International Investment Law As Formally Rational Law: A Weberian Analysis

Moshe Hirsch and Andrew Lang (eds) Research Handbook on The Sociology of International Law (Edward Elgar, Forthcoming)

22 Pages Posted: 20 Mar 2017 Last revised: 5 Apr 2017

See all articles by David Schneiderman

David Schneiderman

University of Toronto - Faculty of Law

Date Written: March 12, 2017

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. Modern disputes having to do with ‘equality before the law’ or ‘legal guarantees against arbitrariness’ demanded formal and objective decision-making, Weber maintained. Formally rational law also ensured that substantive elements exogenous to the legal system, those ‘directed against the dominance of a mere business morality,’ were kept at a safe distance. In this paper, I trace how the norm entrepreneurs promoting investment law’s disciplines conceive of this regime as exhibiting features of formally rational law. They also are resisting the substantively irrational – pejoratively labeled as ‘politics’ – from entering into investment law’s domains. I argue 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.

Keywords: sociology of law, investment law, weber, formal law

Suggested Citation

Schneiderman, David, International Investment Law As Formally Rational Law: A Weberian Analysis (March 12, 2017). Moshe Hirsch and Andrew Lang (eds) Research Handbook on The Sociology of International Law (Edward Elgar, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2931770

David Schneiderman (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-2677 (Phone)
416-978-7899 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
115
Abstract Views
578
rank
237,482
PlumX Metrics