Postmodernization and the Crisis of Law: Legal System and Rule of Law in „Brave New World“

Postmodernization and the Crisis of Law: Legal System and Rule of Law in „Brave New World“

Flander, Benjamin

Abstract: In the past few decades, due to far-reaching social changes caused by globalization and postmodernization, modern law and legal systems have changed significantly. Generally speaking, law has become less general, systematic, and hierarchical since the basic structural features of modern law changed. New principles of the functioning of the legal system have taken advantage over the previous ones, i.e., instead of a public law model, a private law contracting model has established itself as the dominant way of regulating social relations. Moreover, the boundary between public and private law has become less clear, and new legal concepts, institutes, and disciplines have occurred while those which prevailed throughout the modern legal tradition have changed significantly. Postmodernization of law, among other things, brings a lot of negative “crisis” transformation, among which those worth mentioning are the spread of the neo-liberal law-and-order legal ideology and politics, the degradation of fundamental principles of the rule of law, changes in substantive and procedural criminal law for the sake of fast, efficient, and economic prosecution of criminal suspects, the breakdown of the (law of) welfare state (the latter being transformed into penal state), privatization of justice (e.g. judicial services), excessive juridization of social relations, and the transformation of legal subjectivity. In many important aspects, the postmodern transformations have taken contemporary law and legal systems back to the times of the early classical liberal legal system of the 18th and early 19th centuries. The author argues that, in the process of their integration to European Union and the legal reform according to the European standards, the states should take into account the broader historical context of this process: the social and legal postmodernization which gave the law and legal system a new postmodern identity, on one hand, and the crisis of the concept of the rule of law, on the other.

Article
PeerReviewed

International Burch University

2015

2855