GOVERNANCE LEGALISM: HAYEK AND SABEL ON REASON AND RULES, ORGANIZATION AND LAW

The field of new governance has generated passionate debate about the potential effects of its efforts to democratize political decision-making through the bottom-up production of law. Some analysts suggest that new governance may reinforce neoliberal efforts to replace the state with market forms of regulation and control. But predictions about the effects of new governance's techniques-self-regulation, devolution of state power, subsidiarity, anti-adversarialism, and so on-are extraordinarily complex: agents can and do deploy all these means for multiple and shifting social ends. This Article therefore explores how two of the most innovative thinkers of new governance, on the one hand, and neoliberal governance, on the other, themselves understand key conceptual distinctions between their normative projects. Specifically, it traces the ways in which Charles Sabel and Friedrich Hayek hold disparate conceptions of three interrelated ideas: the individual's capacity for reason, the relation between small-scale organizations and the overall order of society, and the possibilities of making bottom-up rules of law. Building on these distinctions, the Article puts forth an account of new governance that diverges from most contemporary scholarship. Analysts widely distinguish new governance from liberal legalism for example, they describe new governance as a rejection of the kind of centralized legal regulation favored by liberal advocates of the New Deal state, and as an embrace of informal, flexible, lay, and even extralegal problem solving. This Article, however, explores new governance as an effort to bring formalizing and law-like procedures to bear on Hayekian models of flexible organization. It suggests that studying the discontinuities between new governance and neoliberalism and the continuities between new governance and liberal legalism may help clarify ongoing questions about new governance's view of law as a tool of distribution and social change.