Capitalism, Social Marginality, and the Rule of Law's Uncertain Fate in Modern Society 37 Arizona State Law Journal 2005

37 Ariz. St. L.J. 759 (2005)
Capitalism, Social Marginality, and the Rule of Law's Uncertain Fate in Modern Society

handle is hein.journals/arzjl37 and id is 769 raw text is: CAPITALISM, SOCIAL MARGINALITY, AND THE
RULE OF LAW'S UNCERTAIN FATE IN MODERN
SOCIETY
Ahmed A. Whitet
ABSTRACT: The rule of law is liberalism's key juridical aspiration. Yet its
norms, centered on the principles of legality and legal generality, are being
compromised all over the political and legal landscape. For decades, the
dominant explanation of this worrying condition has focused mainly on the
rise of the welfare state and its apparent incompatibility with the rule of
law. But this approach, though shared by a politically diverse range of
scholars, is outdated and misconceives the problem. A central function of
the modem state has always been to prevent capitalism's inherent
tendencies toward social marginalization from devolving into general
social crisis. This involves prosecuting an agenda of social control aimed at
the socially marginalized. For much of the twentieth century, the welfare
state represented the dominant means by which the American state
advanced this agenda. While not unproblematic, the welfare state's reign in
this regard proved at least relatively compatible with the rule of law. Over
the last three decades, though, the state's primary means of responding to
the problem of marginality has shifted substantially, away from the welfare
state toward a reliance on the criminal justice system and its institutions to
advance this agenda. This shift in the dynamics of social control,
originating in both ideology and political economy, is evident in the
retrenchment of the welfare state and in concurrent changes in the nature of
criminal justice that reflect its growing concern with regulating social
marginality. This process is central to understanding the rule of law's fate
in modem society, as it has accorded to the criminal justice system
functions that render adherence to rule of law norms increasingly untenable
in this most important of contexts. This argument not only refocuses the
debate about the rule of law's fate; it also challenges the entrenched view of
the relationship between the rule of law and the welfare state and,
ironically, given the rule of law's origins in capitalism, it recasts capitalism
itself as the more fundamental problem for the rule of law in modem
t Associate Professor of Law, University of Colorado-Boulder School of Law; J.D.,
Yale Law School, 1994. This Article benefited from very helpful comments from Teresa Bruce,
Kevin Reitz, and John White, as well as excellent research assistance from David Lipka and
Stephanie Zehren-Thomas.

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