Limits of Legal Evolution Knowledge and Normativity in Theories of Legal Change
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Limits of Legal Evolution Knowledge and Normativity in Theories of Legal Change Liam McHugh-Russell Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 13 June 2019 European University Institute Department of Law Limits of Legal Evolution Knowledge and Normativity in Theories of Legal Change Liam McHugh-Russell Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Stefan Grundmann, European University Institute (EUI Supervisor) Professor Claire Kilpatrick, European University Institute Professor Peer Zumbansen, Osgoode Hall Law School Professor Simon Deakin, Cambridge University © Liam McHugh-Russell, 2019 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I Liam McHugh-Russell certify that I am the author of the work Limits of Legal Evolution: Knowledge and Normativity in Theories of Legal Change I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 114,607 words. Statement of language correction (if applicable): This thesis has not been corrected for linguistic and stylistic errors. Signature and date: Liam McHugh-Russell May 26, 2019 Abstract Over the last forty years, legal theory and policy advice have come to draw heavily from an ‘evolutionary’ jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life—interests, institutions, systems—from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus of transformation, mediating the interaction between law and social phenomena and acting as a catalyst of legal innovation. Prior work by Simon Deakin has integrated insights from systems theory to show how the interaction between law and economic institutions can only be properly understood by attending to the epistemic frame law uses to interpret economic practice. Using a case study on the impact of ‘law and finance’ literature on World Bank policy advice and, consequentially, on legal reforms adopted by many developing countries between 2000 and the present, I show that such attention to legal knowledge is inadequate. The case points, first, to the contingency of the intellectual tools used to understand legal institutions. Rather than deploying a determinate rationality, private and public actors address legal, economic, and ethical problems using a variety of paradigms: viewpoints are not determined by realities. More fundamentally, the cases suggest that successful paradigms, rather than economic or political realities alone, shape the dynamics of socio-legal change. My conclusions address some normative questions that arise when researchers in a social scientific mode are implicated in the processes they seek to document. v Acknowledgements Preferatory remarks like these are usually framed as an expression of gratitude to those who have helped carry out a research project and, as a consequence, offer an indicator of what made that project possible. Producing a scholarly text of this scope and detail depends upon a thick grid of social and material ties. If anything of value appears in these pages (and I think it does), it has not been produced through my efforts alone. Thanks are due. Given the fraught circumstance faced today by researchers in the humanities, however, it is also appropriate, in the spirit of Woolf’s A Room of One’s Own, to be explicit about the conditions under which that value could be produced. The European University Institute (EUI) is a truly unparalleled setting to do a doctorate. The EUI offers a rich environment to test ideas, engage across disciplinary boundaries, and develop one’s thinking, as well as fostering a community that strongly supports the scholarly ambitions of all researchers. During my time at the EUI, I learned a great deal from seminars with Dennis Patterson, Dirk Moses, Giorgio Monti, Sofie Moeller, Nehal Bhuta, Matthew Hoye, Tobias Kelly, Simon Deakin, Youssef Cassis, László Bruszt, David Trubek, and Claire Kilpatrick. In two Private Law doctoral workshops organized by Hans Micklitz and Stefan Grundmann, I received constructive feedback from many participants, notably Yane Svetiev. Ola Innset and Julia Rone were tireless collaborators in planning and delivering the agenda of our neoliberalism working group. I was gratified by the enthusiastic and substantial contributions of participants in that group as well as those of an informal reading group on actor network theory and Latour. And this is all beside my access to an at-times overwhelming menu of lectures, symposia, colloquia, and seminars to nourish my work. Researchers at the EUI are not only welcomed as colleagues and fully integrated into the intellectual community, they are also afforded resources that make a real difference to the completion of their own work. First and foremost, the EUI provides the space, time, and material support for researchers to actually write when the time comes, Where the library did not have a source I needed access to, it was fast made available. ICT Services maintains computers, scanners and printers, online resources, and audio-visual tools that, for the most part, simply work. Problems that do arise, whether with these technologies or with other aspects of the workspace, are quickly addressed. The mensa vii offers a healthy menu of subsidized meals to researchers that significantly increases the EUI’s value as a workspace. Multiple departments and professors provided funding for research-related conferences and workshops that I helped to organize. Institutional support for these events also included the critical contribution of administrative staff, who treated our projects with the same attention and professionalism they provide to faculty. For their competence, kindess, and expertise, I want to especially note the contribution of Laura Borgese, Alina Vlad, Ana Dicu, Claudia De Concini, and Eleanora Masella. The easy-to-miss cornerstone of my doctorate was having the opportunity to do it at all. During five years of research and writing, I received generous doctoral grants from the EUI law department and the Social Sciences and Humanities Research Council of Canada. The law department took a chance in offering me a rare spot in the doctoral program available to ‘non-European’ candidates. I hope that I have risen to their expectations. Beyond the EUI, Harvard’s Institute for Global Law and Policy funded my participation in both a writing workshop and a conference in 2015, which offered a context to discuss an early version of chapter 5 with a sharp, like-minded audience, and connected me to a deep, diverse, and thoughtful network of interlocutors too numerous to name here. I also received crucial feedback on chapter 5 from participants in a writing workshop hosted by Siobhan Airey and Mark Toufayan at the University of Ottawa in winter 2017. The Labour Law and Development Research Lab provided an office in Montreal, bridge funding, and an engaged community of students and scholars during extensive revisions to the dissertation in the winter of 2019. Emily Painter, in particular, made for an ideal office-mate. I have been long been impressed by the mentorship, warmth, and support that the Lab’s founder, Adelle Blackett, extends to her junior colleagues, but I was still overwhelmed by her generosity in the last few months. I should also acknowledge that the Trudeau Foundation and the Canada Research Chairs program made it possible for her to extend this support to me. I had productive conversations about aspects of this project with Nicola Hargreaves, Alberto Horst-Neidhardt, Ryan Griffiths, Ida Koivisto, Zeynep Koçak-Şimşek, Heidi Matthews, Leon Castellanos Jankiewicz, Heikki Marjosola, Umut Özsu, Joanna Langille, Elizabeth McAllister, John Haskell, Pascal Macdougall, Robert Wai, Peter Szigeti, Iagé Imola, Merritt Fox, Jotte Mulder, Liam Campling, Trevor Young-Hyman, Andrew Lang, Jen viii Raso, Ola Insett, Julia Rone, Przemelsaw Palka, Machteld Nijsten, Anna Chadwick, Magda Malecka, Nicolas Perrone, Siobhan Airey, Dan Danielsen, Peter Sand Henriksen, Robert Lepenies, and numerous others who, beyond thanks, deserve apologies for not getting mentioned by name. Kerry Rittich, who has long incited insight (and inspired some needed humility) during my development as a legal scholar, fruitfully suggested early on that I connect my lines of inquiry to critiques of expertise, and reminded me at another key moment not to lose sight of law’s place in my analyses. Fabrizio Esposito forced me to admit that I was undertaking a project in the sociology of knowledge, and would have to engage with that literature to succeed. Fleur Johns engaged generously with the project, and flagged the risk when doing historical research of reifying a given story of what happened rather than demonstrating its contingencies and lacunae.