Page 149 - Culture Society and Economy

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CULTURE, SOCIETY AND ECONOMY

economy. But it would be a grave mistake to imagine that the work
involved in price and economic regulation on even this community scale
would be a light one.
In addition, major political, legal, constitutional and practical problems
arise around implementing the notion of ‘subsidiarity’, as here under-
stood. One assumes that there will be some kind of separation of powers.
One assumes that there will be some kind of executive, although pompous
titles like ‘Prime Minister’ and ‘President’ may be deflated appropriately.
But the whole system of governance is unspecified even in outline.
Will there be an independent judiciary and what powers will it have
to review legislation, especially social and regulatory legislation? The
mind boggles at the number and range of disputes that would arise in
the course of this comprehensive regulatory regime. What about the
infamous problems of ‘telephone justice’ prevalent under state social-
ism? 25 How would legal determinacy and the rule of law survive the
plethora of special case interventions in economic and social life? 26
Clearly the solution to the problem of legal deformation proposed by
Maus with respect to German environmental law would face some
major obstacles in the event of ‘localization’. Maus has made the astute
observation that the problem of indeterminacy in welfare, environmen-
tal and anti-trust law (state intervention in the economy in general)
springs from concessions to the special interests of one privileged group
in the society or the other (usually transnational corporations). This
leads to numerous special exceptions in legislation (think of anti-trust
law) and therefore broad room for administrative discretion under
omnibus ‘in the public interest’ clauses. This is a major source of legal
deformation and the undermining of the rule of law by special interest
groups. 27
How will ideals of personal autonomy survive such a committee-rich
environment? What will prevent further legal deformation and the
inroads against ‘bourgeois right’ that they inevitably produce? Clearly,
with the proposed comprehensive intervention of the ‘community state’
in the ‘community economy’, localization would create formidable chal-
lenges to legal determinacy. Of course, one could take the position of
Unger and argue that legal determinacy is merely another bourgeois illu-
28
sion and one is well rid of it. But such a line is not open to those who
obviously base their claims on a liberal foundation. The way to resolve
these bourgeois departures from bourgeois law (driven by special inter-
ests, but would these vanish with localization?), and to re-assert a sub-
stantive rule of law, according to Maus, is first to abandon the blanket
clauses.

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