This Element looks first at the fundamental principle of modernity that is the functional differentiation of society, and the emergence of autonomous, positive law. The careful architecture of differentiation, balance, and mutual performance between the legal, political and economic systems is jeopardised with the hypertrophy of any one of the structurally coupled systems at the expense of the others. The pathologies are described in the second section of the Element. It explores how, under conditions of globalisation, market thinking came to hoist itself to the position of privileged site of societal rationality. In the third section we look at what sustains law's own 'reflexive intelligence' under conditions of globalisation, and whether we can still rely today on the constitutional achievement to guarantee law's autonomy, its democratic credentials and its ability to reproduce normative expectations today.
Author(s): Emilios Christodoulidis
Series: Elements in Philosophy of Law
Publisher: Cambridge University Press
Year: 2023
Language: English
City: Cambridge
Cover
Title page
Copyright page
The Differentiation and Autonomy of Law
Contents
1 The Differentiation of the Legal System
Functional Differentiation
The Positivisation of Law and the Function of the Constitution
The Role of Human Rights
Conclusion
2 Asymmetric Developments: The Spectre of De-differentiation
Juridification
Politicisation
Marketisation
Conclusion
3 The Autonomy of Law and the Challenge of Globalisation
Global Functional Differentiation
The Nature of the Challenge
The Problem of Fragmentation
The Problem of Inclusion
The Problem of Normativity
Tentative Solutions
Reflexion: Intra-Systemic ‘Solutions’
Performance: Inter-Systemic ‘Solutions’
4 Conclusion
References
