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. 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