ABSTRACT
As I suggested in Chapter 1, however, the commonplace assumption of an “elective affi nity” between economic globalization and the rule of law may be misleading. Some evidence does suggest that economic globalization is generating a unifi cation of basic technical standards within a wide array of economic sectors.3 Nonetheless, a careful examination of novel forms of legal decision making most closely connected to economic globalization shows that they exhibit only a limited dose of those legal virtues typically associated with the traditional ideal of the rule of law. Economic globalization relies on ad hoc, discretionary, closed, and nontransparent legal forms fundamentally inconsistent with a minimally defensible conception of the rule of law. Furthermore, I argue that what the Frankfurt School theorist Franz L. Neumann would probably have described as the pervasive Situationsjurisprudenz [situational jurisprudence] of contemporary capitalism, pace neoliberal claims to the contrary, cannot be described as an atavistic leftover from the dark ages that predates the victorious ascent of free market ideology on the global scale in the 1980s.4 The rule of law often
remains incomplete because the economic giants who have gained the most from globalization benefi t unambiguously from discretionary, informal, and situation-specifi c forms of legal activity. In a political and economic climate characterized by fervent competition between states driven to attract and cultivate economic investment, nation-states have undertaken little action to counter international capital’s preference for porous, open-ended law.
