The Path not Taken: On Legal Change and its Context

Abstract

Legal change must be understood in relation to its context. But how? A reduction of law to its context, as approaches in political and legal realism tend to suggest, is unrealistic in its denial of law’s relative autonomy. The law offers reasons for its change that are no less real than those that emanate from context, be it political or otherwise. The present contribution builds on work that has studied law’s contingency—the possibility of alternative legal developments under unchanged contexts. What was the path not taken? This question pushes for law’s utter contextualization while keeping a critical distance. It does not stop asking why something happened until it is adequately explained, nor does it deny the alternative possibilities. The chapter first situates contingency in thinking about legal developments, drawing special emphasis to the travails of Third World Approaches to International Law (TWAIL). It then, second, expands on claims about law’s relative autonomy and, third, on claims about what would a difference also in the long run. What could possibly be path-breaking? The conclusions circle back to questions of what counts as context. Why politics?

Keywords: Legal History, Contingency, Realism, Idealism,Third World Approaches to International Law (TWAIL), Legal Autonomy, Contextualization

JEL Classification: K33