Edited by Moshe Hirsch and Andrew Lang
Chapter 11: International investment law as formally rational law: a Weberian analysis
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.
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