The Differentiation and Autonomy of Law

This Element tracks the trajectory of the emergence of positive law and its decline under conditions of globalisation.

This Element describes the fundamental principle of modernity that is the functional differentiation of society, how, under conditions of globalisation, market thinking came to hoist itself to the position of privileged site of societal rationality, what sustains law's own 'reflexive intelligence' under conditions of globalization.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.