Why trade law needs a theory of justice.

Author:Garcia, Frank J.
Position:Includes remarks by Christian Barry and Susan Esserman - Just Trade Under Law: Do We Need a Theory of Justice for International Trade Relations? - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law
  1. DOES TRADE LAW NEED A THEORY OF JUSTICE?

    I'd like to begin by noting what today's question itself might imply. It may suggest to some that trade law does not already have a theory of justice, and to others perhaps even that it does not need one. Both implications would be mistaken. In my remarks I would like to make four points: first, that trade law necessarily involves theories of justice; second, that while the notion of trade and justice can raise several objections, these objections can be answered; third, that contemporary trade discourse reveals that in fact we already have a dominant theory of trade justice, utilitarianism, which needs to be "outed" as such and seriously re-examined; and finally, to illustrate the kind of work that is going on, and needs to go on, if we are going to take justice seriously in trade law. (1)

    Let me take a first casual pass at our question by juxtaposing a different one: does our federal income tax law or health care delivery system need a theory of justice? To this question we generally answer yes. Our income tax and health care systems are both fundamental social institutions involving significant resources, and both systems involve decisions about how those resources are allocated. In such cases we intuitively want to know if those decisions are fair.

    Theories of justice play an essential role in answering that question. Tax law and health care are two areas in which academics and policy makers routinely refer to principles of justice in working out their intuitions about fairness, and in analyzing, criticizing, and proposing reforms for these institutions.

    In a similar sense, I think we would be inclined to say that trade law also needs a theory of justice. The international trade law system (for example, the WTO) involves significant resources, and decisions about how those resources are allocated. So, as with tax law or health care policy, we intuitively want to know, is it fair?

    However, to go beyond this immediate intuitive level and answer in a more rigorous way, we need to consider a few elements of political theory: what does justice involve? What does a theory of justice do? One way to understand the idea of justice is as "right order." Through their decisions, social institutions produce some kind of social order, and we have many tools and disciplines with which to evaluate this order. The task of justice, in particular, is to ask whether these social decisions and institutional outcomes are "right" and consistent with a community's core values.

    How do we know if the inquiry of justice is relevant to a given situation? One way is to look at whether the situation involves public decision making about social goods. When people use social institutions to make decisions allocating social goods, this is the domain of justice. The decisions which these institutions make, and their method of decision making, are evaluated according to principles of justice.

    Trade law is one such social system, part of what Rawls calls the "basic structure"--that set of major institutions, including economic arrangements, which together distribute fundamental rights and duties and determine the division of the advantages from social cooperation. If we think about the scope of WTO law, for example, we can see that trade law involves numerous decisions allocating social goods such as wealth, economic opportunity, trade-related knowledge, preferences, market access, etc.

    To say that trade law does not need a theory of justice suggests that we need not consider the normative implications of this allocative system, that the question of fairness is irrelevant. We don't say that about any other social institution--why would we say that about trade law?

  2. OBJECTIONS TO THE APPLICATION OF THEORIES OF JUSTICE TO TRADE LAW

    There are several kinds of objections one can make to the idea of justice as applied to international institutions. To begin with, one can assert on a variety of grounds that global institutions lack the necessary underlying social predicate for the application of justice. If you are a realist or Hobbesian, for example, you can object that there is no international society that makes justice a coherent concept. Similarly, if you are a contractarian, you can object that there is no global social contract to make global justice binding. If you are a communitarian, you can object that there is no global community of the sort necessary to support obligations of justice. If you are a relativist, you can object that there is no global normative consensus giving rise to truly transnational norms of justice.

    In my view, the first three objections share two common traits: first, they assume or assert that the social basis for global justice will be the same as the social basis for domestic justice. I am not sure this is correct, and it certainly needs to be argued. For example, taking the contractarian objection, it may be that for global justice we do not need a full-blown social contract on the domestic model. If there is enough cooperation to create new burdens and new wealth, and there is a need to decide how to allocate these burdens and this wealth, then this may well be enough for justice to apply, at least minimally.

    Second, all three fail to take fully into account the effects of globalization. While the communitarian objection, for example, raises important theoretical questions about the nature and possibility of global justice, the world has changed while the debate continues. Within these space constraints I can suggest, but not argue, (2) that trade and globalization are changing the nature of global social relations such that the whole question of political community is transformed. The paradigm political community of justice--the nation-state--is no longer self-sufficient; its wealth distributions are fundamentally conditioned by transnational and global institutions. This means that even "domestic" justice cannot be fully understood without reference to global institutions, creating what might be called "limited community"-for example, in the global economy--and necessitating at least a limited theory of global economic justice.

    Turning to the fourth, relativist, objection that, given the lack of global normative consensus, it is impossible to arrive at a shared/non-hegemonic theory of justice, I would offer two points. First, many scholars, including our panel chair Joost Pauwelyn, think international human rights law offers the soundest basis for a global theory of justice precisely because it offers a positive normative consensus. (3) Second, even if you disagree with this view, and object to the whole enterprise on relativist grounds, it must still be admitted that we are required to apply our own theories of justice to our own policies and their effects on global trade. Relativism does not excuse us from our own moral obligations. (4)

    Finally, there is another type of objection, which can be called the "egoist" objection, in which one may simply refuse to look at trade through the lens of justice, because one is currently in the winner's position. This objection is closely linked to my third overall point, namely that there is in fact a dominant theory of justice in contemporary trade discourse, and it is utilitarianism.

    Any account of trade law that is not purely descriptive already presupposes a theory of justice, even if it is never made explicit. As Joost Pauwelyn points out in his introductory remarks, if we look normatively at contemporary trade discourse, we see that in fact it already presupposes or embodies a theory of justice, namely utilitarianism. In its economic version, utilitarianism tells us that trade policy should be judged by its effects on efficiency and aggregate welfare. This is definitely a theory of justice, not no theory of justice; it is a view on the question of what qualifies as right order, and instructs social institutions how to make allocative decisions.

    So in an important sense, the question is not "does trade law need a theory of justice?" but "why do we so often avoid discussing the question of trade and justice, and avoid making explicit the theory of justice already at work in trade discourse?" This gets back to the egoist objection. When looked at...

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