Chapter 3: The rule of law and the legalization of politics
If the category of law itself is taken for granted, there is little reason for engagement with underlying questions of what law is and how it may be distinctive from other forms of social normativity. (Brunnée and Toope 2013, p. 136) It would be nice if one could take the rule of law without the rule of lawyers. But this is not possible. To have one, you get the other. (Weiler 2000, p. 7) Although savvy policy professionals rarely present themselves as naive voices of neutral science, they think of themselves as participants in something altogether less parochial or ideological than 'politics'. (Kennedy 2001, p. 471) In this chapter I ask whether politics is becoming more patterned by legal considerations, in what is often termed the 'legalization' of (global) politics, before moving to develop an explicitly agent-centred account of this posited development. Having set out the rhetorical contours of the rule of law (both its incidence and its contested meaning), here I begin to look at the social processes and practices that are behind the increasingly common sense notion that the rule of law is the answer to most general political (and economic) issues. To suggest that there has been a legalization of global politics implies that we can measure this development in some way. Critical analyses of legalization (most obviously Mattei and Nader 2008) would suggest that what is evident is merely rule by law: the patina of law with none or little of its normative content.
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