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This cements the asymmetry that already exists between private actors on the one side and the public authorities on the other. These lawyers describe their clients as being in a situation of double powerlessness , which arises from their lack of competence and economic opportunities Papendorf , p. This claim will be discussed below in the context of the more general judicial development represented by the extensive juridification of society.

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The most recent such research effort in Norway—carried out by the Research Group on Power and Democracy 1 — —has indeed renewed this debate on juridification. The work of the research group and its final report in particular, has undoubtedly led to a new consideration of juridification, its underlying notions and consequences for the rule of law—and more concrete questions concerning access to the law. One may ask whether access to the law for particularly law-dissociated members of society has deteriorated or improved as juridification takes place. This makes an interesting starting point for a more thorough examination of the views of the research group on juridification and its consequences for access to the law for law-dissociated groups in society.

Juridification must itself be seen in a wider context, namely the debate on the limitations of modern law from an administrative perspective which, again, has consequences for the capacity to mobilise the law. The main theme is principles of the Norwegian democracy and changes in these … The starting point is the Norwegian social model built on representative democracy … Important conditions for representative democracy include that the individual having a voice, and there being local and central government bodies which are representative and have legitimacy and authority.

What was previously decided by, among other things, municipal political debate is now determined by interpreting rights legislation. They argue that the power of jurists, particularly that of lawyers and the courts, has increased NOU , p. The power of interpretation and balancing of contradictory rights is transferred to the judicial system and courts.

In what follows, I will primarily concentrate on the first—national—perspective, examining the different forms of juridification as regards three social actors: the legislator, administration, and judiciary. As a first step, I will clarify the concept of juridification.


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The first is the legislator, who contributes to juridification by an increased production of laws. This form of juridification is called legislative growth , which can be seen not only in the actual growth of the scope of legislation quantitative juridification , but also in its increased detail and specialisation, which includes the outsourcing of some areas of legal regulation the qualitative aspects of juridification.

Power thus lies with the legislator, who is able to take decisions regarding political goal setting. The second form of juridification is administrative, with the production of sub-legal law decrees, circulars, resolutions, etc. Formal legal rationality is marked by precisely formulated conditions and legal rules applied according to clearly defined principles, and predictable decisions are expected.

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The reality of administrative action has, over time, departed to a significant degree from this ideal: today it is primarily characterised by the enforcement of rules by non-jurists or non-judicial rule-appliers. This produces different, often incompatible, legal cultures as regards the application of the law Mathiesen , p. Moreover, modern interventionist law often features open means-end programmes often general clauses rather than precisely programmed conditional programmes.

4. By way of concluding

These give wide scope to the administration. The third form of juridification takes place through judicialisation , which describes the production by the judiciary, via its legal practices, of norms with governing potential. In legal discussion of the concept of juridification, as I have already indicated, growth is the phenomenon most often identified.

Flexibilisation is considered as a strategy to deal with supposed over-managing. Thus there are discussions about decentralising management tasks, switching from detailed rules to framework regulations, as well as using general clauses and indeterminate legal concepts flexibilisation in a narrower sense.

But, what qualitative changes in the legal structure has this juridification entailed? Gunther Teubner suggests problematising the processes of juridification in terms of the particular conditions of the interventionist state. He investigates how these processes correspond to social areas with different political and social structures Teubner , p. Nils Christie can be mentioned as a proponent of such thinking.

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In his trailblazing article written in Konflikt som eiendom [Conflict as property] he traces how juridification can be seen as a process whereby human conflicts are torn from their living context through formalisation; conflict is denatured through its legal treatment. His conclusion is that the conflict should be given back to the actual parties involved in it. Social and cultural problems are increasingly formulated as legal claims. Ever more areas of social life have become subject to legal regulation, and the regulations are in many areas more detailed … Juridification is expressed at different levels, nationally and internationally.

Since the s a number of laws has been passed in Norway establishing rights to health services, welfare and education; equality rights and the rights of cultural minorities have been expanded … Juridification means that more areas and more details of social life are regulated by laws and directives, that the power of courts and other legal institutions to make decisions increases at the expense of political and administrative bodies, and that interests are increasingly formulated as legal claims.

In other words, the research group identifies both quantitative and qualitative growth in juridification through the establishment of rights in various areas of welfare.

Ch. 12--Jurgen Habermas and Discourse Ethics

This happens nationally and internationally. According to the analysis of the research group, what is positive in this development, namely the fact that citizens have been granted rights and services, comes at a heavy cost to the democratic system. Many of the general welfare rights are to be implemented at the municipal level. Even though many of the laws are imprecise in their allocation of rights, they limit the scope for local autonomy.

Juridification creates a growth in the market for legal services, while the welfare and care professions are squeezed between growing demand and insufficient budgets. This implies that the courts or court-like bodies are increasingly influential at the expense of the legislative branch, and that the separation between legislation and the interpretation of the law is being blurred … In the case of conflict, the regulations have to be interpreted, and different rules are weighed against each other.

In this way too courts and other parts of the legal system increase their power and authority. Does juridification always mean a curtailment of liberty for the individual, or is it possible in at least certain policy areas to say that we are dealing rather with a tendency to ensure individual liberty for instance, by ensuring social rights?

And is the curtailment of political scope for action for instance, through depoliticisation necessarily a consequence of juridification, or in certain circumstances can it contribute to expanding the scope for reform politics? Voigt , p. He calls this positive, or partly emancipatory, form of juridification performative juridification, as opposed to its restricting deformative twin. For reasons of space, this critique cannot be fully explored here, but some of the points of contention will now be briefly mentioned.

Moreover, the great increase in the number of jurists in Norway ; ; 14, does not demonstrate a transfer of power from politicians to others, but is rather a sign of a more complex and confused legal situation resulting from globalisation. Blicher and Molander , p. Rights will only be able to limit political freedom of action if they are strong, and also provide strong rights protection Feiring , p. As has been mentioned, this is linked to the negative conceptual connotations of their view of juridification.

Their analysis is in line with the dominant message of the critical debates on juridification in Germany in the s, which can be understood as a reaction to the disappointing results of the eagerness for social-democratic reform in the s. Besides quantitative and qualitative claims regarding the growth in legislation, claims were also made in these debates that it was bringing about large-scale regulation of the last remaining autonomous areas of human action, along with judicialisation and a de-democratisation of politics through the continual increase in the use of the courts.

He argues this results from an eagerness for legal regulation, which also gets directed at remaining non-regulated and intimate areas. Here, too, juridification takes on deeply negative connotations. Kirchheimer had, as we have seen, narrowed the juridification concept to apply to the phenomenon of the Weimar Republic and, thematically, to labour law and politics. Further, developing this thematic concept, Habermas generalises the notion of juridification in two ways.

First of all, he disengages the concept from the historical association with the Weimar Republic. He then uses it in an expanded perspective to analyse the relation of law to politics, and to identify legal expansion processes in a number of partial social systems, such as economic and education systems.

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Habermas identifies four phases of juridification: the first determines the shape of the bourgeois state in the era of absolutism in Western Europe. The second leads to constitutional government such as the monarchy in Germany in the s. The third produces the democratic constitutional government seen in Europe and North America after the French Revolution.

The last phase shapes the social and democratic constitutional government that arose from the struggle of the European labour movement during the s. This last phase has a liberty-granting character, from the perspective of both citizen and the democratic legislator. Habermas does not, however, consider this to apply to all social governmental regulations.

Governmental welfare policy is marked by ambivalence between guaranteeing and denying liberty ibid. In the case of legal rights to sickness or old age benefits, these represent progress compared with poor relief, but on the other hand those entitled to social security pay a high price in terms of the encroachment on their lifeworlds.

This is linked with the legal necessity to lay down rights for individual claims under carefully specified general conditions. The individualised regulation of old age pensions can have negative consequences for holders of the rights and their relation to their own local communities; for instance, it may affect the willingness of the surroundings to give additional assistance.

The specification of legal conditions is once again associated with a significant compulsion to redefine everyday situations.

Finally the problem-solving of the administration is peculiar in the sense that it abstracts human beings from the situation, to subsume them under the rule and treat them administratively. In other words, the administration must be selective. As a public body the service must at the same time function according to the principles of justice and the rule of law … But it is problematic if juridical language becomes norm-creating for the way child welfare problems should be handled and understood. The fundamental basis of the juridification debates, in relation to the limits of governmental steering policy and the function of the law, has, in recent years, become less dominant in the German debate.

This is particularly true for Habermas, who has clearly changed his opinion. This thesis is one no longer espoused by Habermas. But the access barriers are even higher for utilizing materialized law, which requires laypersons to dissect their everyday problems regarding work, leisure and consumption, housing, illness, etc. If the above proposals are not to further exacerbate the loss of voice in the welfare state, then affected citizens must experience the organization of legal protection as a political process, and they themselves must be able to take part in the construction of countervailing power and the articulation of social interests.


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Legal aid is thus politicised, and attributed with the potential to be a countervailing power, if the actual aid recipient is involved in the process of formulating policy.