2. The strategic position of law in society

Modern law in the Western sense emerged with the legally defined and maintained differentiation between religion and politics in the wake of the Investiture Conflict between Emperor and Pope from 1076 to 1122.Footnote ⁸ The dispute emerged due to the administrative law question concerning which of the two had the competence to appoint abbeys and bishops. However, more generally, it was about who was the sovereign, ie who stood above who. The emperor or the pope? The conflict ended with a compromise. The emperor was recognised as the sovereign of the worldly world and the pope as the sovereign of the spiritual world. The pope could thus appoint abbeys and bishops, but they had to swear allegiance to the emperor. The church thereby retained the monopoly on interpreting the religious text, but when the representatives of the church acted in worldly affairs in relation to everything from tax collection to military mobilisation, it was the emperor that came into play. The consequence was the creation of two different universes – the religious and the political – that were reproduced in parallel while being closely linked. Using legal instruments, the two universes were differentiated and interconnected at the same time. Tax revenues, blessings and other components of meaning could be transferred by legal means from one legally defined parallel universe to another.Footnote ⁹ The function of the law as differentiator and interconnector necessitated the development of a refined conceptual apparatus. Hence, it was hardly a coincidence that the Investiture Conflict coincided with the foundation of the first university in 1088 in Bologna. A university that had the reformulation of Roman and canon law as its primary focus point thereby initiating the creation of the modern legal profession.

From the 16^th century onwards, the logic behind the differentiation and interconnection of religion and politics through legal means was, in the European context, extrapolated to the relationship between economy and politics. Prior to the introduction of the distinction between the ‘economic’ and ‘political’ dimensions of society the institution of the household, from the manor to the court, was the central organising form of social processes providing an integrated institutional repository for the exercise of power and socio-economic reproduction.Footnote ¹⁰ The 16^th century emergence of the concept of ‘political economy’ however indicated the moment where economy and politics started to become differentiated. ‘Political economy’, in other words, only became a relevant concept in the moment a distinction could be observed between the political and the economic dimensions of society as this created a functional and normative need to problematise and to stabilise the relationship between these two dimensions of society.Footnote ¹¹ Also in this context, law was the central conceptual and practical framework. Especially the expansion of property rights, and with it the conceptual distinction between private and public, was the crucial institutional formation allowing for this development.Footnote ¹² The crux of the emergence of political economy was a dual and simultaneous move towards differentiation and reconnection as expressed in the intertwined nexus of property rights and taxation with both of them unfolding within a specific legal form. It is first with the separation of the economy from the political sphere through property rights that taxation, ie the transfer of resources from the economy to the political system became possible.Footnote ¹³ In the same manner as the conceptuality of modern statehood emerged out of Christian theological conceptuality,Footnote ¹⁴ the political economy problematique and the law of political economy was a secondary appearance of a logic that originally emerged in the nexus between religion and politics.Footnote ¹⁵

Since the legally instigated differentiation and interconnection of politics and religion and the subsequent differentiation of economy and politics, the function of law as simultaneous differentiator and interconnector has extrapolated multiple times. This can, for example, be observed in the striving towards the expulsion of religious doctrines from the classroom, ie the separation of religion and education and the manifold legal questions and conflicts emerging from this.Footnote ¹⁶ The formation of modern science as an activity ideally based on the search for truth free from economic, political and religious interference as for example expressed through legal codification in university constitutions is another classical example.Footnote ¹⁷ The conundrums of modern sports law faced with questions of structuring the interface between sports, on the one hand, and medicine (eg doping) and economic influence due to increased commercialisation, on the other hand, is yet another example.Footnote ¹⁸ In all these cases, and many more could be thought of, law is concerned with erecting boundaries between different dimensions of society while also allowing for interfaces within strict legal forms enabling transplantations of components of meaning, such as religious texts, science funding or pharmaceutical products, from one dimension to another in a legally distilled and controlled form.Footnote ¹⁹

The function of law as simultaneous differentiator and interconnector gives it a particular position in society. Not a position of outright supremacy but instead one as an infrastructural grid. Michael Mann conceived of state power as infrastructural power distinguishing it from despotic power.Footnote ²⁰ Despotic power Mann understands as actions undertaken by state elites ‘without routine, institutionalised negotiation with civil society groups’Footnote ²¹ and infrastructural power as ‘the capacity of the state to actually penetrate civil society, and to implement logistically political decisions throughout the realm’.Footnote ²² In a slightly different take he also describes infrastructural power as ‘the power of the state to penetrate and centrally co-ordinate the activities of civil society through its own infrastructure’.Footnote ²³ This perspective might be considered ‘methodological state-centric’, discarding non-state-centric forms of local and transnational power, – just as the, essentially Hegelian, distinction between state and civil society is rather simplistic and reductionist given the manifold differentiations between economy, education, politics, religion, science (and so forth) characterising modern society. More central to this article is however that, according to Mann, ‘there is virtually no technique [of infrastructural power] which belongs necessarily to the state, or conversely to civil society’.Footnote ²⁴ Hence, infrastructural power is societal power, with the concept of society denoting the category of all social communications and phenomena in world society.Footnote ²⁵ The concept of society thereby transcends established distinctions such as private/public, state/civil society and the tripartite local/national/transnational distinction. An adequate understanding of infrastructural power is therefore conditioned by a corresponding concept of society and indeed its conceptual incorporation and unfolding within the framework of a general theory of society.Footnote ²⁶ Even more central to this article, is, however, that Mann mixes up the categories of power and law. It is law and not power, understood as political power, which provides society with an institutional grid as also expressed in the law’s role as simultaneous differentiator and interconnector, as outlined above. While power is intrinsic to all social relations, political power is a specific kind of power distinguishable from personal power due to its abstractness and generalisability as derived from its legal form. In this specific sense, it is law that constitutes political power as a specific social phenomenon.Footnote ²⁷ As will become apparent below, form-giving and synchronisation, ie the harmonisation of time structures, are the central ways the simultaneous and dual differentiator and interconnector function manifests itself. A function which might be considered the second key function of law besides the upholding of normative expectations. A function which however have been unfolded and reflected upon differently at different times, as also expressed in the understanding of ‘law as purpose’; ‘law as a tool’; ‘law as an obstacle’ and ‘law as reflexivity-initiation’.Footnote ²⁸

3. Law as purpose

As is well known, a decisive transformation in the self-understanding of law was initiated in the German speaking part of the world in the first half of the 19^th century. Advanced by Friedrich Carl von Savigny and others within the German Historical School of Jurisprudence, this transformation of law became itself an object of study through Max Weber’s subsequent sociological reconstruction of it at the turn of the 19^th century.Footnote ²⁹ The historical school developed a notion of jurisprudence enabling an understanding of it as an objective science that observed law as a system that was coherent and rational. Based on a deductive method, a scientific universe could be created in which all legal norms fitted in and supported each other in a coherent manner. The law and its unfolding thus became an objective in itself in two different ways. Internally, the ideal was that the law should be positivist, ie build on the laws own basis and not on external moral, political, religious or other factors. The distinction between morality, acting as a meta-category, and law thereby became central for the constitution of the autonomy of law. The law was – by itself – given the right to have right without, in principle or conceptually, having to take external factors into account. The law thus became an end in itself. Externally, the law was conceived of as providing an optimal framework for the organisation of society, understood as an optimal degree of simultaneous differentiation and interconnection of different social processes. An understanding of law which was intimately linked to the concept of society to the extent that law was considered to emerge from ‘the people’ (das Volk), understood as an equivalent to ‘society’, rather than from the state. This was also reflected in the understanding of private law, especially contract law, as the central form of law. Consequently, a staunchly methodological individualist perspective was advanced emphasising a strict formalistic approach to the equality of legal subjects. The perfectly legally regulated society thus also became an objective in itself. An objective which Weber and others captured and linked to progressive liberal ideas of a democratic state and a neutral public bureaucracy.Footnote ³⁰

4. Law as a tool

After a long run that stretched back to the latter half of the 19^th century, the tremors of World War I allowed for the emergence of a new conception of law as a tool. The law was increasingly considered to be an instrument that could be used as a lever for ideological projects and for the realisation of political objectives within a corporatist framework. Common to otherwise very different ideological currents such as anarchism, fascism, communism, National Socialism and socialism, which to different degrees experienced their breakthroughs in the interwar period, was that they reinterpreted the status of law in society. Contrary to the idea of the law as a purpose, the new ideological currents regarded law as an obstacle for the fulfilment of political utopias. Alternatively, and less radically, they regarded law as a tool that could be used to realise political objectives without the law being considered as an end in itself or as having an independent influence on the development of society. Law in other words became increasingly conceived of as a tool for social engineering and the broader social sciences, such as economics, management studies and sociology became the core source of inspiration and the ideal model legal scholarship sought to replicate.Footnote ³¹ In practice, this meant an instrumentalisation and downgrading of the status of law, albeit with a very large degree of difference in the broad span from anarchism to socialism. To the extent rights were invoked they moreover tended to be collective rights. While the German Historical School of Jurisprudence had emphasised individual freedom, social justice and rights, for a particular group, ie a specific ‘class’, ‘ethnic group’, ‘profession’ or ‘race’ moreover became a common focus point for the otherwise very different ideological streams under the ‘law as a tool’ perspective. The form-giving function of law was in this context deployed and instrumentalised with the function of differentiating specific groups and augmenting the advantages of one group vis-à-vis other groups.Footnote ³²

The struggle between the understanding of law as an objective or the law as a tool unfolded over decades and continues in many ways today.Footnote ³³ In many western national contexts, a de facto compromise was however reached in the post-WWII neo-corporatist period with elements from both camps present in daily practice and the organisational setup of core institutions of political economy.Footnote ³⁴ From the outset, labour law was the core area of experimentation for law as a tool approaches.Footnote ³⁵ The development of the welfare state in the years before and after 1968 moreover implied strong tailwinds for the law as a tool approach, as other welfare-related policy areas such as education, social security and elderly care became increasingly central.

The way the ‘law as a tool’ approaches were deployed and the effects produced however underwent a drastic transformation after 1945. With central and eastern Europe under Soviet control post-1945, the Western European settings became central for the development of across-the-board universal legal frameworks – frameworks that were transnational in nature but were implemented in different national settings.Footnote ³⁶ This especially took the form of the nation-wide labour market and welfare regimes based on a principle of universal inclusion and characterised by extensive synchronisation of a manifold of social processes throughout national contexts within formalised legal regimes.Footnote ³⁷ Hence, while the ‘law as a tool’ approach remained dominant, in contrast to the interwar period, it was coupled with ideas of democratic universalism, formalisation of institutions and decision-making procedures, as well as societal-wide synchronisation.Footnote ³⁸

5. Law as an obstacle

Combined with exogenous factors such as the oil-price shock, the explosive growth of the (welfare) state led to a governing and financial crisis in the 1970s in many western settings. The state’s complexity in everything from budget size, number of employees and policy areas increased sharply throughout the western world, while the state’s overall legal framework, eg basic constitutional structure, in most cases remained a leftover from the 19^th century with evolutionary evolved labour and welfare regimes added ‘on top’. In this context, the law increasingly was perceived of as a straitjacket associated with an old-fashioned Obrigkeitsstaat, ie authoritarian state, and thereby as an obstacle to the realisation of the social objectives associated with the evolving welfare state,Footnote ³⁹ while from another perspective, it was seen as a danger to personal freedom and societal dynamism.Footnote ⁴⁰

One of the many consequences, in particular in the US-American setting, was the development of the law and economics episteme, ie the analysis of the law as it is and should be, in a positivist and normative sense, using microeconomic methods.Footnote ⁴¹ Law and economics was furthermore supplemented with a large number of non-legal management approaches up through the 1970s and 80s – approaches which subsequently were collected under the management episteme New Public Management (NPM) and later followed up by the New Public Governance (NPG) episteme.Footnote ⁴² The shared objective of these three epistemes was to increase dynamism and efficiency in the public sector and in private–public grey zones, ie the networks and partnerships surrounding the core of the public sector, through the introduction of competition, privatisation, outsourcing, financial incentives and removal of ‘red tape’. The ultimate societal unit which this type of law departed from was therefore ‘the market’ in the sense that, in principle, all social processes were conceived of in market terms, either operating as markets or legally and managerially constructed, in a manner aimed at allowing them to mimic market-based processes. Economic actors, modelled on the image of the individual, thus became central bearers of rights as for example expressed through EU internal market law and the four freedoms concerning free movement of goods, capital, services, and people.Footnote ⁴³ The legal ideal and core normative idea was thus one of law enabling as free and optimised economic social exchanges as possible with market exchanges understood as the ideal type of social exchange which other forms of social exchanges should aspire to mimic. The idea of governance enshrined in this episteme was, thus, one where public authorities mainly acted as facilitators of market optimisation. Contracts or public-sector pseudo-contracts thus became central legal instruments, just as the boundary between law and politics became the central ideological point of dispute.

From the perspective of the ‘law as an obstacle’ episteme, the law was again perceived of as blocking the release of adaptation and dynamism throughout society. At the same time, and quite paradoxically, functional equivalents to formal law were in strong demand. This was, for example, the case through the imitation of legal processes through performance management within organisations relying on ‘contracts’ without these being contracts in the narrow legal sense. These new forms of contract management were predominantly developed by economists and political scientists rather than lawyers, and have been used to supplant traditional, mainly administrative law, ways of organising public and private–public relations. This development has, in many settings, contributed to a strategic marginalisation of the law and the legal profession. In the traditional ‘law as a purpose’ setup the law was conceived of as an ex ante phenomenon. It was through law the world was defined and interpreted. In the ‘law as an obstacle’ episteme this is different. Administrative, managerial and political decisions are made and subsequently submitted to the legal unit of the organisation in question for verification of their legality. A picture which also has merged within contracting and contract theory and, thus, within private law. Traditionally, contracts were considered the central object of negotiations in business transactions. Today, contracting is mainly considered an ex post exercise conducted after agreement has been reached, merely formalising the details.Footnote ⁴⁴

The ‘law as an obstacle’ episteme, thus, had a lot in common with the interwar version of the ‘law as a tool’ approach, while the normative objective was different. In the construction of the welfare state, ‘law as a tool’ served the purpose of creating social and material rights, while in the ‘law as an obstacle’ episteme it became an instrument used to dismantle ‘publicness’ and its replacement with ‘privateness’ on the basis of an ideal of the market as the optimal form for the organisation of social exchanges. An objective which however rested on the paradox that the desired de-politicising exercise itself was a profoundly political project. De facto ‘law as an obstacle’ has often metamorphosed into an instrumentalisation of law, ie the use of legal instruments to safeguard particular and vested interests through investor protection, dismissal of broader societal objectives of competition law, collective bargaining rights and so forth.

6. Law as reflexivity-initiation

The thinking behind the non-legal approach to ‘law as an obstacle’ resulted in a number of contradictions and paradoxes. A crucial consequence of the NPM and NPG epistemes, for example, was that public institutions were often transformed into organisations with independent operational economic and strategic responsibility.Footnote ⁴⁵ Institutions have many – typically opposing – objectives and considerations that they need to balance. In most national settings, the postal service, for example, has traditionally been a business, an infrastructure and engaged in industrial and employment policy as well as regional and rural policy at the same time. However, from the narrow organisational perspective that came with NPM and especially the NPG paradigm, the postal service was in many settings increasingly reduced to its ‘operational task’ and ‘core business’. The same optimisation and efficiency approach is behind the many structural reforms from the 1990s onwards, such as municipal mergers, closure or merger of courts, police districts, primary schools, local hospitals and so on, which swept through many – particular north-western European – jurisdictions. The intended and unintended externalities that public institutions such as colleges, schools, hospitals and so on produce for society, including the local contexts in which they are – or were – located, were however poorly captured by the narrow approach to public management and organisation which the ‘law as an obstacle’ stood for. This again might be a central cause for the increase in the structural imbalance between cities and rural areas, centres of knowledge production and former industrial heartlands which dominates many contemporary settings in the western world.

In legal discourse, there has been a weighty response to the ‘law as an obstacle’ approach since the early 1980s. The most important contribution is the idea of ‘reflexive law’, ie an idea of law as a mechanism of reflection. Rather than singular and hierarchical governance, as contained in the idea of law as an objective, complex societies, according to the reflexive law approach, are forced to develop a more indirect approach to governance and judicial intervention. Instead of substantial governance, the law should limit itself to provide a framework for self-regulation within the private sector, but also in relation to areas such as the mass media, research, health, education and so on. In that sense, reflexive law can also be understood as the regulation of self-regulation.Footnote ⁴⁶ According to reflexive law, the various societal logics that drive these spheres should be allowed to unfold on their own terms, while the law installs procedures that will increase the reflexivity capacity and ultimately the adaptation capacity in relation to the externalities that different social activities produces.Footnote ⁴⁷ The examples of such initiatives are numerous and range from requirements for Environmental Impact Assessment (EIA) studies, requirements for ongoing (self-) evaluations of public organisations to frameworks for reflection on Corporate Social Responsibility. Reflexive law can thus be understood as a response to the lack of focus on the broader societal effects of social, including public activities, inherent to the law and economics, New Public Management and New Public Governance approaches.

Reflexive law is decisively societally oriented, in the sense that the unit of departure is society and not the state - a departure which however is not based on the classical state/society distinction. Rather the political system, ie the state, is considered one among many functionally delineated systems of society on par with the economic, educational, religious, scientific etc. systems. Law is, in this context, a functional system among others and the distinction law/environment, thereby, becomes the core boundary, with ‘environment’ denoting the other non-legal systems in society. The forms of rights referred to are thus ‘systemic rights’ in a twofold manner: First of all, human rights obligations are sought to be extended to all systemic structures, including economic actors such as multinational companies, and not just states,Footnote ⁴⁸ and, secondly, through the inclusion of ‘non-humans’ such as animals and electronic agents.Footnote ⁴⁹ The notion of equality built into reflexive law is, thus, one of ‘systemic equality’ with the epistemologies, rationalities and status of different systems and their designated agents considered equal. The legal, ie normative ideal, is thus one of law as the guarantor of functional differentiation through the simultaneous differentiation and interconnection of functional systems. In this context, the idea of governance advanced is one of systemic self-regulation on the basis of reflexive incorporation of the functional needs of other systems, just as the central legal instrument becomes one of reflexivity enhancement through proceduralisation, transparency and justification clauses.

7. The promise and potential of transformative law

One of the areas where self-regulation within a reflective framework went the furthest was the financial sector. In hindsight, this did not go so well when taking the 2007 financial crisis into account.Footnote ⁵⁰ The focus on inequality and geographical imbalances, currently dominating public discourse, moreover indicates that the mechanisms of reflexive law, ie the law’s ability to create a framework capable of taking account of the broader societal effects of both public and private activities, are insufficient or, at least, that the manifold expectations placed on the law are not met. The law – and society – thus faces a challenge. A return to a highly centralised Obrigkeitsstaat operating within a static legal framework is not practically possible in relation to many of society’s complex governance challenges and is probably also not considered normatively desirable.Footnote ⁵¹ The idea that ‘the state’ has or used to have the capability to exercise a comprehensive and substantial form of control in all areas of society is, moreover, historically questionable. In addition, the massive expansion of the public sector since the 1960s, which in most settings has continued ever since, including in the structural liberal era from the 1980s onwards, means that the ‘state’ today is an indefinable entity without an actual centre. By mobilising all its resources and using considerable sums of its economic, organisational and political capital, a government might be able to establish itself as a singular centre for a short time. This might be the case in times of war or when managing a pandemic. But this tends only to be possible in the face of a single problem constellation and only for a relatively short period of time, just as the long-term consequences tend to be financial overreach, ie indebtedness, and erosion of decisional capacity.Footnote ⁵² An epistemological focus on a single problem that also makes many other single problems disappear out of sight as long as it goes on. Despite the 19^th century ideal of the rational essentially Hegelian state, as expressed by the idea of law as an objective, the state has never possessed an ‘epistemological universal view’ that gave it the opportunity to observe and construct society as a whole in one particular moment.Footnote ⁵³ In other words, the state has never been able to capture, interpret and create society in a total sense on the basis of its own perspective. Instead, legally constructed infrastructural power remains non-substantive, providing a framing and moulding of social processes but without the capacity to engage in the micro-management of those processes. The state cannot interpret a religious script, decide on the truthfulness of a scientific argument, establish criteria for what counts as good art or asses the benefits of a specific business transaction.

With the impossibility of going back in time, one might instead seek to look ahead exploring the possibilities for a new approach potentially representing ‘a new “evolutionary” stage of law’.Footnote ⁵⁴ One possibility is what might be described as ‘transformative law’ understood both as a theoretical reflection and as a concrete practice and that both in empirical and normative terms.Footnote ⁵⁵ Hence, transformative law might in a first instance be approached as a sociological, ie factual, phenomenon through a sober assessment of the extent of its actual existence or its potential emergence. In a second instance, one might choose to add a normative dimension assessing its validity. Here, the ambition is more preliminary and less sweeping merely seeking to pinpoint basic touchstones of what transformative law might entail in terms of core conceptual characteristics without this necessarily implying a normative endorsement. As such, the following is an exercise meant to invigorate our institutional imagination.Footnote ⁵⁶ This is combined with an assessment of what potentially makes transformative law different from earlier types of law, especially the law as reflexivity-initiation episteme, which it builds upon and with which has certain overlaps, while also going beyond it in numerous ways.

Transformation is a compounded word. ‘Formation’ refers to a form and the ‘trans’ part to the act where the form goes beyond its existing form, ie transformation means to ‘change form’. The objective of transformative law is thus to change forms. Something has a form and the intention is it must have a different form. Here, three sub-elements can be differentiated in a substantial, social and temporal sense:

In a substantial sense, the focus on form means, firstly, an increased reflection on the law’s core task as a simultaneous differentiation and interconnection mechanism. In addition to maintaining norms over time, it is in the simultaneous differentiation and interconnection of different social processes that the social function of law can be found. From this perspective, it is thus central that legislative initiatives and other law generating insights systematically and strategically seek to incorporate this function in the way in which legal principles, norms and other legal instruments are constructed. Secondly, the focus on form implies that law has what might be called a ‘soft constituent effect’ vis-à-vis social processes, including processes with political economy relevance, as reflected in the forms of competition, contract, corporation and property among others.Footnote ⁵⁷ Mass media, health, science and economic activities are social processes in their own right that reproduce themselves on the basis of their own logics, but it is through concurrence with a legal form that they become institutionalised. Such institutionalisation can be understood as an ‘epistemological shaping effect’, in the sense that a social exchange of goods only becomes an economic transaction the moment it is categorised as a contract-based exchange, just as a posting on social media is first categorised as a mass media phenomenon within a legally defined understanding of what a mass media is. The law, in other words, categorises social phenomena and acts in that sense as constitutive by giving shape to social processes. Or, in other words: the law gives loosely coupled social elements a tighter form.Footnote ⁵⁸ However, this process goes both ways. The law is constantly forced to respond to changes in the substantial processes it is oriented towards, and typically lags behind in its shaping operations. This is the case, for example, when mass media legislation appears outdated in relation to the new reality created by the emergence and rapid evolution of social media, or when new forms of treatment make existing health guidelines outdated. The consequence is a constant ‘crisis of regulation’, since many of the ‘crises’, ‘problems’ and ‘lack of consensus’ that modern societies are characterised by can be attributed to such time gaps, where social processes have changed while the tighter form, which the law provides, has not followed along and, therefore, no longer captures these processes in full. A time gap which the shift from an ex ante to an ex post perspective on the legal systems position in society, as driven forward by the NPM and NPG epistemes, reinforces by consistently seeing the relevance of the law as a secondary post-rationalisation, rather than as the spearhead defining a given problem in the first place. However, a return to a purely ex ante approach to justice does not seem realistic and, therefore, opens up for the question of how a higher degree of societal stabilisation can then be achieved. A middle ground could be a ‘co-constitutive approach’ where the simultaneity between legal and non-judicial processes is strengthened, and the formative function of law becomes more dynamic. However, a complete overlap will not be achievable and will not be meaningful since the central task of law, in addition to the differentiation and reconnection function, is precisely to stabilise expectations over time through the maintenance of norms. A total overlap in time will therefore also mean a cessation of the distinction between the legal and the non-legal as they would become identical.Footnote ⁵⁹ The temporal friction is necessary to maintain the functional and normative integrity of the law and the challenge is, therefore, to make the temporal friction between the legal and the non-legal into a constructive and creative resource rather than a problem. So while society might ‘speed up’ due to increased accelerationFootnote ⁶⁰ and temporalisationFootnote ⁶¹ the law will also have to speed up, while never going as fast as the rest of society.Footnote ⁶² Hence the law is, for structural reasons, bound to become more ‘transformative’. It follows that the notion of law’s constitutive character for economy as presently advanced at Yale is both falling too short and going too far.Footnote ⁶³ Falling too short, because the form giving function of law is not particular to the economy but rather can be observed in relation to a far broader host of social processes, including, as previously highlighted, political processes. However, it is also going too far, because law only produces a ‘soft constituent effect’ for non-legal social processes. When a social exchange is given a contractual form, it allows for that particular social exchange to be denoted an economic exchange. In this sense, one might say law constitutes ‘the economic’ but only as a secondary co-constitutive exercise, as it might reinforce and condense but not create such exchanges.

The dual function as simultaneous differentiator and interconnector might be considered as based on connectivity norms. The concept of connectivity norms was originally developed in order to capture the role of law in the separation, transmission, and incorporation of components of meaning from one context to another in a globalised world, as for example undertaken through global value chains spanning several legally defined societal contexts and jurisdictions.Footnote ⁶⁴ However, in an additional variant connectivity norms might also be considered as instruments aimed at horizontal separation, transmission, and incorporation of components of meaning between systemically organised processes of, for example, an economic, political, religious or scientific nature. This is, for example, expressed in the extraction, transfer and incorporation of economic capital raised through tax law into the political system, or the extraction, transfer and incorporation of components of scientific knowledge into the economic system through their conversion into technologies with the help of patent law.

In the social sense, the law plays a crucial role in facilitating social exchanges, such as the purchases of goods and services, or conversely, preventing social exchanges such as the use of violence or the spread of defamatory statements on social media. The social dimension is also crucial for reflexive law’s attempt to increase the ability of social processes to include the societal effects of their activities in their organisational forms, decision-making processes and values. However, this perspective can be broadened through an understanding of law as ‘infrastructural law’, understood as the grid and the channels through which administrative, economic, mass media and other social processes are conducted, and that in two ways.

First, through a conceptual detachment of the concept of public law from the concept of the state. As already indicated, the ‘state’ or the ‘public sector’ is an indefinable quantity that has always been ‘fluid’ acting as one legal form provided to political power, among others. The ‘fluidity’ is, both historically and today, expressed in the active role private actors have played in the production of, for example, welfare services and the construction and operation of infrastructure.Footnote ⁶⁵ That is the case of private water supply and railways, outsourced elderly care, of private hospitals and Google’s search engine. In addition, there are more sources of public law than just state law. EU law, for example, produces legal norms of a public law nature with direct legal effect. State law and public law are therefore not identical as public law goes beyond formal state institutions. A concept of ‘legally constituted public power’ provides a broader, yet more targeted and precise approach, deployable in a wide range of local, national and transnational settings, as well as in relation to formally public and to formally private institutions. Hence, ‘legally constituted public power’ exists wherever power is abstracted, ie de-personalised, and generalised through legal means, making it distinct from atomistic and informal privatistic power.Footnote ⁶⁶ Privatistic power is, in this sense, the broader category, as such power is intrinsic to all social processes and exchanges, while legally constituted public power is a specific type of power that might or might not be unfolded in a given setting. In contrast to Hobbesian and Hegelian approaches, the epistemological point of departure is therefore not public power, described as state power by Hobbes and Hegel (as visible in their understanding of public power as a holistic frame encapsulating private power). Rather, privatistic power is manifest throughout society, with legally constituted public power appearing as islands in this ocean of private power. In stricter legal terms, public power might therefore be observed wherever the norms and standards of ‘public interest’, and the areas that fall under administrative law and related areas of law, are applied. For example, private providers of public services or privately owned ‘critical infrastructure’, regardless of whether public law originates from a national capital or from Brussels, Strasbourg or elsewhere, just as both public and private international organisations might be included. The easiest, and perhaps only way to define ‘the public’ in legal terms will, therefore, be that the public ‘is’ where administrative law and related legal fields apply. As expressed in the concepts of ‘global administrative law’Footnote ⁶⁷ and ‘private administrative law’Footnote ⁶⁸ such law is moreover present and observable in a multitude of settings throughout world society. The consequence of this optic is that Google Inc., for example, should not simply be observed as an organisation with a one-dimensional obligation to produce shareholder value. Rather Google – like the postal service in the old days – can be understood and regulated as a multi-faceted institution with a number of – potentially – conflicting societal obligations that can be identified and given form through regulation and which it will be Google’s task to balance on the basis of a concept of stakeholder value. The task of the law is, in other words, to transform Google from an organisation to an institution on the basis of an understanding of legally constituted public power as an infrastructure that spans the distinction between the private and the public.Footnote ⁶⁹

Second, through a spatial turn in law. The legal theoretical focus in the last four decades has, as expressed in reflexive law, been on the proceduralisation of the law, ie on the time dimension of law. Today, however, there is an increasing focus on ‘the cohesiveness of society’, as expressed in discourses on inequality and geographical imbalances. Social spaces, symbolically defined through geographical markers, thereby become a central dimension in the projection surface on which law has its cognitive focus. Nationwide coverage obligation for telecommunications and electricity providers are classic examples, but can, in principle, be unfolded in a manifold of cases. For example, in relation to welfare services as a legal obligation to ensure a maximum distance from residence to nearest hospital and general practitioner, and in relation to a maximum distance to nearest educational institution in order to achieve a transformation of spatial relations in rural areas. The spatial dimension might, therefore, also be considered as based on a concept of coherence norms, ie norms that, from a ‘traditional’ sociological perspective, tend to be seen as ‘instruments of collectivity’. Norms which are oriented towards the establishment of coherence within a group, for example a legally defined corpus of citizens, through the prescription of specific actions considered desirable for the members of the group, with the aim of transposing these the norms in question into the future.Footnote ⁷⁰

In a temporal sense, the intention of proceduralisation in reflexive law was a way to deal with increasing societal complexity by focusing on the development of procedures for decision-making processes without entering into the substance against which the decision-making processes were oriented. The law should thereby become more agile, adaptive and dynamic and better at responding to societal change. While the proceduralisation mindset has many advantages, there is a basis for expanding the temporal horizon through the development of a legal concept of sustainability, in both individualised and societal sense, that can serve as a unifying optic for a broad host of societal processes and problem constellations, such as environmental, social, health and economic issues. At the individual level, sustainability implies a focus on ‘the whole life’, ie on a person’s total life expectancy. Labour market affiliation and conditions will thus have to be seen in a perspective that implies maintaining a certain minimum standard of living for life, with the implications it has for pension schemes. Occupational, health-related illnesses, such as stress, will have to be considered on their long-term implications throughout life and the value of education will have to be assessed on the basis of the long-term effects, rather than on the immediate employment rate and income of recent graduates.

From a societal point of view, sustainability is closely linked to the generational perspective, the implications of current activities for future generations. The generational perspective is already central to both fiscal and environmental policy, where the long-term sustainability of contemporary dispositions has been a theme for a long time. The transformative potential of law in this context lies in its ability to provide a framework for contemporary action on the basis of a future perspective. Albeit not very successfully, that is for example the motivation behind the EU’s Stability and Growth Pact for fiscal policy.Footnote ⁷¹ The statutory phasing out of internal combustion engines in the EU by 2035 within climate law might also be considered as based on a notion of sustainability embedded in a transformative law approach.Footnote ⁷² The ongoing legislative process concerning a directive on due diligence might be understood in a similar way.Footnote ⁷³ The law can thus set goals for the future that serve as a guideline for present dispositions and thus initiate a transformative process. An objective function that the law is potentially better at fulfilling than the political system which works with a shorter time horizon governed by ‘cases’, opinion polls and the next election campaign, whereas the law can relate relatively indifferently to the short-term political and economic costs of long-term dispositions. Transformative law in this sense might provide principles of selection in the course of societal evolution. The tri-partite distinction between variation, selection and retention is at the core of evolutionary understandings of society. From moment to moment, a multitude of social processes unfold through selection of the next operation, ie one payment produces another payment and one administrative decision feeds into other administrative decisions, while societal complexity implies that there always is more than one option available. Not taking a decision is, for example, also a decision. Hence, the need for selection criteria for choosing between one or the other payment, or between this or that decision. The temporal perspective might be understood as based on a concept of possibility norms. Possibility norms introduce a distinction through a distance to the factually existing social reality as perceived in a given social context, by introducing a contra-factual perspective. As such, possibility norms are instruments through which possible alternatives to the given social reality are unfolded, thereby marking possible futures and accentuating the openness, rather than the reticence, of the future.Footnote ⁷⁴ The aspirational texts and statements based on an ever-expanding list of rights characterising many contemporary constitutions, as well as the formulation of the UN Sustainable Development Goals, are typical examples.

Going into more detail and distilling its content, ten core characteristics of transformative law and its partial overlap with previous types of law, especially reflexive law, can be highlighted as follows.

J. Legal agency

‘Law as purpose’ has the law professor as its proclaimed hero. The legal scholar engaging in the production of the grand civil codes of the 19^th century. ‘Law as a tool’ had the legal sociologist going back not only to Émile Durkheim and Max Weber but also to Rudolf von Jhering and Eugen Ehrlich, as their original heroes, followed up by a broad range of labour lawyers and other protagonists of social law actively engaged in labour union struggles. ‘Law as an obstacle’ had the judge and litigants at the centre. ‘Law as reflexivity-initiation’ tuned to extra-legal drivers, NGO’s and other social movements driving change through scandalisation and media attention. Transformative law adds to this the ‘expert’ as a central driver of legal change. The Intergovernmental Panel on Climate Change and pandemic experts are here a case in point. Hence, transformative law is ‘scientific law’ with a strong reliance on cognitive rather than normative processes of knowledge creation. This is also reflected in issues such as environmental, socio-economic and technology related issues, and the call for knowledge-based solutions. But even more so in the very idea of transformation, ie of change, as cognitive knowledge is knowledge which is systematically structured along the principles guiding scientific knowledge generation, meaning knowledge which is under current scrutiny and in constant flux with ‘old knowledge’ continuously replaced with ‘new knowledge’.Footnote ⁹³

Table 1.

The five types of law

8. Conclusion

Law has always been changing. Historically, law has been understood as an objective, as a tool, as an obstacle and as a mechanism of reflection. Especially after the NPM and NPG revolutions, the law has however been strategically marginalised through a dilution of its norm-setting function in society. The consequence is that fertile ground has emerged for a wide range of societal problems to keep growing, just as the ongoing de-centering of the western-centric world has created a new problem constellation in society and, thus, a demand for new types of norms in both a formal and substantial sense. It is on this backdrop that the possible development of a concept and praxis of transformative law, focused on law as a form-giving exercise, is emerging. A legal concept of transformative law that has both a substantial, a social and a time dimension, extending beyond the pure temporal focus which is the main element in reflective law.

Transformative law is however a potentiality rather than a reality.Footnote ⁹⁴ Structurally, its emergence is driven forward through increased acceleration and temporalisation of society. The current state is, however, one of a multitude of ongoing legal developments in scholarship, praxis and legislation providing fragments that might or might not amalgamate into a fundamental new episteme of transformative law. Were it to obtain dominance, it would potentially provide the foundation for a new époque of legal evolution, markedly different than the types of law dominant in previous époques. The chances of this happening are wide open and dependent on the combination of many factors of both a legal and extra-legal nature and is, as such, contingent. It can become the defining episteme of law for decades to come or just remain a short semantic blip that will have disappeared from the radar in a few years from now. The determining factors are likely to be the structural conditions of the 21^st century world society, as well as the dominating perception of pressing problems and the ensuing flux of problems, as issues currently thought to be high on the agenda for decades to come potentially will be seen in a different light down the road. The relative location and concentration of power, resources and knowledge will also be central. As pointed out by Duncan Kennedy, classical legal thought mainly had a German origin. ‘Law as a tool’ conceptions were heavily French inspired and ‘law as an obstacle’ had close links to the US context. But where will transformative law come from? In its self-description, it is likely to see itself as truly global with no enshrined bias vis-à-vis different cultures, languages or regions of the world. In praxis that is, however, likely to be different. EU law and the scholarship surrounding it is an obvious contender in the battle for occupying the driver’s seat but there will be other competing variants as well. No matter which variant obtains dominance, blind angles will be present.Footnote ⁹⁵

The normative desirability of transformative law is also open for contestation. This largely will depend on the actual form it will take in the concrete contextual settings where it might manifest itself. ‘Law as a tool’ was a cross-over movement which manifested itself in widely different ideological and institutional practises ranging from anarchist to extreme totalitarian over progressive socialist to social democratic appearances. In a similar way, transformative law might become a vehicle for both activist, communitarian, fundamentalist, pluralist, totalitarian and, through the attempts of re-engineering past developments, also novel forms of reactionary activity. In a similar vein, and just as ‘law as a tool’, its different strands might subscribe to democracy and democratic ideals or not, just as its degree of alignment with classical liberal rule of law ideals will be a central characteristic of its different strands. The concrete forms it might take is, moreover, likely to be decisive for its degree of sustainability. Albeit having ‘sustainability’ at its centre, transformative law might, at least in some of its versions and somewhat ironically, turn out to be unsustainable.