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2010 Wis. L. Rev. 673 (2010)
Three Conceptions of Law: Towards a Jurisprudence of Democratic Experimentalism

handle is hein.journals/wlr2010 and id is 681 raw text is: THREE CONCEPTIONS OF LAW: TOWARDS A JURISPRUDENCE OF DEMOCRATIC EXPERIMENTALISM DR. MICHAEL WILKINSON* The Article takes as its starting point the recent transformation in our legal, political, and social relations that is suggested in the literature on new governance. It asks, what are the implications of this transformation for our conception of law and legality, and, specifically, what is the relationship between law and new governance? The existing responses to this question are presented as generally falling into two groups: those that argue that law is transformed in the move to new governance, and those that argue that there is an irredeemable conceptual and normative gap between law and new governance. At the back of each of these accounts of the relationship between law and new governance is a more fundamental conception of legality: in the former case, a functionalist, and in the latter case, a liberal-legalist conception of legality. Arguing that neither of these approaches is satisfactory, I propose a third account of the relationship between law and new governance, the contingency thesis, which is supported by a democratic conception of legality. Introduction ................................... .....673 I. What is New Governance? ......................676 II. The Transformation Thesis ........................680 III. A Functionalist Conception of Law ...................684 IV. Exploring the Gap Thesis ..........................691 V. A Liberal-Legalist Conception of Law... .............697 VI. Beyond Instrumentalism and Reification... ..............704 VII. The Contingency Thesis... ........................709 Concluding Comments: Towards a Democratic Conception of Law and New Governance? ...................... .......714 INTRODUCTION One of the most pervasive features of modem public law discourse, in national, supranational, and international contexts, is the turn from government to governance. This discourse rejects an image of law that is state-centered, unified, and hierarchical, underpinned by a the rule of law that protects individual rights, * Lecturer in Law, London School of Economics and Political Science. I would like to thank the participants and the organizers of the Transatlantic Conference on New Governance and the Transformation of Law at the University of Wisconsin Law School, where this Article was first presented. I would also like to thank Carol Harlow for comments on an earlier draft. Responsibility for any errors remains my own.

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