industry and labor. The main easoes intervention — and this applies to labor las as wel a co company, aoei> leustand social securiy law — are che appearance of phenomena af economic Power and/or a societal need for sociat protection, Jusiifiction in welfare states can he further defined in term of theee processes of change with gard to fonmal law: change in the Function of aw in its legitimation and in ts perm Compared with cascl forma! Ie, materitized lw in dhe industrial world ts taken'om anew socal hinciom, [vis no longer tall ony We de normative requirements af confit sesolason bu to he polteal fee wenue reauiements ofthe mover wellare ate. ean be inane aed for the purpose of the polit sistem which now takes on tespansbity ox ad iocesses — and his means the defnton of goat te oie of norman seas, he ordering of concrete behatlproeams and he inlenereen ‘nor. lsrumenaieation mos evden iptocalccunay ek eee simsensions for which Zacher inka: 379TH aes heer eeealantcn se ieznliaton. Here ve itemalzed changes m whclcisnted caus aa ise ransomed for soil purposes, are highly ineucne, These or "der, 1978: 247, Tor materitzaion trends in American lew, cf. Unger, 1976: 192; ube, 1972: 11s Turkel, 16-8131 For Geiman analyse of acon aeration, see Wieaer, 19672514; Wiehiten, t¥2a, 1988, Asonane shal, For these dineasions and heir application 10 a third ype of lw ic sefenve law ef Tealner, 1988-252, 1085" Sos Juihficaion — Conceps, specs, imi, Sokrions bs Ao roiemarc a any ese conor ops inf. 981) er. Soon insrmentaieation Seoms not very leas marked i the fie of Soman wether, however in certain areas such 8th leg definition of 3.2 Legiimaton ems Matriaied law atthe ste tne derives a new inne leat fom his ne fanion, Whereas oma isa wed al be td he {shmitaion of abwracr spheres for private utonomods action= material law Iegiimate sell bythe social ress achieves by regulation. “La justice fe ser rele bv jie norma enoaaiue™ (Or {984 46), The egtinaton his from autonomy to regulation. Even inthe Sill more formally oriented ea of company and ant fe thereto St ieee regulation ae braking through In company law an if anything SascungSchiteatin” can eobnerved which cally amounts to regula ions fo the protection et sharehlders and ininones (Wiedemann, 1940 14?) The regulatory intentions for clearer inthe case of regulations on cade "imation an he prob Rl ni) Iman a Imation s sui inthe aves of ndeet ether than diet contol of ecanomic Behavior, Yer here toa regulations on market behavior and the abuse of marker power are clearly phenomena of result oriented direc contel (Hop, infra 88s Mackoo, tras 34811), , — “This wesformaon of fnetion and lginaon wigs by juicaton ties ley ates rm ese a «i #4 tS chnges metho af ners fae Wiha, 85) In or Kenedy, 1973 551, 1976: 1685; Unger, 1976: 166; Heller, 979.6 Gants Vener the tenleney towards parclarizaton was obsereale at an eal age (Si inna 119). Ciel formal lan using the concep te elgg rated fom socially leant fatises tnd wan treloreacanel of or real pawer positions ode png foresters tou ‘hy means coma tera abr fw delay etendat te crate fally eleva feaures through ts define ote employer snd enone Fonte, 198. Labor fw thus made formal a mater hese that internalized fests that vere prenouslyexralega Ths eesponon flaw from general nouns ta spectiepostsnal oles probably one ole Insect changes inthe oar of modern jrifatan (Reade 1367197, Tuber, 180" 50; Koendgen, 1981.12). Here to, os sd socal security aw ate cemvaly alles the changes in connapy Ine an antirustinw nr less ting. The counerpan operon tus law is the process of gearing to speiic market srceues reli hc Same belavior may be jag Sifeseny depending onthe marke epg top, ina: 31211. In company law 400% growth i posaonllyspco thinking has been noted under the heading a ae an nate ks 565) ‘A further several feature of jrilcation in social snes i she unstoppable se of "purpose aw” is no acide thatthe eaegied metho vas not inched sn Svigny' canon of meth yet ts dominion Ser other methods is move orl eneraly recognized today Indeed te term “Teal polices ges eve further and leianaen a Continent ae the poley thinking which so popular nthe U.S (Steindor 1573-200 1973). Cac av and company lw ay be considered two claial rea of the cons beeween wo modes of eal sinking. tr oth areas aly Sviomed legal sinking pensaing i sea of ese! foal la leading 10 dificl problems, sich atte selon between codcterninage law and adi! company law in Germany. (Wieden, 13400 cor, Kabler, 1941367) and he confi betwee te i tw and the antes coneept of contae (Hop ina: 27), ‘sagenral ule itcan besa thatthe predominant ele oiatation ie bsing icreasingy over by an irene onenaon, Aeon to Sete “Sovereignty of purpoie” isthe mai feature ofa reponane bs skier coe only deel in he context of te sci ene Nome ana Selene 5 Soh Instead of" sity applying precy dlined egal norms, Ceondioea program), legal experts now tend 19 almineridefnedssdeede el Sage genera lass (purpose programs), Ths casing desma le the mode of legal shiing ashi which con be sdequsely ened fy ie term rule onention” Flowews he consequent alts st for lea Shcine are Tat fom being adequately worked our, le alone rove (ek mnann, 1974, 1987; Teubner, 1975: 17% Unger 1976: 98s Rowers 1979:97; Lite Wel, 158 "Fora comparative hw study of evelution of method, ef. Fienesches, 1995; Kras swine, 1978 Sh. For the Prevek smation See Ewald nea: 124 Jurkiieation — Conceps, Aapecs, Limi, Solutions » eau ovematio leds wt. finalcontequence of juridfiation which has been noted with inerest and dager in secem years, Soci science thinking inthe wide seme ht been bnerved to ert mcestinginflcnce om the {oemation of legal concep and on praia decfon-making inthe courts This is expecially tre for aires nw", This apples ot only to academic discusion but sho deeply affects the deckin-inaking racer of the tegulatony agencies andthe cout, Legal argumentation i heal subiized iy tke langage of economics, whether the fae isthe major idelogkal ‘lesion ofthe faction of competion (protean of fecdom or economic tesla) (Reich, 1977: 29) Montel, 198344 3), the Base of wheter ata in canbe intrumenalie for eiflerem economic end, othe salon of technical problem relating "asa comperiin in §22 German Arian Stuie (Maus, 1875) and the defini of market power. Inded this oul scancly be nheris, for how cou avis erly demonstste that was secing the maienance or reoraton of competion over snd above the conerete caw a hand if degarded avaliable socal science ioiedge on the repultor contol of market? Testun sne hete copay. a Ge ry legal poll debates on corporate governance (Unternebmensereng) i thecantest of he age policaland economic consiuton(Worchafer fing) spl could note conducted withow the aid of socal stents Whether expe borrowing are made Irom organtation theory «with terns sich athe company a organization", wheter efficiency prognoses bre made digused a enwittiona law (Bair ea 1977: 123; Kable a, 1978" 145, 197), oF whether company fw, n apparently sis dogs Sle rethought in tem of baie conceps such “organizacon and Sfeoup” (Hume 1977: fh 4,7) — theres ofthe intertation erwecn cnganiation nd market, potics ad law, wil alvays be needed Inthe US the influence of soil scence thinking ener of economic analysis of inw, an hardly be overestimated (ce Burbaumn Uo, TRA, 1986 for traiqu) The everywhere extent opening of legal prace and Stine 1 ideas rom sconomice, sociology God. plical scence cannot simply be dismissed 352 panting fashion ofthe unely snes and seventies, OF course Yesterday cried thet, systm theory and law and soci” were the igh DF fashion, heres taay the trend is towards economic analysis of lm, “property rights” and “public choice""*. Of course these are fashions, but the “an example is provided by the dco beaneen Gowhol, 941: 246 aad shel 1981 390, a8 an example tic she see Maro nes MSU © forthe German denon, ae Rater, 1989, 1980" 206 Even the ers eae {ep bain themscves om este egl hearin for example, Wiedemann NOx 307 For the French dncoion, ste Fn, 196; forthe Amtrkan daca, see ss AUaimote cen ovugh sey de iokcor ey by Wal 193 Tisch aswel the aro ppronches of ial cence gal lyn Bah sia Tears, 1986,reasons for them lie deeper: the opening t0 the social sciences is closely connected with the phenomenon of jurdification itself. For rogalatory law regards itself as instrumental law, as 4 means of social guidance which as to $wing about certain social changes and therefore needs socal knowledge Inv the self-image of classical formal law, on the other hand, particular fects were not regarded as significant, Classical formal law saw itsell a6 having to provide only a formal framework within which social autonomy, could develop, and no partieula control effects were thereby intended. the tenacious sureval of formal law can be explained in particular by the fat that :tmakes itself independenc of particular effects on society and it has any aim call tis to bring about a state of universal Freedom. The crisis of femal law therefore be understood as a crisis of effect. In practice it has ed splendidly according to ts owe conception ofits Mlemity. [eis in terms ofthis internal model of formal lw that Windscheid’s confident dictum fof the “lawyer as such” who is "not concerned with ethieal, political or «economic considerations" (Windscheid, 1904 191) hecomes plausible — 4 View that today appears arrogant or unwordly tous, As Max Weber showed, it was only by indirect means, through politics, which developed welfare state conceptions in response to the pressure of social problems and class moves ments, thar formal law began to suffer from a ersis of identity. It was the contliceherween politieal demands For compensatian forthe resuls of industri. alization and the sttueures of classical formal law that triggered the evan of formal law, to which law has responded with mateiaization tendencies, In contrast, materialized law as an instrument of political guidance repacds tell as designed to produce social effects, If these effects are not achieved, this slreely affects its legitimacy. Accordingly material law is forced co enlist the aid of implementation analyses. Social sciences therefore become directly selevant in that analyses of effecs ean shed light on the effectiveness of law. ‘The extent of so-called sociologization of law cannot therefore be arbteaily ‘modified by lawyers according to intellecial fashion; on the contrary, tis ‘connected withthe wansformations of law inthe welare state self Atthis stage we may formulate a fre iterin finding juriifieation does not ‘merely mean proliferation of law i signifies a process in which the interven tionise social sate produces a new wpe of law, regulatory law. Only when hth elements — maverialization and the intention of the social state — ate taken together can we understand the precise mature of the comemporary phenomenon of juridilieation”. Regulatory law “coercively specifies conduct Wath some sligh differences, this concept of regulatory eoml of the scia sures atthe bans af ray of he contrat in these volumes. For example, Sie infra 119, 1214 puts greater emphasis onthe control o he ssil wate, whet ‘in the fonm of direct regulation ein othe legal forms, while Kubler, ine 2194 emphasis rather Uh aspece of mandatory law wi cee regulatory aces {o.my opion, only the combination of both elementscan make sumething ofthe di Feu problem of epuscory cont, ie if law i subjected tothe combine! require ments pla obeeuees and det sail regulon, Javaicaion — Concepts, Aspe, Lim, Soations » in order to achieve particular substantive ends” (Stewart, 1986). Regulatory lav, which i characterized by material rationality as opposed 1 formal raion ality, may be defined in terms of the following aspects. In is Fonction ie is eared the guidance requirements of the socal state, 0 its legitimation the Social results of its controlling and compensating regutations ate predomi fant. In its structure i tends to be patticularstic, purpose oriented and dependent on assistance From the social sciences. AS part of a greater historical process juridifiation canmot be reversed by political devsion, The ‘only approach worthy of sevious discussion is that which seeks to mitigate dystunesional problems resoltng from jusdiication 4 4.1 Reyulatey ema \Wharten are te dysfunctional problems resuhing fom jurdifaon? Wih such an sat foriaton ofthe question we il hve so toncenate on fens of prneile lands af suey where we enn escape owning Ee 'tood ot novmes Above, we have slfeady dacs imparane problems reouking from furieaon under eadngysech ss roferaon ofl Conflict expropion an depolceaon © te lax could Ye increased a Sill In conan so there pal aspects the problem, te fundamental testo’ th are here an igs th etary has ead moun the Tims of effcvenes? as jurieason today steady teach tacos Tn order to find our theoretical bearings, we will again draw on Max ‘Weber’ concepts of formal and mate toni of las, bas ine we Sil ccmin the rma cfeen ange, Weber (9786818) dese wo fonficing developmenal tendencies On the. one and he legal sytem inrease somal spvalsstonpotesgnalecion sn mere sem Manton on he other hand sexed to Inteating “mar” demands om cal aie he elven of ema de Hom theviewpojoc of stm teary thos oe efoxmlted ax conte beeen the soci! fmcton of law, namely to produce from conflicts social expects. ons in which then spcaves mote and mre an he egulaoy pom: ineaich the sete etre deans rom ian" “Fisindnc thatthe materlization af frmal aw shouldbe einerpeted asa proces in which two eonfcting ends re tented smutaneosy the one hand the *Tormalization” af law is intensified in the sense that lw thes of the fuera ifeenaion of stceny aid deve. fe {tomentose hich secclogis today elertoas automo eer " For the distinction between function and performance in haw, see Teubner, ross 2722 Canter ‘teu nce” "This concept cannot here he analysed in all its ramifications; 3 rough explanation wil ive to suffice. The offical definition ie An autopocee system ofthis hind inal ts eperations always refers to ef ap prodace sa skeen fr the elton eres men the Heo sutopoetie self-reference meas thats ais hated solely on ep norma Sisiy and that legal vality has definvely Tred sell Irom all exalepal sonnets mis moray scene — a5 well om ata terms of acura laws Law can therefore ony reproduce ill ita legally ‘Luhimann, 1985), . i On the other hand, “materilirton” of lw increases with, and is indeed eause by, the erase in formalization, The more the legal sytem specie in is fonction cof ereating expectations by confit regulon, the more develops and elines norms and procedstes which canbe ase for tire orien behavior entre Thit can ony be fovmalated nthe felowing para dca ers: ay by bing peste a antonomows ints metion eeiy = becomes increasingly depentet onthe demon for performance fom i aid rows, postive "highly formalized and profesionaized nw, when insrumemalized for purposes of polis! contol, exposed te specticd demand of polis on she on hand anda eld tea eo he This tension beween increasing sutonomy and inreasing iateependence exphins the neces andthe problem of modern jrtiication The proles lcs precisely in the “contraction” berwcen increasing autonomy and eal tanconsly increasing dependence. When certain sector of socey sh at economy, politics, Jaw, culture and seience became so autonomous that they sat ely program themselves, but exclasiel eat vo unselves they ae longer drety accessible o one another Wins oun power ee ple Produces binding decvons; law reproducrs is. nomatniy fy the decisional eyle and the economy in s0 to speak, shorcicuted inthe noney oe. Reciproal influences do, ofcourse eeur permanently bu hey donot operat seg sna spl cus scheme Fate dean stn izcely translated ino interna eects according to the stimulus tiponse scheme, They are filed according to specific selection ertera ne the respective syne srusutes and adapeed into the autonomous logic othe system: In srs of environmental influences on law thi mean hac even the stox powerful socal and polite! pressres ae onl peeved and proceed in he legal sjstem to the extent tht they apear onthe ianes "acon of legal reality consrvtons. Converse lea elations ae accepted by es "The terms sell reference/auopniss are used ip biology a well inthe soa ' order eo idemilya System which produces and reproduces the clenern with sds: Sener ata ta 8rd 19) or ana Eatin in the social scenes, ef He 19823, 942, lahgnann, 1986, Foe ae Rl syste, see Lehmann 1985, 1985; 47; Teubner 198, 1987 a Juriiiason — Concepts, Aspects, Limits, Soltis a ronmental systems only a5 external triggers for internal devclopments which Ire na longer conte by law ‘One therefore forced so abandon ies of effective ouside regulation, he sotion that law or politics could have a direst goal oriented controling invence on Sectors af society The elec of regulatory law mat he deserted in far more modest werms 2 the mere igering of el repulatory proce, the Shncion and let af han sey be peti Ber (5) p well saying thot legal relations donot change soil insti tal chey Only offer’ new halenge for their autpoiec asptation. Cyberaetcin te the term “black box deerbe this phenomenon (Glavile 197 33). External influence on areas of social fe post but — and this crucial — ‘only within the path and she Tints ofthe respective sef-reproduction These Sve described hy the regulatory elommas Every reulaory intervention which ce: beyond thee lines ctertrelecent o produ diiteraing fle 0 ite social en of Uk ov che dimegatng effect om reltoy la tel {Teubmer, 1985) The mater funher complicate by the pois ineumentalietion of tay the activist tt legal repulsion Involves not ony the legal sytem and tie respective socal aves of He bu invariably lo the policl sysen However, the legal sytem and the polical system in turn are autonomous felfefertnal social systems which cannox direct nflence each one an only recirocaly tigger self-regulating processes, Thi they can only do if they respect the limits of ther respective self-regulation. If we adopt his retspective and cegardjuidifiention proceses ag comple relations between Tice self-regulating soci systems, we Dein to grasp wy “regulatory fi tes" must infact fe the role rather than she exception and ssh 8 a0 merely problem of human inadeqeacy or socal power srutures but above one of inadequate seta coupling of politica law and tbe are of sexta tite? The unlikely event of «sucessful structural coupling of potiial decision making, legal novm-making and socal gdance ean only occur elevance thresholds are succesful. crossed and. ifthe respective. bmi of ilepodacion ae herd she stra coup ot hee then lw inevitably gate eaught up inthe regulatory wena mention above. We can now see more elealy tht this lemma of lw applies both so the regulated area of fen to polities For aw must frst passthrough 3 Completed sees of phases, beginning withthe hul-up of pois! power dnd the poiical guidance decision, moving om to legal norneaking and {pplication and finally tothe proces of socal mplemematon. Fis, the fhidance decision i clegalzed" in the poiical proces, ie, polis {Tanned int ne This is phase of uridifistion el problema or tmuston the one hand sty the relevance ereria of law but onthe ether © Op the dificalsconcept ofthe structrat coupling of autopuetie systems, see the Incroguction in Masurana, FH 201. See also Hef, 1982: 6