Substantive and Reflexive Elements in Modern Law

TLDR

The most comprehensive efforts to develop a new evolutionary approach to law are found in the work of Nonet and Selznick in the United States and Habermas and Luhmann in Germany, who differ in their accounts of the crisis of formal rationality of law. This paper attempts to resolve these differences by decomposing and restructuring diverse neo‑evolutionary models. Using a more comprehensive model of socio‑legal covariation, the author identifies an emerging kind of legal structure called reflexive law, characterized by a new kind of legal self‑restraint. Reflexive law limits itself to installing, correcting, and redefining democratic self‑regulatory mechanisms rather than taking over regulatory responsibility, and the author identifies emerging reflexive solutions in private law with implications for renewed sociological jurisprudence.

Abstract

The most comprehensive efforts to develop a new evolutionary approach to law are found in the work of Nonet and Selznick in the United States and Habermas and Luhmann in Germany. While these theorists are concerned with a common problem—the crisis of formal rationality of law—they differ drastically in their accounts of the problem and their vision of the future. This paper tries to resolve these differences by first decomposing and then restructuring the diverse neo-evolutionary models. Using a more comprehensive model of socio-legal covariation, the author identifies an emerging kind of legal structure which he calls “reflexive law.” Reflexive law is characterized by a new kind of legal self-restraint. Instead of taking over regulatory responsibility for the outcome of social processes, reflexive law restricts itself to the installation, correction, and redefinition of democratic self-regulatory mechanisms. The author identifies areas of private law in which reflexive solutions are arguably emerging, and he spells out the consequences which a concern for reflexivity has for a renewed sociological jurisprudence.