World Trade Law After Neo-liberalism

Few concepts in contemporary social debate have had such a confused history as the concept of neo-liberalism. Though it has come for the most part to be associated with the ideological legacy of the so-called Washington Consensus, beyond this limited convention, the use of the term both in academic writing and in the broader popular discourse has remained decidedly inconsistent (Steadman Jones, 2012: 10). The field of international legal studies has hardly been an exception in this regard. Whilst it is not the aim of this symposium to try to settle once and for all what meaning should be given to the idea of neo-liberalism in modern international law, a large part of what has motivated the writing of the essays collected here comes from the attempt to think through the various theoretical issues raised precisely by that kind of a challenge.

Despite their numerous differences, the essays presented all share the same starting hypothesis. The single most significant episode in the evolution of the contemporary international legal system over the course of the last half-century has been the rise of the neo-liberal model of governance in the area of international trade regulation.

Contrary to what the discipline’s traditional understanding would tend to suggest, the key turning point in the historical trajectory that has led to the emergence of the present-day configuration of the international legal–political arena has to be sought neither in the eruption of the so-called global war on terror at the start of the 2000s nor in the excessively overmythologized transition from the bipolar security paradigm of the cold war to the multipolar security paradigm of the ‘new world order’ in the early 1990s. Nor, for that matter, should it be sought, as numerous liberal internationalist commentators have tended to suggest, in the rapid expansion between the early 1970s and the late 1980s of the international human rights regime, but rather in that wave of fundamental structural transformations, which had swept through the field of international trade regulation between the mid-1970s and the early 1990s, a period which, for reasons explained in Andrew Lang’s essay, can today be called international law’s neo-liberal revolution (Lang, 2014). To understand the essential logic of the existing international legal system, one needs to understand the essential structure of this particular process: to work out how it began and developed, what stages it went through, which characteristic features defined each of these stages, and what sort of factors enabled its successful progression. Only by turning our attention to the question of how exactly this process has occurred in practice – how it has manifested itself at the level of the corresponding normative and institutional constructs – can we ever begin to identify what sort of operative dynamics underpins the organisation of the contemporary system of global governance, including what patterns of internal contradictions and transformative possibilities are inscribed within its constituent structures, be it at the level of political action, ideological projects or legal reform.

Or, at least, that is what one of the main themes at the heart of this symposium looks like today. It has not always been like that. The essays collected in these pages find their origins in a research workshop held at the University of Glasgow in November 2011. From simply aiming at first only to compare notes about how the neo-liberal turn has actually played out at the level of the positive legal materials, our ambition progressively turned towards trying to work out the internal logic of international legal history and in doing so uncover whatever latent regularities there could be found beneath the various positivist ‘surfaces’. If accurately decoded, the assumption went, the general pattern of such regularities might enable us to pin down those all-important hidden mechanisms by which the rise and decline of, say, different forms of legal-institutional design and patterns in the construction of international legal regimes could be connected and correlated with the rise and decline of different modes of international legal consciousness and, through this, the evolution of international law’s broader systemic functionality in the context of the contemporary system of global governance. Over time, however, this vision too began to transform. When we had first set out, our most immediate aim was to try to produce a rhetorical intervention in a discursive conjuncture populated primarily by mainstream international lawyers working on issues concerning the relationship between international trade law and the international human rights. The principal debate at the heart of this discursive conjuncture, as we saw it, was centred around a deeply problematic assumption, namely, that the traditional enterprise of international human rights not only stands entirely apart from the broader dynamic of international trade governance, but that it also offers the most effective ideological platform from which the negative consequences produced by the latter – in particular its support for the politics of market fundamentalism – could be critiqued and countered.

As a result of such a configuration of the discursive–rhetorical space, the general course of the legal debate about international trade policy had turned in recent years in an entirely unhelpful direction. Increasingly, the terms of this debate have come to be dominated by questions that appear to lend themselves to no meaningful resolution, even as they continue to encourage the production of ever more passionately argued academic writings – questions like ‘what role should international human rights law play in the development and execution of global trade policy?’ or ‘how can the institutional effects induced by global trade policy be most effectively contained to help uphold the values advanced by the international human rights system?’ This symposium, as we initially envisaged it, would aim to challenge and, hopefully, displace this way of structuring the trade-and-human-rights debate, by emphasising, inter alia, the various deep-structural linkages that exist between the two legal regimes as well as by highlighting the numerous patterns of doctrinal and conceptual indeterminacy inscribed within either of them.

What started out as a fairly conventional critique-of-ideology exercise soon, however, developed a fundamentally different theoretical ‘accent’. Having decided to use Lang’s recently published monograph on the history of the international trade regime (Lang, 2011) as the jumping-off platform for all our subsequent discussions, we very quickly discovered that the reactions it has inspired and triggered amongst us progressively took us farther and farther away from our original vision. By the time we came to exchange our first drafts with one another, the principal focus of our exercise, it became clear, was no longer limited to simply trying to critique and displace the standard narratives about international trade and international human rights regimes. The intervention that we were now effectively trying to produce did not so much target the field of international trade law scholarship anymore as it did the much broader debate about international legal historiography lato sensu. And it is this that draws the inquiry towards questions of ‘method’ and ‘historical theory’. What should international legal history be a history of? How can one best explain the ‘production’ of international legal events? What marks the ‘movement’ of these events through time? How does historical change manifest itself in the medium of international law?

What stands behind these inquiries is a shared sense of anxiety about the absence within the modern critical legal tradition – or at least that part of it to which we acquired access – of what one might call for lack of a better descriptor a ‘social theory of international law’, or, better perhaps, a theory of the social production of international legal knowledge. How did the shifts in the socialisation patterns within the international trade community over the last half-century relate to the changes in the conceptual apparatuses and reasoning techniques deployed by international trade lawyers? How did these two trajectories map onto the wider patterns of institutional evolution of the global trading regime? What were the connections and the underlying mediating mechanisms by which these processes correlated to the structural transformations in the internal logic of late capitalism?

The contributions to this debate concern the trajectory of the neo-liberal turn in international trade governance, not so much as a story about the substantive evolution of the international trade regime per se as a story about the mutual determinations between the institutional and the ideational aspects of the international legal architecture, including:

the scale of the participatory dynamics (a treaty for a few parties vs. a global compact bringing together several dozen member states) and its influence on the respective pathways for the internal transmission of professional doxa (a close-knit club model of informal socialisation vs. a quasi-constitutionalised formalised system of reported case law);

The three response essays by Grietje Baars, Robert Knox and Paavo Kotiaho, and Akbar Rasulov that follow Lang’s lead essay, which comes immediately after this introduction, outline a series of critical reflections on these and other related subjects, reflections that, as mentioned earlier, had been generated originally as a reaction to Lang’s book but which, as things stand, seem to have far outgrown the limitations of that context since. Lang’s own essay, according to our initial plan, was meant to provide something in the way of a brief explanatory overview of the book’s main argument. In the event, it seems safe to say, it has not (only) done that but also added something new. By putting in place a distinctly different thematic structure compared to that which was used in the book, it manages to bring to the fore a whole new set of theoretical issues and framing assumptions, which had not been raised in the book with quite the same sense of urgency or clarity. Where should one look for the evidence of what may have actually happened ‘within’ the professional doxa of the international trade community some 30 or 40 years ago? What role did conscious political projects and unconscious social biases play in the formation of this doxa? Has decreasing the space for well-intentioned political contestation and advancing the culture of technocratic reasoning in international dispute settlement made the international trade regime a more effective platform for the retardation of the ideals of social justice? At what level does governance-by-expertise tend to produce its most reactionary effects?

The essays collected in this symposium tend, for the most part, to gravitate towards three main genres of critical inquiry currently practised in the field of international economic law: ‘history of ideas’, ¹ Marxism ² and critical sociology of knowledge. ³ The fourth main critical tradition whose influence is notably absent from these pages is, of course, the Third World Approaches to International Law tradition. ⁴ It seems, though, one can find today a considerable number of other recent writings that attempt to explore a similar set of issues from a Twailian perspective, ⁵ so, perhaps, the impact of this particular omission is not quite as serious as it might otherwise seem.

Living at the tail end of an intense period of paradigmatic shifts has its obvious intellectual costs: When the old certainties no longer seem to work, you risk finding too many things that seem to work at once. But to the students of history – and the construction of ideological orthodoxies too – it also brings certain undeniable benefits.

Whatever other impression the essays collected in this symposium may produce, it is our hope that, above all else, their readers will take away from them the same sense of thrill and anxiety, which first brought us together some 3 or 4 years ago: The hunch that what we are facing here – as international lawyers but also as legal historians and legal sociologists – may very well be, in the end, the main ‘question of our times’.