Weber famously described formally rational law as the highest form of modern law, where ‘definitely fixed legal concepts in the form of highly abstract rules are formulated and applied’. Formally rational law facilitated economic development by providing continuous, predictable, and efficient administration of justice. Formally rational law also ensured that substantive elements exogenous to the legal system, such as those advanced by certain class interests or ideological movements, were kept at a safe distance. This chapter traces how the norm entrepreneurs promoting investment law’s disciplines conceive of this regime as exhibiting features of formally rational law. They also resist the substantively irrational – pejoratively labelled ‘politics’ – from entering into investment law’s domains. The chapter argues that keeping substantive justice at bay is impossible, not only because of pressures that are at present being generated by states and citizens alike, but because the system itself is saturated with substance, in much the same way as was Weber’s higher form of law.
Nicolás M. Perrone and David Schneiderman
By purporting to depoliticize markets, international economic law complicates solutions to precarity and inequality within and between states and regions. Separating out markets from ordinary politics, the novel legal orders of trade and investment choose winners and losers, determining who will adapt to whom so as to render their policy goals most efficacious. In so doing, trade and investment law expresses preferences about how political and social life should be organized, rendering solutions to pressing social problems more difficult to address. This chapter interrogates these two legal regimes, arguing that they exhibit a similar tilt that favours global capital, precipitating similar legitimacy problems, and kindred responses that aim to manage the fallout. They reveal, in other words, startling comparable trajectories that rely on similar techniques to manage resistance. International economic law’s plan of action turns out to be unified: to deflect critique, disarm states and weaponize legal rules. We conclude that, so long as international economic law does not take precarity and inequality seriously, its trade and investment regimes will remain vulnerable to political blowback.