David Kennedy Draft of October 18, 2013 Chapter Two: Inequality: Law and the Global Dynamics of Centers and Peripheries

Download 75.27 Kb.
Size75.27 Kb.
David Kennedy

Draft of October 18, 2013

Chapter Two:

Inequality: Law and the Global Dynamics of Centers and Peripheries

8653 words
In the last chapter, I argued that global governance is a chaotic and ruthless struggle rather than a constituted or coherent system of public order. Governance by struggle is undertaken in thousands of settings whose stakes and outcomes are legible in legal arrangements. One outcome has been the progressive separation of global political and economic life as both have been legalized and dispersed across the planet. Economics has everywhere been disentangled from politics and economic life dis-embedded from political contestation. Politics has been developed as the exclusive activity of specialized institutions linked to territory and an imaginary polity. Both projects have been carried out through the routine activities of experts managing policies oriented to visions of good governance and market efficiency which reproduce an inability to contest or manage issues of political economy successfully. Both projects reflect the broad ideological commitments of the policy class and both were carried out as legal and institutional undertakings, supported by the knowledge practices of dedicated professionals. Together they have generated the conditions – the agents and the structures -- for a world political economy marked by an accelerating dualism between the regions, sectors and classes to whom much – and to whom little -- has been given.
It is difficult to think about such a dynamic and ongoing struggle without asking how it all adds up. Is there a structure or system that holds it all together? Are there normative or institutional arrangements which we could identify as “constitutional” for global order? Many people writing about world politics and international law try to answer these questions. On the legal side, perhaps the United Nations Charter and the doctrines of public international law provide the background constitution for the state system. Perhaps the World Trade Organization and the norms of human rights provide a kind of constitution for global economic and social life. On the political side, diplomatic and military history are instructive for thinking about how great and not so great powers can be expected to behave in a “balance of power” or “hegemonic” or “balance of terror” system. Both political scientists and economists have been drawn to theoretical models exploring regularities in the behavior of self-interested actors in an economy or a polity which may lead to some kind of equilibrium.

Interpreting the terrain as an iron cage, an anarchic chaos or something in between is often a matter of perspective. If you find other people’s gains have been locked in, you are likely to think the system is coherent, if biased against you. If you are at the center of things, confidently allocating stakes here and there, you might well think the system is far less stable or coherent and requires your constant managerial vigilance. Assertions about the relative orderliness of the situation are also routinely deployed strategically. European scholars, for example, are far more likely to insist the global legal order has a discernable “constitution” than their American colleagues. It is not hard to see that it could strengthen their hand as professionals, and the hand of their middle-power nations, were that to be the case.

Replacing the search for order with a map of distribution

There is a great deal to be learned about the struggles through which we are governed globally without taking sides in debates about how and whether it all adds up. I propose to focus rather on the recurring production of winners and losers and the dynamic process by which sectors, firms, nations, regions and peoples come into and reproduce relationships of inequality and hierarchy across the global terrain of struggle without worrying about whether and how it all adds up. This is a more micro and mid-level set of questions. In the global governance struggle, how are resources, authority, and status distributed, when and how do those distributions become more or less stable, and how do those inequalities affect what happens next? In the large and small scale dynamics by which inequalities arise and come to be sustained, legal institutions and professional practice are central. We can often read the current score in the struggle of winners and losers in their allocation of entitlements. As firms, sectors, cities or nations use law to lock in their gains, cycles of inequality between groups or types of winners and losers may arise.

The law most significant for understanding global governance struggle is not the law which aims to constitute a global legal order, the international public norms which pass through the doctrinal channels monitoring the “sources of law,” the treaties structuring intergovernmental organizations or the rules promulgated by international courts and tribunals, although any of these may be relevant. The laws relevant to governance struggles are those which allocate stakes and consolidate or undermine the authority of economic, political and cultural actors as they struggle with one another over gains from transnational activity. These may be local rules, informal expectations, national laws, private contractual or institutional structures – and the rules of public international law structuring sovereigns and the relations between them. When we look at things this way, the question is not whether the rules contribute to global legal order, but whether they distribute, affect the terms of bargaining and struggle, or themselves are part of what is at stake in those struggles.

Global governance is not only the sum of countless individual struggles, moreover. Those struggles generate results which bunch together, consolidate the powers of some and the vulnerabilities of others, develop repeating patterns of inequality and hierarchy as bargaining and struggle continues. We might think of these more or less stable mid-level dynamics as relations between “centers” and “peripheries.” Reflection on the role of law in the dynamic relationship between centers and peripheries may offer a path to explore questions of global political economy --- the dynamics of inequality, the distributions of growth, the reproduction of hierarchies within and between leading and lagging sectors, regions, nations and cultures --- without resolving large-scale questions about the structure or legal constitution of the world “system” as a whole. An atlas of recurring dynamics between centers and peripheries may provide a basis to criticize the allocation of powers and incapacities in the world and generate proposals for change. The goal would be less to reform the world system than to strengthen the hands of one or another actor in ongoing governance struggles.

Identifying gains, losses and the norms or practices which distribute

The first step to mapping global governance as a struggle over distribution is to identify what is at stake in struggles among and within firms, sectors or nations and how those stakes have been distributed and secured. This is easiest to see in the distribution of economic gains across global value chains: firms struggle with one another to increase their bargaining power by seeking to insulate what they contribute from competitive pressures while ensuring that those with whom they bargain confront robust competition. For example, your firm may have intellectual property in the product of the value chain and your suppliers may compete with one another in an environment where all firms have the privilege of access to low-wage labor and workers have no rights to bargain collectively, within firms or across the industry. The arrangement of public and private law in a world of legally independent sovereigns allows you to secure the advantages of weak foreign labor law while defending your intellectual property abroad.

You may also have exclusive access to a link in the distribution system, strong brand recognition among consumers, exclusive arrangements with retailers, or all of the above. To the extent local and international anti-trust policies permit this level of exclusivity, you may cut your suppliers off from negotiation with others along the chain: they must make a deal with you. Your suppliers may try to gain an advantage vis-à-vis each other by being faster, more reliable, having knowledge of your needs, or by securing privileged access to financing, transport, labor or raw materials. These “competitive advantages” will also be reflected in and dependent on legal and institutional arrangements. Some may be protected by administrative license or may be embedded in more or less exclusive contracts with development banks, local investors, local governments. The relative productivity of their labor force may reflect a variety of networked relationships, access to housing, educational and health services, local family structures, tolerance for labor unrest, relations with local safety and other inspectors. Their know-how may be reflected in employment contracts or secured simply by defense against trespass within their property. They may have developed relationships with local regulators which speed their time to market or smooth their compliance with other local regulations. They may have obtained – through purchase or license – entitlement to land for their factory which secures access to transport or labor.
As they strengthen their hand relative to their competitors, their advantages may come to be embedded in long term contracts with you which give them further room to maneuver against their competitors. The result is an allocation of the overall gains from production among your firm, your financiers, your shareholders, your consumers, your workers, those of your suppliers and all those who are unsuccessful at entering this value chain at some point. That allocation will not be equal, but nor will it be an objective reflection of everyone’s “productivity,” unless we are careful to note the extent to which productivity is itself a function of entitlements, bargaining power and strategy.
A parallel set of allocations occurs in realms which are less clearly structured as bargains over economic gains. It is possible, for example, to interpret even international high politics as a set of struggles and bargains whose outcome depends on formal and informal norms, expectations and institutional arrangements. Take the controversy sparked in 2013 by Edward Snowdon’s disclosure of U.S. government electronic intelligence gathering practices. Prior to the disclosure, we could assess the status of forces. An enormous number of companies and government agencies played a role in the provision of global internet and telecommunications services. A variety of public and private entities in many countries had access and sought access to electronic data both publically and secretly. Public, private and government knowledge about these efforts was distributed in diverse ways. Some had become matters of public and political controversy – alleged Chinese corporate and military espionage aimed at U.S. companies, for example – most had not.
Snowdon’s disclosures shifted the terrain. His global political power to do so resulted from his privileged access as a private contractor with Booz Allen holding a U.S. security clearance, a power which could only be exercised against the background of the firm’s disciplinary process (he was immediately fired) and the U.S. government’s legislative, prosecutorial and enforcement jurisdiction over him, discounted by his ability to use the global airline and communication system to flee the jurisdiction, engage the interest of other governments whose interests diverged from the United States, and stimulate public reactions by supporters and opponents worldwide, who had a variety of instruments at their disposal to register their interest in what happened to him, what happened to the United States, the future of electronic surveillance and the innumerable other issues raised by various actors in the aftermath of his disclosure.
An enormous variety of existing legal and institutional arrangements influenced the distribution of power among these actors in the days and months that followed: rules about travel and extradition and asylum, rules and informal expectations governing the media in different countries, the corporate structure and regulatory environment for telecommunication, internet and social media platforms. The many actors jostling for position after Snowdon’s disclosures were already in conversation and struggle about innumerable other issues. The distributions of authority on the contemporaneous agenda for discussion among China, the United States, Ecuador, Russia, the European Union, the telecommunications industry, the U.S. Congress, and so on also affected the bargaining power and position of these actors. In short, Snowdon’s exercise of power took place in a complex terrain allocating political authority, economic possibility, prestige and legitimacy among innumerable actors. As the incident played out, people – including Snowdon -- struggled over the distribution of political gains from what had happened. They did so with very different powers at their disposal and the outcome shifted the distribution of those powers.
Economic and political struggles over distribution are not only conducted through the peaceful assertion of entitlement or persuasive bargaining. It is important to recognize that violence and force are also part of the story. Public actors routinely enforce entitlements coercively and exercise their power through calibrated applications of force. My exercise of legal rights and privileges can put you out of business, destroy the value of your investment, increase the chance of your death by accident or disease, ruin your marriage. And the threat and use of coercion and violence not sanctioned by the state is a routine part of local and transnational bargaining, whether in families, communities or international political, cultural or economic networks. Whether explicit or implicit, threats of violence and coercion are part of the most routine struggles over economic and political gains.
Winners and losers: the binary structure of governance struggle
It would be an enormous sociological undertaking to map the range of formal and informal institutional arrangements and entitlements that bear on distributions of power and influence the outcomes in global economic, political or cultural struggles. When I looked at the shifting distribution of powers in contemporary warfare, I was struck by the complexity of the process by which actors with an interest in this or that act of war could seek to influence its success and relative violence. It was helpful to simplify the inquiry by thinking of struggle across this terrain in binary terms – those seeking to strengthen the ability of a given military or soldier or nation to bring force to bear effectively on another and those seeking to weaken that ability.
The range of interests in play was rarely this simple in fact, of course. For example, on any one “side” of a war there are usually interests pressing for a more and less restricted use of force: humanitarians and military professionals. Yet it often turns out that military professionals can be found arguing for restraint and humanitarians for more vigorous applications of force, for a whole range of reasons relating to the specific conflict and their broader objectives. Sometimes it turns out that military professionals or humanitarians on one side arguing for more – or less – vigorous applications of force actually end up undermining that side’s position vis-à-vis the enemy. Argument about whether and when that happened is all part of how people on all sides of a conflict routinely struggle over what levels of force to permit or encourage. To understand the distribution of power and the impact of changes in the normative framework on the conduct of war, it is useful, at least conceptually, to reduce this complexity to a binary opposition between those supporting and those opposing the war effort. Doing so foregrounds a crucial distributional axis: us and the enemy. Whether you are a humanitarian or a military professional, whether you argue for more or less robust use of force, the strategic question is whether your position, if adopted, will strengthen or weaken our team or theirs.
A distributional analysis of global governance struggles also benefits from this kind of reframing as a series of shifting and diverse binary alternatives. One can then ask who wins and who loses, assess the background institutional arrangements and entitlements which permitted or encouraged this result, and see how those gains or losses affect the next round in the struggle. Although commercial and political actors routinely make this kind of assessment, it is less common in academic literature. On the economic side, it is more common to stress the extent to which growth in a global value chain is not a zero sum game, but, like gains from trade, benefits everyone, and to search for the institutional conditions which maximize those gains, however distributed. On the political side, people writing about global governance or policy are prone to stressing the opportunities for “win-win” solutions which address “global problems” and strengthen the “international community” as a whole regardless of how those winnings are distributed or whether the costs of global problems themselves fall equally on differently situated nations or interests. This is certainly an understandable tendency. It encourages the effort to identify and construct the global economic and political systems most conducive to win-win solutions and efficient wealth maximizing economic activity. We yearn for such a world precisely because it seems unproblematic that it will be in everyone’s interest. Unfortunately, the world rarely distributes gains so evenly. To understand the outcomes of global struggles – as well as the motives and strategy for engaging in them in the first place – requires a focus on winners and losers of even the most noble projects.
Distributional bundling: the emergence of centers and peripheries
To speak more generally about the structure of the terrain and the process by which distributions are reproduced, it is helpful to assess how binary allocations of gains and losses bunch together over time to create “centers” and “peripheries.” The distribution of resources and authority between centers and peripheries in a given period affects the outcomes of specific struggles. The outcome of bargains over the distribution of gains in a global value chain for pharmaceuticals or automobiles or light bulbs is situated in the context of other value chains and other social and political relationships which may reinforce or undercut their more local powers. Suppliers distributed over the “periphery” of the global productive system may lack the knowledge, confidence or experience to utilize the bargaining power they have. Political and economic actors at the “center” of the global order may be treated as having more bargaining power than their stock of entitlements and authorities would support were they put to the test. Seen dynamically, gains at the center may be more likely to be self-reinforcing than gains at the periphery. The overall terrain for global governance struggle is as much a function of the norms and practices which consolidate and influence relations between centers and peripheries as it is those which distribute within a specific value chain or allocate powers in a given bargain or arena of struggle.
The analysis of “center-periphery dynamics” has served as the portal to a variety of different political and intellectual projects over the last half century. A brief list would include:

  • A project in development economics to foreground the potential for national (or international) economic management to staunch the effects of inter-regional or inter-national dependency and the “development of underdevelopment” as scholars termed it.

  • A project in international politics or international relations to comprehend the dynamics of “neo-colonial” arrangements limiting the self-determination of newly and nominally “independent” nations.

  • A political project in cultural psychology to understand the dynamics of assimilation, self-marginalization and rage in the periphery and complacency at the center of what scholars called the “world system.”

  • A project of historical recovery to trace the impact of the colonial legacy in liberal internationalism and to de-center the European and North Atlantic traditions in the discipline of international law

Attention to center-periphery relations opens a window onto the structures of power and hierarchy in a larger system and onto the continuation of war in times of peace through the dynamics of domination and reciprocal influence among unequal actors in such a system.

At first, it may seem that center-periphery analytics would have little to offer the study of global governance today. For an analysis of center-periphery dynamics to be useful, it has seemed necessary to identify a “center” and a “periphery” of something: a field, a geography, a history, or a system within which something is the center and something else is the periphery. This field provides the coherence, holding the center and periphery in a relationship. This is precisely what seems absent in our contemporary global situation. There is chaotic struggle, but we are unsure whether there is a constituted system or order.

For almost a century, scholars have disputed the idea that there is a coherent international “system.” Political scientists have stressed the multiplicity and heterogeneity of political life across diverse institutional and cultural forms, and the replacement of a systematic high politics by a communicative process embedded in an unpredictable and chaotic social field. International lawyers have long sought to replace the international political system (of, say, “balance of power”) with a legal order. They have tried to get there by reimagining international politics and law, breaking them down into functional pieces, placing them in an ongoing and diffuse process of argument and collective legitimation, dispersing them across myriad actors, stakeholders, participants in an international legal/political process, and embracing a comprehensive legal pluralism. The focus on legal pluralism, fragmentation and the dispersion of politics throughout social and institutional life has undermined the aspiration for coherence, as if the political system could be legalized only at the expense of systematicity and orderliness.

The result is a default image of an open-ended international competition among interests accompanied by a vague but optimistic sense that the outcomes of open competition are generally welfare maximizing while “systems” tend toward authoritarianism. This legacy makes a dynamic interpretation of global center-periphery dynamics difficult precisely because it seems a step back to the more primitive idea that there is an international system. The loss of confidence in global systematicity accompanied a more technocratic idea about rulership. Ruling today is not about grasping the controlling levers of a system or exercising what Weber famously called the vocation of politics.1 Rulers occupy functional roles, have delegated competences, deploy technical tools to address concrete problems, have become experts, spoken by their expertise. They operate in a context, but they neither serve nor are they constrained by a larger system.

This is another way of saying that no one carries a brief for the global public good. Rulers today are not “sovereigns” looking down on a society they govern, but people looking out at other actors in relation to whom they pursue projects. Or, perhaps better, all those who pursue projects participate in rulership. Precisely because no one holds the exclusive brief to speak for the global public interest, it is hard not to hear those who say they do as at least also advancing their own projects. When people do speak in the name of the global interest, moreover, their framework today is problem solving, whether in small steps or bold gestures. Their professional vernaculars encourage the belief their individual projects are also inching toward a fantasy global order, adding one brick to an international Potemkin village of functional equivalents for ideal-typical national political arrangements. Out there, vaguely surrounding their activity, are various constitutional arrangements, institutional settlements, political expectations, economic forces, cultural fashions – their technocratic world drifts in a haze of system fragments.

Attention to center-periphery dynamics in this fragmented fog is a way of reawakening attention to large scale patterns by focusing on conflict, domination and hierarchy. The idea is not to revive the idea of a constituted legal order or political system but to identify a kind of permanently floating dynamic of centers and peripheries. Center/periphery analytics assign positions to things “within” a “field,” tracing the interactions, conflicts and hierarchies among them. The field is not a fact in the world, held together by a constitution spelling out actors and structures, but an interpretation, a story about the way things bunch together in uneven patterns and affect one another over time. As elements in an interpretive story, the metaphor of “center” and “periphery” can refer to just about anything: ideas, firms, sectors, regions, nations, groups. The point is an asymmetric or hierarchical relationship that can be spatial, temporal, or just a matter of mental emphasis. The periphery can be “far away” from the center, “more backward than” or “historically prior to” the center, or simply less significant, less a matter of focus and attention than the center.

Having identified an asymmetric relationship between a center and a periphery, it is tempting to jump to the conclusion that the center has agency, is favored by the structure, and does bad things to the periphery. Although relations between centers and peripheries sometimes unfold in ways which impoverish or oppress peripheries, sometimes they do not. Some peripheries are lifted up by the association. Sometimes their relative positions are a function of something else entirely – some other system or interest or force that keeps them in such a relationship. It is one thing to assert that there is a relationship and quite another to explain how it works.

Gunnar Myrdal’s loose analytic framework for thinking about economic and social dynamics is useful here.2 If we start with the identification of an economic dualism – the city and the countryside, the wealthy north and the poorer south, the inner city and the suburbs, the industrial and agricultural sectors – it is hard to know just what will happen. Certainly good things in one can wreck havoc on the other. A wealthy region can draw investment, people and energy toward it, making it ever more difficult for a poorer region to move ahead. But wealth in one region can also stimulate growth elsewhere. The point is that bad – or good – things in either the center or the periphery can have a positive or a negative effect on the other. It all depends. Depends on all kinds of things – from attitudes and institutions to politics. Myrdal orients the analysis to identifying the linkages, understanding the dynamics of positive and negative effects, vicious and virtuous cycles, relatively stable equilibria and tipping points through which good or bad things in one have an effect in the other. His method is less an analytic than a list: a check-list of salutary and perverse effects that can arise between a center and a periphery and an evocation of the vicious and virtuous cycles that can then unfold.

The dynamic dimension is crucial. When things work well, an equilibrium disrupting increase in wealth in one place can stimulate growth elsewhere. When they do not, inequalities and hierarchies may reproduce themselves or become worse. Good intentions have unanticipated bad consequences, surprising feedback loops arise, secondary effects set in, and soon we’re in a vicious spiral. Virtues spawn vices. Which way things will go – or whether they will move at all in relationship to one another – depends on the linkages. The focus is mid-level social formations. On the macro side, there is dualism – two sub-systems sufficiently differentiated from one another to operate somewhat independently. And there are linkages – sinews of interaction which can strengthen and weaken. Along these linkages, actors pursue projects, bargain and battle, struggle for gains, in ways whose dynamics and outcomes we can analyze.

Legal rules and institutions are sinews of connection and distribution. Attention to law can clarify how centers and peripheries come to be differentiated and the micro-processes through which dynamics between them get underway. Legal entitlements constitute actors, allocate opportunities for gain, and establish patterns of bargaining power in these mid-level relationships of differentiation and influence. Legal entitlements are, broadly speaking, the glue that distributes. Doctrinal and institutional arrangements encourage the accumulation of gains and can serve to reinforce the asymmetry.

Tracing the effects of these allocations shifts our focus away from models of power which focus on agents acting in structures and causing effects. The point is not to understand what the center has done to the periphery. Center and periphery are relative positions in a field which emerge as people pursue their interests in the shadow of an arrangement of norms, expectations and institutional arrangements what are enforced in some way by violence or habit, shame or charisma. The power that drives the whole thing, if we can speak of power in that way, runs orthogonal to the field. Its effects are felt as people do things in the shadow of the ideas, entitlements, expectations and authorities which make up the terrain on which they bargain and struggle. It would be difficult to say whether the “agents” or “actors” were the people, the arrangements, the field as a whole, or the weight which centrality or peripherality places on their interactions over time. We could say that the arrangements of norms and expectations form the “structure” within which people act, just as we could treat the distribution of their actors and objectives as the structure through which the norms and arrangements make themselves felt.

It might be most useful to say that power rests with the system of entitlements and expectations that link people in relationships of relative privilege and vulnerability, with the habits of society, with the ideas, aims and identities of the participants themselves, and with the objectives and enforcement authority of the state. As people act in the shadow of these authorities and constraints, the complex reciprocal relations between centers and peripheries unfold. The disorderly pluralism and fragmentation of global social, economic and political life has not eliminated the potential for dualism, for linkages, for spillovers, for the struggle over gains the reinforcement of bargaining power, or for the emergence of vicious and virtuous cycles. Small rules and good intentions can generate entitlements that reproduce or ameliorate social inequalities as they radiate out through a system structured by center-periphery asymmetries. These are things which might be changed.

Although Myrdal developed his method to describe linkages among economies, it is easy to see that such an approach may also shed light on asymmetric relations in the worlds identified as cultural or political. Actors struggle globally in those fields as well and do so in the shadow of complex background patterns of expectation and entitlement. The political authority we call “leverage” is a condensation of moves made possible by a context of expectation and entitlement. Public and private law distribute political and cultural authority by authorizing these moves and reinforcing these expectations. The relative prestige of ideas and cultural forms, like the “legitimacy” of political or even military initiatives is not something that inheres in them as ideas or initiatives. In the same way that economic value and productivity are the outcomes of bargaining and allocative struggle among people within and without the production chain, prestige and legitimacy are the social effect of the mobilization of authority by actors in a context. Prestige and legitimacy are allocated through a kind of economy in which actors accumulate and spend the good regard of others. Good regard is not associated with military might or wealth in a straightforward way. They also float free of those anchors and are distributed through other channels. Indeed, resistant and reform forces are often able to accumulate good regard and may be able to commit atrocities without spending that regard precisely because they are perceived to be oppositional to dominant military, political or economic force.

In a world governed by the ideas as well as the practices of experts, the relative authority and reciprocal influence of big ideas, professional disciplines and fields of expertise are also a matter of struggle against the background of expectations, norms and institutional frameworks which open avenues of influence and attribute the prestige of dominance or heterodoxy. In the field of development policy, for example, economics has been in the driver’s seat for more than fifty years compared to law or other social sciences. The dynamics of the relationship between economics and law in the expertise of development policy makers has some of the characteristics of a center and a periphery. In repeated waves, an increasingly robust economic model has come to dominate the field, exogenizing law, governance and much else, only to find itself chastened by an inability to translate its analytics successfully into policy. At such points, economics has reached out wildly to law, institutions and governance, endogenizing one after another aspect of social and political life. In both directions, development economics has overshot the mark – exogenizing law and governance in the name of robust analytics to the point of abstract sterility, only to endogenize law and institutions so indiscriminately that a general call for “good law,” “strong entitlements” and “human rights” stifles the ability to make choices and establish priorities.

Such patterns of interaction between disciplines are not only the unfolding of a logic, a pendulum between robust exogenizing models and context specific embrace of institutions. Relations between more or less dominant professional disciplines are also matters of reciprocal influence and competition. It should be possible to identify the norms or entitlements which structure the relationship between economic common sense (a disciplinary “center”) and common sense about law, governance and institutions, which has always been more peripheral to development policy. Some of this may be a function of institutional authority, professional resources and prestige and the intellectual path dependence of policy elites. Some may be a matter of the relationship between these professional commitments and other ideas. It may be, for example, that a shared commitment to the instrumental nature of law might distribute authority asymmetrically between economic ends and legal means. A commitment by both disciplines to avoid seeing legal arrangements as a terrain for political contestation and choice may have kept law peripheral even when economists embrace good governance, formal property entitlements or human rights as the very definition of development. Needless to say, these remain hypotheses. The knowledge practices of experts may also be understood as occurring on a terrain of struggle with winners and losers which bundle as centers and peripheries in a field, relations between them driven by professional ambitions, desires to affiliate and disaffiliate, dominate and submit, and structured by status hierarchies, institutional arrangements and habits of reciprocal persuasiveness or impenetrability that function in ways analogous to the role of entitlements shaping bargaining powers in the political and economic life.

The centers and peripheries of economic, political, legal or cultural systems may themselves be symbolic or allegorical. As such, they need to be inhabited or performed. You are the hegemon if they say you are – just as you may find yourself a terrorist if they say you are. Just as you may find yourself treated as a hegemon or terrorist, producing the effects we associate with hegemony or terrorism within some field, by announcing yourself as such. The impact of such a performance or ascription will not be certain. We might think of domination or hegemony as a performance or assertion of centrality -- or an ascription of peripherality -- which gives rise, in a significant audience, to the effect of centrality or peripherality. Prestige or legitimacy might be the word we use to describe the effective assertion or ascription of a central position within a field.

In law, it has become routine to assess assertions of jurisdiction for their effectiveness. The extraterritorial effect of national jurisdiction is a function of a willingness to assert it and the ability to generate cooperation or acquiescence in its exercise. International lawyers are accustomed to speaking about the authority of norms as a matter of their persuasive effect, the legality of political activity as a function of the legitimacy with which it is viewed by the international community, its legitimacy a function, in turn, of its perceived legality. It is odd that this way of imagining legal powers and obligations has so rarely given rise to analyses of the relative persuasiveness or legitimacy of performances from divergent quarters or of the distribution of entitlement or authority to generate legitimacy effects. Yet it seems undeniable that legitimacy and persuasiveness can be both cause and effect of being the center.

When the United States makes an assertion to its European allies that the power it wields in one or another disputed context is the exercise of (legal) right, what is at stake is not only the one-off legitimacy of the act or persuasiveness of the claim, but also the relative position of European and American authorities in a norm-drenched political system. Who is able to declare the “right.” To say that international law is a “game of the middle powers” is to say that European nations more readily find themselves occupying the symbolic center of the global legal order than of the global military or even economic system. Their normative assertions persuade, their action – or inaction – seems legitimate. When the United States asserts that something is required by national security, they are placing it on a terrain in which they are accustomed to deference from European allies as the center. Disputes among the North Atlantic powers about economic or regulatory power seem to be undertaken on a terrain of greater equivalence. Whether regulating the internet is an exercise of sovereign right, a matter of national security or of economic policy affects the distribution of powers between Europe and the United States as to its resolution. Were international lawyers to map the institutional arrangements, norms and practices which distributed power in this way, comparative legal scholars might contribute to our understanding of the asymmetric relationships among ideas associated with national traditions by analyzing interactions between the legal ideas and institutions of legal cultures in centers and peripheries and the role of legal similarities, differences and influences in reproducing or contesting relations between political and economic centers and peripheries.

International law and distribution

It is surprising how rarely international law scholars focus on the distributive impact of local, national and international legal rules in the global economy, compared to the enormous energy devoted to the quixotic effort to explain how it all may one day add up to a coherent, constituted legal order. Part of the explanation is the conviction that political economy issues lie outside international law’s mandate. Economics is for economists and politics is precisely what one hopes to beat into the ploughshares of legal order. Part lies in the background idea that international law is unlikely to shed much light on political economy questions which can best be answered by large scale narratives of historical necessity – the nature of capitalism --- or by ethnographies and micro-sociological study of the impact of globalization on very particular communities and transactions.

More crucially, perhaps, international lawyers and scholars have been more interested in whether international law exists, binds sovereigns and adds up to a workable legal order which can regulate in the top-down style we associate with national governments than in questions of distribution. Scholars assess norms in accordance with their normative origin or “source,” the strength of their binding authority and the subject matter area they purport to regulate – international environmental law, human rights law, the law of war – rather than by their distributive impact. This narrows the range of norms and institutions which seem relevant to the “international legal order” and turns the gaze of those who study what remains away from consideration of their distributive impact and their role in structuring the dynamics of global political economy.

A distributive map of global powers and the background conditions for struggle would align more readily with the perspectives and assessments of actors themselves. At the global level, few today have much faith in the potential for a global public policy hand able to manage these forces from the perspective of global welfare. The question for people interested in global policy is not whether the “international community” can generate and enforce universal norms in the global public interest. The policy questions are more specific: what can we do to promote things we value and impede those who would undermine them? For environmental policy, who can do what to reduce the gains available for those disposed to soil the environment? How can their privilege to do so be restricted? How can interests associated with preservation garner the authority of a center in their negotiation with individual political and economic actors who oppose them? This has very little to do with whether the international community has built a coherent global regulatory order. In any event, the answer to that question is no, and to wait for it is to defer indefinitely an effort to protect the environment from those who would despoil it and who have the entitlements to succeed. What is needed is a map of powers and vulnerabilities and points of leverage. What norms, practices and expectations permit and reinforce their allocation? What levers are at the disposal of actors with alternative agendas? An atlas of the terrain on which win/lose struggles occur and congeal into patterns of dominance is a far more useful tool for people engaged in struggle than a fantasy architecture for an imaginary global ordering hand.

In the commercial and political worlds, people are more concretely attuned to gains and losses. They realize that even in win-win situations, some will be left out and winnings may be distributed quite inequitably. Lawyers who advise corporations engaged in transnational economic activity routinely canvass the legal universe to determine which legal rules, legal authorities or enforcement mechanisms may affect their client’s business strategy. They look out at the world horizontally, asking who might have both an interest and a possibility to affect the distribution of gains and losses from a proposed transaction or business initiative.

International lawyers and legal scholars could proceed in a similar way, assessing the range of norms, institutions, practices and understandings which have the potential to influence international economic, political or cultural initiatives. To do so, they would need to radically enlarge their aperture to consider arrangements whose normative impact is of international significance even where they are not included in a textbook definition of “international law” and make no contribution to a global order among and above sovereign states. They would need to set aside their preoccupation with assessing and promoting the progressive development of a constituted global legal order. The more important question would become the functions of a permanently incomplete system in the allocation of powers and the distribution of gains.

Sustained attention to the practices and structures which distribute and to the ways in which winner and losers become aggregated into centers and peripheries across the world’s economic, political and cultural systems would sharply improve our maps of global power. Such a map would implicate international law in rulership. International law conventionally understands itself to be the (still imperfect) law of a future world order, the gentle voice crying out in the wilderness, naming and shaming from the sidelines, at best a handmaiden to the rulership of states. To understand law as the glue linking leading and lagging ideas, regions, or economic sectors to one another and as the cloak hiding asymmetric dynamics of power in political economy of the world would change the picture. We would understand international law as the language, stakes and structure for struggle among unequal powers, implicated in patterns of inequality and violence and in the allocation of political and economic gains and losses.

Public international law plays a powerful distributive role as a normative vocabulary allocating entitlements among actors in their governance struggles. The most important international legal norms are procedural, constituting actors, allocating privileges and powers, and providing a vernacular for struggle. Scholars have puzzled over whether the commercial arbitration regime reinforces the centrality of the north, the private, the economic vis a vis a periphery of the south, the public, the political. On first glance, it is hard to say. The regime looks evenly balanced. States – like companies – sign up. The regime itself could hardly be more dispersed or ad hoc. The developed world is learning that its own regulatory regimes may yet come to be as vulnerable to attack by trading partners as those of the emerging markets whose policy space was meant to be constrained by the discipline of bilateral investment treaties. And yet, somehow commercial arbitration seems to have become an adjudicator of last resort for reviewing the legislative, administrative and even judicial decisions of the developing world. Commercial and financial imbalances translate into political restraint. If is difficult to imagine third world investors using arbitration to contest – and successfully stay – the implementation of a U.S. Supreme Court decision as happened to Ecuador in the Chevron case. Nevertheless, the legal, professional, ideological, commercial or political sinews that reproduce this imbalance remain obscure. The answer will be fine-grain, even if the outcomes are stark.

The hierarchies and power dynamics of contemporary life are routinely overlooked and denied by the sensibilities, belief systems and practices of expert professions. International law is not different in this respect. International law has also been the vernacular and institutional setting within which political and intellectual actors at the center and the periphery of the world have struggled with one another.3 A map of the role played by law in center/periphery dynamics can also help bring the profession to account for its complacency about the hierarchies it participates in maintaining. It would not, of course, have been a particularly trenchant critique of those who built the colonial system to demonstrate that it spawned hierarchies between centers and peripheries – that was the whole point of the operation. Exposure of a dynamic inequality between the imperial center and the colonial periphery might have scandalized someone who believed it was all done from noblesse oblige for humanitarian and religious reasons, but even they probably understood what was going on --- that was precisely why their own good ministrations were needed. Where the presence of humanitarian actors and a religious justification can be shown to have been a link in the dynamic inequality between the center and the colonial periphery, you have a scandal whose articulation may shift power away from those actors.

Recent work on European law has harnessed center/periphery analytics to criticize the dominant professional consciousness of European law professionals in this sense. For professional Europeanists, it is not scandalous to hear that despite the “single market,” European national economies and regions remain unequal and distinct. They know that. The whole point of extending the four economic freedoms – and of the “cohesion” and “structural” fund transfer payment systems – is to ensure that through integration economic growth is possible throughout the Union. The EU project is all about linking centers and peripheries to equalize and grow.

It does pose a critical challenge to the European law field to show that general legal principles – like “free movement” or “social considerations” – at the core of the endeavor are applied in ways which heighten the inequality between the economies of the European center and periphery.4 The devil here is in the details – in the precise ways that universal principles turn out to have diverse meanings and get applied in ways that contribute to dualism. Or in the specific ways a universal program designed to equalize relations across the EU turns out to accentuate the distance between the center and periphery. For example, if the structural and cohesion funds effected a net transfer from a periphery to a center, or if general policies adopted in the name of “democratization,” “rule of law,” or “economic development” aiming to bring the periphery into harmony with the center had the effect, at the periphery, of undermining parliamentary democracy, encouraging de-industrialization, strengthening the security state, and the like, there would be a scandal.5 In each of these cases, the villain is not the center – it is the glue of entitlement that sets up an asymmetric and disempowering dynamic and the cloak of self-narration that covers it up.

International law also governs when its distinctive picture of the world sinks into the background consciousness of actors in global struggle. The idea, for example, that international politics is somehow prior to and more real than the artificial net of international rules places creatures of those rules in a subordinate position to “real” states has a bearing on the way relations between “real” states like Israel and artificial “entities” like the Palestinian National Authority become asymmetric. The idea that religion is part of the pre-history of international law which arose with the 1648 domestication of religious confession below the water line of sovereignty helps consign religious ideas and institutions to the margins of international politics, just as international law’s exclusion of both the commercial world of the market and the private world of the family from the international plane distributes power over families to states while disempowering states relative to the global economy. These ideas generate narratives and institutions and expectations which shift the powers and status of people inhabiting these identities to the periphery. And all the while international law speaks the language of universals, embracing and arrogating to itself the universal ethics of human rights, the criminal power to tell right from wrong, the savvy political calculation by which necessity and proportionality are measured out in war. In doing so, it has also become a cloak covering the distributive practices it authorizes and accepts.

International legal scholars could do more to understand how this generates asymmetries – between religious and secular, or between the reality of politics and the artificialities of law. International law is part of the field, the terrain, the language, the structure, through which asymmetries between secular ethics and religious confession, or the diplomatic world of international relations and the economic world of private markets, arise and are reinforced. It provides the normative fabric, the marker of status, the purveyor of entitlement through which the routine operations of people pursuing politics and economics, ethics and religion, generate asymmetry and hierarchy. The point is less that international law exercises power as the center than that it makes itself available as a lexicon of entitlement in a field characterized by dynamic asymmetry.

In some ways, this reorientation of the discipline should come naturally. Twentieth century international law was an active player in refiguring world order as an open and shifting process whose “governance” was more a functional reinterpretation of things dispersed across the institutional and political life of the planet than the work of agents empowered by structures. In its own imaginary – and in life -- international law no longer sits “on top,” governing the relations between states. It prides itself on having become diffused through the global political process as a vernacular of legitimacy, as a horizontal theater of argument, performance, claims and assertions. An embrace of the dispersed theatrics of global power has been a hard won victory in the international legal field. To focus on international law’s role in the reproduction of hierarchies of center and periphery in the world, international lawyers need not turn back from these discoveries. It only remains to develop a center-periphery analytics rooted in the dispersed powers of social and expectation which already animate the field’s concern with legitimacy and persuasion.

Were international law able to make the transition from preoccupation with system coherence to distributive inequality and struggle, the field would have much to contribute to remaking global political economy. Instead, the field has doubled down on the institutional arrangements of a horizontal global economy and a vertical politics. Although it is neither possible nor desireable to perfect a global governance structure on the foundation and in the image of national sovereignty, the field persists in the attempt, the ever-receding promise of global governance legitimating whatever damage may meanwhile be done in its name. Nor is it possible for a global economy liberated from political contestation to revise the background norms and institutions on which it rests so as to alter the patterns of inequality it generates, yet the disciplines of law and policy persist in the promise that it might. Only direct engagement with struggles over distribution and the inequalities they generate will sharpen the tools necessary to change the outcomes of those struggles and reverse the cycles of domination through which the majority of the world’s population in every country has become peripheral to the accumulation of global wealth and power. In the next chapter, I explore how it has been so difficult for international law to take up this challenge.

1 Max Weber, “Politics as a Vocation," Essays in Sociology, H.H. Garth and C. Wright Mills eds., 26-45. New York: Macmillian, 1946.

2 See for example, Gunnar Myrdal, An Approach to the Asian Drama: Methodological and Theoretical Selections from Asian Drama: An Inquiry into the Poverty of Nations, “Appendix 2: The Mechanism of Underdevelopment and Development and a Sketch of an Elementary Theory of Planning for Development” ” (Vintage Books, Random House, New York, 1970 at 207-304.)

3 See, Arnulf Becker, Mestizo International Law: A Global Intellectual History, 1850-1950, (Forthcoming, Cambridge University Press, 2014)

4 Damjan Kukovec’s ongoing doctoral work argues precisely this. See: Damjan Kukovec, "Whose Social Europe?", talk delivered at Harvard Law School (April 16, 2010), available at http://www.harvardiglp.org/new-thinking-new-writing/whose-social-europe-the-lavalviking-judements-and-the-prosperity-gap/; Damjan Kukovec, "A Critique of the Rhetoric of Common Interest in the EU Legal Discourse", talk delivered at Harvard Law School (April 13. 2012), available at http://www.harvardiglp.org/new-thinking-new-writing/a-critique-of-rhetoric/; and Damjan Kukovec, "A Critique of the Rhetoric of Common Interest in the EU Legal Discourse", SJD dissertation, Harvard Law School, forthcoming.

5 Ermal Frasheri makes this point in “Transformation and Social Change: Legal Reform in the Modernization Process,” Nellco Legal Scholarship Repository, 9-5-2008; and in his ongoing doctoral work: “Of Knights and Squires: European Union and the Modernization of Albania” SJD Dissertation, Harvard Law School, forthcoming.

Download 75.27 Kb.

Share with your friends:

The database is protected by copyright ©essaydocs.org 2022
send message

    Main page