Book Review: Amanda Perry-Kessaris (ed.), Socio-Legal Approaches to International Economic Law

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published in the Journal of World Investment and Trade: http://booksandjournals.brillonline.com/content/journals/10.1163/22119000-01506018
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  󰁴󰁨󰁥 󰁪󰁯󰁵󰁲󰁮󰁡󰁬 󰁯󰁦 󰁷󰁯󰁲󰁬󰁤 󰁩󰁮󰁶󰁥󰁳󰁴󰁭󰁥󰁮󰁴 󰀦 󰁴󰁲󰁡󰁤󰁥 󰀱󰀵 (󰀲󰀰󰀱󰀴) 󰀱󰀱󰀰󰀹-󰀱󰀱󰀲󰀶 © 󰁫󰁯󰁮󰁩󰁮󰁫󰁬󰁩󰁪󰁫󰁥 󰁢󰁲󰁩󰁬󰁬 󰁮󰁶, 󰁬󰁥󰁩󰁤󰁥󰁮, 󰀲󰀰󰀱󰀴 | 󰁤󰁯󰁩 󰀱󰀰.󰀱󰀱󰀶󰀳/󰀲󰀲󰀱󰀱󰀹󰀰󰀰󰀰-󰀰󰀱󰀵󰀰󰀶󰀰󰀱󰀸 brill.com/jwit The Journal of World Investment & Trade LawEconomicsPolitics Book Reviews  Amanda Perry-Kessaris (ed.) Socio-Legal Approaches to International Economic Law: Text, Context, Subtext  . Routledge, 2012. Pp. 328. £75. ISBN: 978-0-415-51016-5. The book under review is a diverse collection of papers that either purport to take a socio-economic approach to international economic law, or attempt to clarify what it means to take such an approach. The aim of the collection, according to the introductory chapter, is “to highlight some distinctive virtues and vices” of socio-legal approaches (p. 4), and to clarify “how a ‘socio-legal’ approach distinguishes itself among other interdisciplinary approaches to international economic law” (p. 6). Essentially, then, the book pursues two projects: one is of conceptual clari􀁦󰁩cation and one is of normative evaluation. The former project explores what socio-legal research is, while the latter inter-rogates the value of socio-legal research.The editor’s introductory chapter takes on these projects with two vocabu-laries. The 􀁦󰁩rst is derived from the idea that one can ‘approach’ law in di󰁦ferent  ways; socio-legal approaches, Perry-Kessaris suggests, are distinctive in  what   they approach, how  they approach it, and  why  they approach it. Her answer to the question of  what   is approached employs a second vocabulary: that of ‘text’, ‘context’, and ‘subtext’. Socio-legal approaches are distinctive, on her reading, in that they are interested not only in the ‘text’ of law, but also in its ‘context’ and ‘subtext’. In this respect, she argues, socio-legal approaches di󰁦fer from both ‘legal’ and law-and-economics approaches: the former are only concerned  with ‘law’ (“[L]aw comes 􀁦󰁩rst and is the substantive focus. There is no need to look any further” ([p. 4]), while the latter are preoccupied with their own ‘texts’ (in the form of theoretical models), and are at the same time “deeply norma-tive”, unable to “eschew … the stickiness of moral subtext” (p. 15).Given the central role of the text-context-subtext “ri󰁦f” (p. 6) in the book – it provides both the subtitle and the structure of the book, and is taken up by many of the contributors – it is surprising how casually the editor appropriates this distinction from one of the contributors, Sabine Frerichs (Perry-Kessaris herself describes her use of Frerichs’s distinction as a “cannibalis[ation]” (p. 6)). For Frerichs uses the text-context-subtext spectrum not as a description of the subject matter of socio-legal work, but instead as a way to distinguish  1110 󰁂󰁯󰁯󰁫 󰁒󰁥󰁶􀁩󰁥󰁷󰁳 󰁴󰁨󰁥 󰁪󰁯󰁵󰁲󰁮󰁡󰁬 󰁯󰁦 󰁷󰁯󰁲󰁬󰁤 󰁩󰁮󰁶󰁥󰁳󰁴󰁭󰁥󰁮󰁴 󰀦 󰁴󰁲󰁡󰁤󰁥 󰀱󰀵 (󰀲󰀰󰀱󰀴) 󰀱󰀱󰀰󰀹-󰀱󰀱󰀲󰀶 socio-legal work, which for her is concerned primarily with the context   of law, from positivism, which is primarily concerned with the text  , and natural law,  which is primarily concerned with the moral subtext   of law (pp. 39–40). The editor’s repurposing of Frerichs’s taxonomy creates a number of problems. First, describing the subject matter of socio-legal approaches as the ‘text’, ‘con-text’, and ‘subtext’ of law sets the bar for what quali􀁦󰁩es as ‘socio-legal’ work extremely low. It is indeed hard to think of examples of legal writing that do not in some way touch on the text, context, and subtext of law. It is unsurpris-ing, then, that the editor makes no serious attempt to follow up on her ambi-tion to clarify “how a ‘socio-legal’ approach distinguishes itself among other interdisciplinary approaches to international economic law” (p. 6), such as “legal realism, the law and society movement, critical legal studies, feminist  jurisprudence and critical race theory” (p. 5).Perry-Kessaris’s extremely broad de􀁦󰁩nition of what counts as socio-legal  work not only leaves it unclear what is distinctive about socio-legal research as compared to other interdisciplinary approaches to the study of law. It also risks caricaturing what Perry-Kessaris portrays as the Other of socio-legal research: the “black letter, positivist, strictly ‘legal’ approach” (p. 4), on the one hand, and the “modern mainstream ‘law and economics’” approach (p. 14), on the other.  What could be more “doctrinal” (p. 3) than the perspective adopted by an adju-dicator or a judge? And yet any adjudicator that did not consider the context and subtext of the text that she is applying would be a bad adjudicator indeed. The editor’s attempt, in turn, to classify law and economics as not “socio-legal” on the basis that “[e]conomics thinks it is concerned with context, when in fact it is mostly concerned with text, in the form of theoretical modelling” (p. 15), appears rather tortured. It is hard to avoid the impression that describ-ing the subject matter of “socio-legal” approaches as encompassing the text, context, and subtext of law, does little to illuminate such approaches.Nor does the introductory chapter’s discussion of ‘how’ socio-legal studies approach their subject matter add much clarity. While the chapter mentions the role of the social sciences for socio-legal work (p. 10), there is little discus-sion of what this role entails in practice. Instead, the editor observes an increas-ing overlap between disciplines generally, and cautions that, in light of all this “borrowing and lending of approaches across boundaries,” it becomes “harder – less meaningful or rewarding” to “stake out distinctly ‘socio-legal’ territory” (p. 11). The chapter nonetheless proceeds to identify two criteria as “crucial to the ‘how’ of socio-legal approaches,” namely, that socio-legal work be “about the world, which means it should attend to the world,” and that it “should be about something other than miscellaneous facts” (p. 12). These criteria are too broad to serve as meaningful methodological or theoretical standards for what   1111 󰁂󰁯󰁯󰁫 󰁒󰁥󰁶􀁩󰁥󰁷󰁳 󰁴󰁨󰁥 󰁪󰁯󰁵󰁲󰁮󰁡󰁬 󰁯󰁦 󰁷󰁯󰁲󰁬󰁤 󰁩󰁮󰁶󰁥󰁳󰁴󰁭󰁥󰁮󰁴 󰀦 󰁴󰁲󰁡󰁤󰁥 󰀱󰀵 (󰀲󰀰󰀱󰀴) 󰀱󰀱󰀰󰀹-󰀱󰀱󰀲󰀶 can qualify as “socio-legal” writing. Nor does the discussion of the ‘why’ of socio-economic approaches add any contours to the picture, as it boils down to the observation that socio-economic approaches can pursue both descrip-tive (“achieving clarity”) and normative aims (p. 15).Fortunately for the reader, chapter 3 by Sabine Frerichs picks up some of the conceptual questions left unresolved by the introductory chapter. For Frerichs, “socio-legal studies” are “part of the movement that opens law to the social sci-ences in order to better understand its context” (p. 40). On her account, both socio-legal studies and law-and-economics have their roots in twentieth cen-tury legal realism, which “further[ed] the encounter between law and (other) social sciences” (p. 40). Frerichs provides a nuanced discussion of the relation-ship between these two “movements,” and makes a persuasive case that socio-legal scholars should not delegate economic questions to law-and-economics, but rather “address them in their own terminology and theoretical frame- works” (p. 41). Frerichs shows, for example, how socio-legal scholars have sought to destabilise the concept of economic rationality, which is taken for granted in much of law-and-economics scholarship, but appears “as a highly contingent social phenomenon” in socio-legal scholarship (p. 41). While Frerichs ends with a critical remark about what she sees as the increasing dog-matism of mainstream law-and-economics scholarship (p. 49), the picture that emerges from her chapter is essentially one of two movements with common roots that derive their methodology and theoretical orientation from di󰁦ferent disciplines, namely, sociology and economics. Another contribution of Frerichs’s chapter is that it implicitly provides a  yardstick for the assessment of socio-legal scholarship. For Frerichs, exemplary socio-legal scholarship is work that “go[es] deep into the material – which analyse[s] data and discourses, policies and practices – and, in doing so, ‘reconstruct[s]’ the contents of international economic law in ‘socio-legal’ terms” (p. 38). Frerichs’s yardstick is one way of conceptualising the “distinc-tive virtues and vices” – or, it might be more 􀁦󰁩tting to say, the distinctive attrac-tions and pitfalls – of socio-legal approaches that the book set out to “highlight” (p. 4). The attraction of a socio-legal approach, on this reading, is that it can mobilise the empirical, methodological and theoretical resources of other dis-ciplines, speci􀁦󰁩cally the social sciences, to generate new insights about the ori-gins, operation, and e󰁦fects of law. By implication, Frerichs’s yardstick also points to the potential pitfalls of attempting to adopt a socio-legal approach. First, the materials that Frerichs says socio-legal scholars should master – such as data, discourses, policies, and practices – are not usually the preserve of legal expertise. This presents a challenge for legal scholars, who may 􀁦󰁩rst have to acquire the methodological and theoretical tools to competently examine  1112 󰁂󰁯󰁯󰁫 󰁒󰁥󰁶􀁩󰁥󰁷󰁳 󰁴󰁨󰁥 󰁪󰁯󰁵󰁲󰁮󰁡󰁬 󰁯󰁦 󰁷󰁯󰁲󰁬󰁤 󰁩󰁮󰁶󰁥󰁳󰁴󰁭󰁥󰁮󰁴 󰀦 󰁴󰁲󰁡󰁤󰁥 󰀱󰀵 (󰀲󰀰󰀱󰀴) 󰀱󰀱󰀰󰀹-󰀱󰀱󰀲󰀶 such materials. Second, it is not su󰁦􀁦󰁩cient to simply master these tools and thus to learn how to generate new sociological, political, psychological, or anthro-pological insights; one also needs to be able to use these materials so as to shed new light on the law, or to reconstruct law in “socio-legal” terms, as Frerichs puts it. While the book under review contains several chapters that meet these two challenges, it also o󰁦fers ample illustrations of the di󰁦􀁦󰁩culties involved in conducting illuminating socio-legal research.To this reviewer, David Schneiderman’s chapter on “Power and Production in Global Legal Pluralism” is an example of socio-legal research at its best. Schneiderman argues that global legal pluralist scholarship “bracket[s] the  way in which power relations de􀁦󰁩ne and then con􀁦󰁩gure legal norms and insti-tutions that regulate economic life at multiple levels” (p. 99). Schneiderman starts out by providing an overview of legal pluralist scholarship, its global vari-ant, and its relationship to international investment law. He then uses insights from critical International Political Economy (IPE) to subject several claims commonly advanced by global legal pluralists to critical scrutiny. What makes Schneiderman’s chapter an example of successful socio-legal scholarship is his ability to harness the perspective of a relatively coherent body of social scien-ti󰁦󰁩c  thought, namely critical IPE, to illuminate the blind spots and unques-tioned assumptions of a legal   discourse that has played a prominent role in shaping our understanding of the global investment regime.Halliday and Block-Lieb, in chapter 6, 􀁦󰁩nd a di󰁦ferent way to map the “gap … between the text and action” (p. 77). They note that socio-legal scholars, in try-ing to escape “   from  the text,” have tended to neglect to investigate the process of how actors “get… to  the text,” i.e. how international law is made (p. 77, emphases in the srcinal). In order to systematize their analysis of interna-tional lawmaking processes, the authors employ the concept of the “recursiv-ity of law,” which provides an umbrella for a series of hypotheses on when and how cycles of lawmaking are likely to occur. Importantly for the plausibility of their account, the authors draw on extensive empirical research – in the form of participant observation, a large number of interviews, and detailed analysis of draft and 􀁦󰁩nal legal texts – to substantiate their claims. By engaging deeply  with the empirical material relating to their subject, and by focusing on a sub- ject that constitutes an important context for understanding virtually any type of law – namely, the process of its own making – Halliday and Block-Lieb uncover a promising avenue for socio-legal research. A number of other chapters draw on rich bodies of social theory, but it is sometimes not clear how exactly these theories serve to illuminate the work-ings of law. In chapter 5, for example, Clair Cammage attempts to develop a socio-legal approach to regionalism. She provides a critical analysis of the   1113 󰁂󰁯󰁯󰁫 󰁒󰁥󰁶􀁩󰁥󰁷󰁳 󰁴󰁨󰁥 󰁪󰁯󰁵󰁲󰁮󰁡󰁬 󰁯󰁦 󰁷󰁯󰁲󰁬󰁤 󰁩󰁮󰁶󰁥󰁳󰁴󰁭󰁥󰁮󰁴 󰀦 󰁴󰁲󰁡󰁤󰁥 󰀱󰀵 (󰀲󰀰󰀱󰀴) 󰀱󰀱󰀰󰀹-󰀱󰀱󰀲󰀶 negotiation of one of the European Union’s Economic Partnership Agreements (EPAs), and employs the insights of a wide range of social and legal theorists to bring into relief the social dimensions of regionalism. Against this back-drop, Cammage criticises GATT Article XXIV – a provision permitting the formation of customs unions and free trade areas if certain conditions are met – for being “vague” (p. 68), unenforceable, “vulnerable to abuse” (p. 70), and for “overlook[ing] both formal and informal processes that may in󐁦󰁬uence macro-regional processes” (p.73). This is somewhat puzzling. What exactly is the link between GATT Article XXIV and the power asymmetries and com-plexities that characterise contemporary regionalism? At times, Cammage’s critique of Article XXIV appears to be premised on the notion that, if only  Article XXIV could be “revised in a meaningful way” (p. 76), it would serve to address the myriad ills that plague the EPA negotiations. What Cammage does not explore is how  Article XXIV could conceivably do that. As a result, the reader is left with a somewhat sterile juxtaposition of messy political prob-lems, on the one hand, and a lonely legal provision that is portrayed as deeply 󐁦󰁬awed, but also potentially redemptive, on the other hand. What remains unexplained is how  law is entangled with the political problems that Cammage is rightly concerned about. A related problem a󰁦󐁦󰁬icts chapter 16 by Kirsteen Shields, which begins by identifying “the roots of global inequality” as lying “within law,” and more spe-ci􀁦󰁩cally international law (p. 235), and ends by celebrating social movements, such as the Abolitionists, Fairtrade initiatives, “social enterprises,” and the Occupy movement, that avoid “a reinvigoration of the state,” and instead “ask for real remedies from global powers” (p. 247). The reason why Shields does not put any hope in the state or international law is that, on her account, the state and international law are part of the problem. Thus, legal positivism in inter-national law is said to have “served the unfettered growth of corporate entities” (p. 237), and it is suggested that the “root cause” of human rights violations can in most contexts “be found in the precise application of law,” and in particular in “the growth of treaty law,” which has marginalised the principle of equity (p. 240). In sum, “insistence on state-sovereignty is what led us into th[e] pre-dicament” of global inequality in the 􀁦󰁩rst place (p. 244), the implication being that the state and law cannot be part of the solution. What is striking about this account, especially when considered as an exam-ple of “socio-legal” research, is that it betrays an exceedingly formalistic and deterministic view of the e󰁦fects of law; “positivist” international law made by states (as opposed to legal change e󰁦fected by social movements) will invari-ably have certain e󰁦fects and is therefore to be avoided. What the chapter does not convey is a sense of the complexity, ambiguity and contradictions inherent
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