Law and Polity Project

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The Law and Polity project is a multi-themed research project based at Edinburgh Law school which explores the social, political and philosophical relationships between law and polity at sub-national, national and supranational levels.

Formerly Piero della Francesca - Ideal City - Galleria Nazionale delle Marche Urbino

About the Law and Polity Project

The Law and Polity project addresses the challenges globalisation, transnationalism and sub-state devolution pose for the concepts of law and polity.

The type of polity we know as the state has assumed centre stage in the story of the making of modern law and, in particular, in the production of modern law as a systemic achievement. Within the dominant narrative, other conceptions of legal normative system and order have been defined in a manner that typically treats them as secondary elements within the law-state configuration; whether (1) as an ersatz, or less developed, version of the paradigm of state law and legal system (as in some versions of EU law, or of public international law and its ‘international community’), or (2) as contained within and conditioned by the general framing capacity of the legal and political order of a particular state (as in our conventional understanding of the many ‘disciplines’ of modern law – including the ‘public law’ disciplines of constitutional law and administrative law and the ‘private law’ disciplines of family law, property law, and the law of obligations), or (3) as dependent upon the extension of the legal and political framing of a particular state (as in subaltern legal orders associated with imperial states) or (4) as independent of any particular state but reliant for recognition and enforcement on the operation of state legal orders in general (as, for example, in the transnational lex mercatoria).

So understood, the state is the vital political organ with which we associate much of modern law. Many of our contemporary ideas of legal order and legal system, indeed, both presuppose and enable the modern state as the key organising framework of people, territory and government. The state, on this view, possesses two key properties. It supplies both a cultural framework of political community and a material framework of institutional authority within which legal order can developed and be sustained. Equally, however, a certain developed conception of legal order is necessary to the achievement and sustenance of the state. It follows that legal order, and the epistemic framework associated with legal order, has been as crucial to the accomplishment of the state as the state has been to the accomplishment of legal order.

Yet to what extent, if at all, should the symbiotic coupling of state and legal order, with its strong indication of mutual implication and mutual support (with all its associated benefits and pathologies) continue to dominate our understanding of the relationship between law and polity, and to what extent, more generally, should the very sense of a close coupling of law and polity (whether or not a state polity) continue to dominate our understanding of law and legal order? Do other more or less state-independent patterns of modern law contain lessons for forms of law and legal ordering that can exist in the absence of, or with a less central positioning of the (state) polity?

The state-centric perspective, so central to much thought in constitutional and public law, and also to the expanses of both private law and of modern legal theory, is challenged by three key tendencies. Each of these challenges is itself of long standing, but has become more urgent under conditions of contemporary globalization in which the legal and political authority of the state is subject to new pressures and contra-indicators.

In addressing these challenges we should in particular bear in mind the way in which the two key framing properties of the modern state polity – the cultural framework of political community and the material framework of institutional authority, together with the epistemic framework we associate with the juridical order of the modern state polity, can be retained, or may be replaced, replenished, supplemented or transformed through new legal and political forms. This set of inquiries involves rethinking the relationship between law and polity in significant ways.

Challenge number one – polity nesting

The first challenge is concerned with the compound quality of many state legal orders and political communities. Federal thought and other sub-state focused conceptions of political community and institutional authority traditionally, though far from uncontroversially, assume a model of the state as a kind of legal and political community of communities and authority of authorities. Does the recent rise of both sub-state nationalism and supranationalism (e.g. the European Union and other regional organisations, but also the UN at the global level) consolidate our sense of the state as just one level of political community and institutional authority among many, both nesting smaller polities and nested within larger polities?

Challenge number two – domain specialization

The second challenge concerns the general character of state law, and how that general character has provided an umbrella for a range of specialist legal disciplines and functions. For many, the proper units of legal order (and associated spheres and modes of social integration) are not the states and their constitutional law, or even territorial political communities in general, but the special (sub)systems of private law, social law, enterprise law, mercantile law, family law etc. Such functional specialisation always pushed beyond the boundaries of the state – think, again, of the history of the lex mercatoria – but this has become all the more pronounced in age of functionally specific transnational or global regimes in areas as wide-ranging as trade law, environmental law and criminal law. In the trans-nationalisation of functional specialisation we see the rise of a new form of non-state polity (WTO, global climate change regime, lex sportiva, lex digitalis, etc.). Is this process of polity differentiation inexorable, and does it require us to reassess the limits of the integrative capacity of the state polity? To what extent and with what consequences can these new domain-specific regimes, and/or their networked interconnections (including the connective normative framework we associate with various strains of private international law and models of legal pluralism), as well as the transnational corporate interests, civil society forms and/or social movements potentially associated with them, be conceived of as polities – as species of public authority with cultural and material attributes resembling those of statehood?

Challenge number three – legal disembedding

Unlike the first two challenges, the third challenge does not come from the emergence or enhanced profile of polities alternative to the state and of the development of legal ordering appropriate to this, but from the other side of the equation; namely, from the disembedding of law from any and all particular polity settings and its capacity to move between and stand over a range of polity settings. Precedent for this can be found in the development of public international law which, as noted above, has traditionally been only tenuously linked to an ‘international community’, but there is a broader contemporary movement of ‘cosmopolitan law’ or ‘global law’ in which law is treated as increasingly detachable from its cultural and institutional setting, and so no longer as polity-specific, or, in some versions, as no longer even necessarily ‘hanging together’ as an ordered assemblage. Again, we find early examples of such ‘deracinated’ and even disaggregated law in the traditions of ius gentium and ius commune, but this movement has developed exponentially with the rise of a ‘global’ legal consciousness amongst legal, judicial and broader political elites and a renewed vocabulary of legal universalism and doctrinal mobility in human rights, criminal law and other areas.

Neil Walker (Regius Professor of Public Law and the Law of Nature and Nations)
Cormac Mac Amhlaigh (Senior Lecturer in Public Law)
Claudio Michelon (Professor of the Philosophy of Law)

The Law and Polity Project has been generously funded by the Royal Society of Edinburgh and Edinburgh Law School.

Law and Polity events

Law and Polity Launch Conference

The Law and Polity Project was launched with a high-level conference in late 2016, inviting leading European and global speakers both in (various versions and dimensions of) the state legal tradition and in each of these three categories of challenge – polity nesting, domain specialization and legal disembedding – to develop their understanding of the key processes at work and to address the various challenges to the understanding of the global role of law.

Law and Polity Seminar Series

The Law and Polity Project hosts individual seminars on a regular basis which develop a theme within one of the three strands of the broader project.

Previous seminars include:

Martin Loughlin (LSE)
Ralf Michaels (Duke University) - Law and Recognition: Towards a relational concept of law? (23 February 2017)
Jakko Husa (Lapland) and Elisenda Casanas Adam (Edinburgh) - Legal Pluralism in Divided Societies (6 October 2017)
Christopher McCrudden (Queen’s University Belfast and Michigan Law School) - Towards a Normative Theory of Comparative Human Rights Law (30 October 2017)
E. Christodoulidis (Glasgow University) and T. Isiksel (Columbia University) - Law, Polity and Economy (3 November 2017)
Rick Rawlings (UCL) - Brexit and the Constitution: Devolution, Reregulation and Intergovernmental Relations (7 November 2017
Gianluigi Palombella (Pisa) and Jan Klabbers (Helsinki) - Interlegality and Transnational Law (10 November 2017)

Our projects

International Legitimacy

The International Legitimacy project is an interdisciplinary project examining various dimensions of legitimacy beyond the state.

Learn more about the International Legitimacy project

Civic Friendship

The Civic Friendship project aims to examine the sources of civic friendship as well as its legal and political dimensions.

Past events

Workshop 'Civil Friendship and the Law'. More information on this workshop may be found here.

Workshop 'The Ties that Bind: Law and the Philosophy of Community’, organized Amalia Amaya, Claudio Michelon and Neil Walker was held in Spring 2022. This workshop explored the relevance of the law to conceptualizing, creating, and sustaining the ties that bind us together.

Jurisprudence Roundtable - Fraternity of Peoples, held by the Edinburgh Centre for Legal Theory (ECLT) and the Edinburgh Centre for International and Global Law in February 2022 examined the legal and political dimensions of the principle of fraternity in an international and global context. Learn more.

Keith Forum on Commonwealth Constitutionalism

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The central objective of the Keith Forum on Commonwealth Constitutionalism is to harness the reservoir of comparative ideas from the Commonwealth for current UK constitutional debates; and conversely, to benefit Commonwealth states facing similar challenges, from a closer engagement with constitutional developments in the UK.

Conjoining multidisciplinary approaches from History, Politics, and Law, and confronting challenging diversities within a historical unity provided by Commonwealth traditions, this project encompasses public events, scholarly outputs, and in particular, the establishment of a research network. It revitalises Commonwealth scholarly approaches to constitutional and political comparativism that once flourished globally, by deploying contemporary techniques, collaboration, and knowledge exchange to address enduring concerns of democratic development.

The project’s outputs are aimed at producing a coherent body of comparative constitutional knowledge that can be called ‘Commonwealth Constitutionalism.’ Edinburgh was once the centre of this scholarship through the work of Arthur Berriedale Keith. This project places Scotland at the heart of this global intellectual re-engagement.

About the project

The project builds on existing constitutional and policy debates within the Commonwealth that are often the product of the unique but shared characteristics of Commonwealth constitutions, and aims to open fresh avenues of comparative and interdisciplinary constitutional scholarship. However, no scholarly research school exists to provide a holistic approach to this fertile comparative complexity, let alone one alive to the benefits of doing so in a partnership between law, politics and history. By exploiting the inherent strengths of Edinburgh University’s and Scotland’s longstanding connections to the Commonwealth, the project addresses this gap by providing an institutional home for the necessary academic and policy network, opportunities for regular interaction within the network, knowledge exchange between the academic network and the wider world, and developing new teaching programmes.

The project is founded on two firm convictions, both of which are critical to scholarship in an age of unravelling certainties. First, the value of interdisciplinary collaboration and cross-fertilisation between scholars of history, law, and politics in relation to major theoretical, doctrinal, and institutional debates that are shared between these disciplines, at the heart of which is the protean nature of forms of constitutional organisation. Second, the value of comparativism in understanding constitutional orders and political institutions across jurisdictions, cultures, and histories. It might be added, thirdly, that in bringing the hitherto neglected Commonwealth – understood as an historically shared intellectual and cultural sphere – to the fore, the project aims to complement other perspectives serving current constitutional debates, in particular American and European influences.

The empirical field of Commonwealth Constitutionalism is defined by ideal conditions of unity and diversity for interdisciplinary comparative scholarship. Commonwealth member-states share traditions of parliamentary government and common law, and increasing normative convergence around principles of democracy and human rights. Conversely, the Commonwealth is a community of countries representing every continent and over 2.5 billion people full of social, political, economic, and cultural diversities. This combination of unity and diversity promises much for comparative enquiries into central questions of contemporary constitutionalism, including heuristic models of constitutionalism and institutional design; legitimacy, rights, and the relationship between law and politics; the negotiation of territorial, societal, and value pluralism; the relationship between tradition and modernity, and the meaning and relevance of both; and modes and methods of constitutional change.

The project is convened by Dr Asanga Welikala (Edinburgh Law School, University of Edinburgh) and Dr Harshan Kumarasingham (School of Social and Political Science, University of Edinburgh).

Events

The signature event of the project is the annual Arthur Berriedale Keith Lecture and the Keith Forum on Commonwealth Constitutionalism.

The Lecture, evoking the life and work of Arthur Berriedale Keith (1879-1944), Regius Professor of Sanskrit and Comparative Philology and Lecturer on the Constitution of the British Empire at the University of Edinburgh, will be a public event. The lecturer will be an eminent person with public recognition for distinguished services to academia, law, politics, public administration, entrepreneurship, literature, or culture.

The Forum will have a particular theme each year and will bring together relevant members of the network to present papers, and selected papers will be annually published.

Previous events

Inaugural Arthur Berriedale Keith Lecture and Keith Forum 2018

Blog

Keith Forum 2018

Thoughts on the Inaugural Arthur Berriedale Keith lecture (Rohan Bannerji, 5 November 2018)

Thoughts on ‘Things Done in the Dark and in the Middle of the Night’: Nehru, Kashmir, and the Subterfuges of Building Constitutional Democracy’ (Rohan Bannerji, 6 November 2018)

Session 1 – History of the Commonwealth’s Constitutional Experiences (Rohan Bannerji, 7 November 2018)

Dr Deval Desai

Deval Desai web desat.jpg

Reader in International Economic Law

Co-Director of Advancement and Alumni Relations

MA (Oxon), PGDipL, PGDipLP, LLM, SJD

Office hours:

Email: deval.desai@ed.ac.uk

View my publications

Dr Deval Desai is Reader in International Economic Law. He joined Edinburgh Law School in 2020. His work focuses on law and development, administrative law and regulation, theories of the state, and and the role of knowledge and expertise in institutional reform processes. He has taught on these topics at the Geneva Graduate Institute, Harvard Law School, Manchester, Northeastern Law School, SOAS, and the Universidad de los Andes.

Deval previously held research positions at Harvard Law School and the Geneva Graduate Institute. He serves as editor-in-chief of the Cambridge University Press book series, Elements in Legal Theory and the Global South. He also serves on the editorial board of the Hague Journal on the Rule of Law, the Emerging Scholars Forum of Global Perspectives, and has served on the editorial board of the Harvard International Law Journal.

Deval is an interdisciplinary scholar. His articles appear in leading journals in law, political science, and development studies. His first monograph, Expert Ignorance (Cambridge University Press; open access), draws on legal and social theory, development studies, international relations, and performance and theatre studies. His work is also informed by a decade of experience working for the World Bank on rule of law and governance in sub-Saharan Africa; as well as advising the UN on rule of law issues.

His ongoing research projects include:

PI on a series of grants exploring the importance of individual and societal “loss” in the legal institutions that guide transitional processes. This includes grants from the British Academy (£9,370) the University of Edinburgh’s Big Ideas Accelerator (£16,045), and the Scottish Funding Council International Science Partnership Fund (£24,983).

Co-investigator on the Foreign, Commonwealth, and Development Office Peacerep programme, leading a research team on a two-year research project on ‘Constitutional Patchworks and Public Finance’ (£456,095), which studies the constitutional implications of local fiscal and revenue arrangements in fragile and conflict-affected contexts.

A PI on a £2.1 million, five-year Swiss National Science Foundation Sinergia project entitled “Reversing the Gaze: Towards Post-Comparative Area Studies” (with B. Korf, E. Macamo, and R. Weber), which studies the politics of social scientific comparative methods as they are applied to political questions in Europe and the Global South. Within this project, Deval also leads a team that draws on fiscal sociology and administrative law to study social welfare provision in India and Italy, and its implications for theories of the administrative state in the Global South.

Deval is a recipient of the Dame Muriel Spark Medal (2024, Royal Society of Edinburgh, for exceptional achievements in the arts, humanities, and social sciences), and the Chancellor’s ‘Rising Star’ Award (2023, University of Edinburgh, for excellence in research).

Deval is also a committed mentor. He was highly commended in the university’s Susan Manning Award for Inspiring Mentor in 2022. Members of his project team hold or have held permanent posts (Kent Law School, Jindal Global Law School), and major fellowships at the EUI and Edinburgh’s Institute for Advanced Studies in the Humanities. He also supports training, collaboration, and mentorship among junior social science faculty and early career scholars more broadly, especially from and in the Global South. To this end, he co-directs the Global Justice summer school at CEU, and helped establish and coordinate the Global Scholars’ Academy at the Geneva Graduate Institute. He has also served as faculty on similar programmes, including Harvard’s Institute for Global Law and Policy Workshop, Bremen’s Interdisciplinary Autumn Research School, and the EDOLAD summer school.

Deval trained in history and French literature (M.A., Oxford), and law and social theory (PGDipL and PGDipLP, City University/BPP Law School; LL.M. and S.J.D., Harvard Law School). At Harvard, he held the Byse, Program on Negotiation Next Generation, and Institute for Global Law and Policy fellowships. In recognition of his work on law and development, he held an inaugural Bingham Center International Rule of Law Fellowship. He is a Fellow of the Royal Society of Arts, the Young Academy of Europe, and the Young Academy of Scotland.

Ph.D. supervision interests

Deval welcomes proposals for postgraduate research in the areas of law and development, administrative law, regulation, and law and policy.

He currently supervises: