Speaker: Dr Anna Chadwick, University of Glasgow
Discussant: Dr Grietje Baars, Reader in Law & Social Change, City Law School

The event is hosted by the International Law and Affairs Group (ILAG), City Law School.

In this presentation, I explore the value of scholarship in the tradition of ‘legal institutionalism’ for a project of re-examining state obligations with respect to socio-economic rights in the context of capitalist political economy. Advocates of rights-based solutions to poverty tend to focus on how mechanisms to advance relevant categories of human rights, above all socio-economic rights, can be strengthened through mechanisms such as judicialisation, monitoring, and the creation of accountability mechanisms.

Their analyses frequently neglect questions of how other legal rights and legal institutions may function as obstacles to the eradication of poverty and the realisation of human rights. Recent scholarship in the tradition of ‘Legal Institutionalism’ (Deakin et al, 2017; Pistor, 2019) ascribes a fundamental, or even ‘constitutive’ role to legal institutions in enabling the operations of a capitalist market economy.

Significantly, contra; the prescripts of a wide range of economic and political perspectives that would cast a particular constellation of legal institutions as necessary to a national project of promoting economic growth, and, thereby, tackling poverty, these scholars argue that the same legal regimes that are seen to be central to the process of growing the national economy also serve to privatise wealth, effectively operating to obstruct access to productive resources by social majorities and impeding efforts by the state to redistribute wealth to wider constituencies.

Legal Institutionalism has attracted criticism for fetishising private law and overplaying role of lawyers in processes of capital accumulation. From the perspective of longer-standing critical traditions, notably critical political economy, the creation of capital can only be understood as a complex social process grounded in the exploitation of labour. I will not contest the complaint that legal institutionalism does not provide an adequate account of capitalism.

Nevertheless, I will argue that critical engagement with the role of legal institutions in the privatisation of wealth can be useful to the human rights movement as it can serve as the basis for challenging prevalent perspectives on the capacity of the state to meet its obligations regarding socio-economic rights. I discuss the cases of two legal ‘institutions’, derivatives and money, as examples to support my arguments.