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Inspired by the contributions of Poul Kjaer and Kerry Rittich to this Special Issue, this article extends the reflection on the role and potential of law for social transformation. More specifically, I attempt to build on a revised framing of the constitutive role of law to draw the contours of a transformative instrumentalism, where law functions as an instrument for the articulation of political and social objectives. My account shifts the attention from transformative law’s form to its content, based on the premise that engagement with ‘political’ economy necessarily entails an engagement with the substantive standards that shape social relations of production and define the nature and extent of exploitation. Yet, I argue that the endorsement of law’s constitutive function and the turn to law’s content need not lead to the kind of instrumentalism that exhausts itself in particular policy reforms or prescriptions to assume control over processes of legal coding. Relying on a tentatively redrawn conception of the constitutive role of law that draws from both legal institutionalism and Marxist perspectives, I suggest that instrumentalism may instead be transformative by prioritising material ends, leaving open the question of the concrete legal and institutional forms that will materialise them. The directions of such transformative instrumentalism involve an element of ‘mobilisational democracy’ against the insulation of the economy from democratic control; reforms generative of collective subjects and centres of democratic power (‘non-reformist reforms’); and a focus on the planning and coordinating function of law among diverse – but united in their objective – legal rationales and institutional forms.
This article seeks to unpack the potential and limits of markets as instruments of economic planning in sustainability capitalism. Recent policies for sustainability transitions in the United States (USA) and the European Union (EU) (eg, Infrastructure Law, EU Green Deal) have signaled aspirations for a more prominent role of the state in coordinating the economy, while still relying primarily on market mechanisms for such coordination. Yet, could the market itself be conceptualised and structured as a political instrumentality for the achievement of social objectives? An important part of the puzzle of sustainability transitions is the transportation sector, and specifically the transition to Electric Vehicles, or New Energy Vehicles (NEVs). I explore the comparative legal constructions of markets for NEVs in China – the current global leader in NEVs – the USA, and the EU. Drawing from this case study, I first argue that law makes planning possible within markets, as the functional power of market processes can be strategically deployed for the achievement of politically set objectives. Acknowledging the deliberate and artificial character of markets raises the question of what we want markets for, broadening the scope of the political possibilities enclosed in them. I, then, proceed to challenge the enduring argument of the epistemic deficit of central planners, which morphs into prescriptions of decentralisation. I show that arguments against legal centralism and planning cannot stand on just epistemological grounds and are inevitably political. Finally, I attempt to outline the limits of planning within markets – and thus, to a certain extent, the limits of the constitutive function of law – for broader projects of social transformation.
Sociological approaches to law in both Germany and the UK have been characterized by internal divisions and divergent methodologies and aspirations. While, in the UK, empirical socio-legal studies have been a prominent way of studying how law shapes and is shaped by social institutions, in Germany, the “grand theory” of systemtheoretical approaches to law has had a lasting impact. In this Article, I discuss the epistemological contrast between these two sociological approaches to law by focusing on how they address transnational private regulation. Empirical socio-legal studies share an epistemic commitment to an objective and knowable social reality, and they tend to see human actors as the motors of history. Thus they focus on the interrelational dynamics within Global Value Chains (GVCs), searching for “what works” in transnational private regulation. On the contrary, systemstheory oriented sociological jurisprudence views social reality as constructed and fragmented into the epistemes of different social systems. GVCs are understood as selfreferential normative orders, in which the question of agency and human actors is secondary—the emphasis is on communications and anonymous forces of ordering. Attempting to inspect the possibilities for synthesis, I ask how “big” we can and should think in law and society. I thus attempt to outline an approach that starts from the materiality of social structures to investigate processes beyond individual agency and to uncover elements of normative reconstruction of the particular area of social activity.
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