Document Type



Arizona State Law Journal




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 But this approach, though shared by a politically diverse range of scholars, is outdated and misconceives the problem.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 society. For it is in capitalism that both social marginality and the state's underlying impulse to control this phenomenon are based.


“First published by Arizona State Law Journal, Volume XXXVII, Issue III.”