Juridification of Social Spheres: A comparative analysis in the areas of labor, corporate, antitrust and social welfare law

Abstract

The juridification of social spheres appears as a disquieting modern trend in several different national cultures. Although the large variety of national experiences with juridification cannot be summarized in a unifying formula, it is important to note that juridification is not to be understood primarily as a quantitative phenomenon of the growth of law and regulation. Rather, it has to be seen in its qualitative dimensions, that is, as the emergence of new structures of law to keep pace with the growth of the welfare state. To the degree that the law is used for the regulatory and compensatory purposes of the welfare state, extensive changes in the structure and function of law are involved. In addition, recent trends of crisis in regulatory law seem to be closely connected to the more general crisis of the welfare state. One fascinating aspect of the debate on the crisis of the welfare state and the law is the emergence not only of the concepts of delegalization and deregulation but also of alternatives to delegalization, that is, of forms of legal discourse which avoid certain fallacies of regulatory law without abandoning the idea of an active role of law in shaping social institutions. The modern phenomenon of juridification was the central theme of a larger research project which Terence Daintith and I conducted at the European University Institute in Florence. The results of this project were presented in March 1985 at a conference on "Law and Economic Policy: Alternatives to De-Legalization". The contributions with an economic policy orientation are to be published separately in a volume on "Law as an Instrument of Economic Policy" edited by Terence Daintith; this volume instead concentrates on juridification in the fields of labor, industrial organization, antitrust and social security.