3 - Theorizing the role of law in the global political economy

Summary

In addition to the analytical reasons considered in the last chapter, there are important theoretical factors that contribute to the obscurity of the law merchant order. Dominant approaches to international relations and international law have a problem “locating” private authority and law. They are incapable of theorizing the political significance of nonstate actors and nonstate law. Public definitions of authority and law block the association of politics with private activity and actors, while state-centric and territorial theories of rule confine political activity to the state and create impediments to recognizing the political nature of private international trade law. Thus dominant theories are incapable of theorizing the historical significance and normative force of transnational merchant law. Their fundamentally liberal/realist theoretical origins and legally positivistic epistemologies and ontologies block the association of private, nonstate economic actors and their law with history making and normativity. Such associations threaten to undo the “liberal art of separation.” These problems stem, in turn, from a more profound inability of the disciplines of both law and politics to theorize law as an historically effective social force. In other words, neither international relations nor international law is capable of generating a “critical” understanding of international law. As a consequence, they result in theories that are blind to the transformations in global governance associated with the juridification, pluralization, and privatization of international commercial relations. Moreover, limitations in their explanatory capacity, while significant, are eclipsed by an even more pressing limitation.