Research Handbook on the Sociology of International Law
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Research Handbook on the Sociology of International Law

Edited by Moshe Hirsch and Andrew Lang

Bringing together a highly diverse body of scholars, this comprehensive Research Handbook explores recent developments at the intersection of international law, sociology and social theory. It showcases a wide range of methodologies and approaches, including those inspired by traditional social thought as well as less familiar literature, including computational linguistics, performance theory and economic sociology. The Research Handbook highlights anew the potential contribution of sociological methods and theories to the study of international law, and illustrates their use in the examination of contemporary problems of practical interest to international lawyers.
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Chapter 11: International investment law as formally rational law: a Weberian analysis

David Schneiderman

Abstract

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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