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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