https://newleftreview.org/issues/ii154/articles/the-laws-that-rule-us

La loi ne naît pas de la nature . . . la loi naît des batailles réelles, des victoires, des massacres, des conquêtes qui ont leur date et leur héros d’horreur: la loi naît des villes incendiées, des terres ravagées; elle naît avec les fameux innocents qui agonisent dans le jour qui se lève.
—Michel Foucault, ‘Il faut défendre la société’footnote1

In his critical analysis of the ‘standard of civilization’, Perry Anderson described modern international law as an instrument of Western hegemony, and especially, since 1945, of American hegemony over the rest of the world.footnote2 The fine formula of ‘sovereign equality’ in Article 2(1) of the un Charter hides an utterly hierarchical world, Anderson argued. He noted the way classical jurists such as Hugo Grotius and Emer de Vattel had used the notion of ‘civilization’ to draw a ‘normative dividing line between Europe and the rest of the world’ to justify Europe’s imperial expansion and Great Power primacy. Although the vocabulary of ‘civilization’ has, since the 19th century, given way to ‘modernization’ and ‘development’, the official system of international law still distributes prerogatives and vulnerabilities across the world in a profoundly unequal manner.

Anderson followed Carl Schmitt in regarding the international law that came into being after 1918 as ‘fundamentally discriminatory’, shaped and manipulated by the liberal powers who dominated the system. The ‘impartial rule of law’ purportedly upheld by the League of Nations was ‘invariably indeterminate’, answering to the requirements of the victors of the War, as in the open-ended reparations imposed on Germany at Versailles. Although the Second World War destroyed the primacy of Europe, this basic ‘principle of hierarchy’ has continued in the postwar era of American hegemony. Notwithstanding its institutional flourishing since 1945—the United Nations Charter, the International Court of Justice, an expanding legal profession and academic discipline—‘on any realistic assessment’, Anderson argued, ‘international law is neither truthfully international nor genuinely law’. Its content is dictated by the world’s most powerful states and there is no ‘sovereign authority capable of enforcing it on penalty of infraction’—in the absence of which, it ‘ceases to be law and becomes no more than opinion’.

Yet despite its toothless and prejudicial character, international law, Anderson noted, is a major ‘ideological force in the world’, its rules set and bent or broken according to Euro-American whim. Whenever international law has been invoked to feebly contest the actions of Western powers, the absence of a credible system of sanctions has invariably forced it to yield. Anderson cited the cases of Suez in 1956, Vietnam in the 1960s and 70s and the many proxy wars carried out by the us and its Cold War rivals in the developing world. Instances of the us’s ‘systematic violation’ of international law include the nato bombing of Belgrade in 1999 and the us-led attack on Iraq in 2003. Even when supposedly critical of such action, international law has been reduced to ‘a nominal aspiration’ that ‘does not even pretend to have any force of execution behind it in the real world’.

Although I agree with much of this assessment, here I want to engage with a certain myopia in Anderson’s account, one common to left critiques. Anderson focuses on a specifically European concept of public international law—law as it appears in the activities of the un Security Council, the International Court of Justice and the International Criminal Court, as well as in the arguments that parties to military conflict routinely deploy against each other. It is a criminal law-oriented concept that thinks in terms of crime and punishment and is built upon an analogy with domestic law forged by interwar legal formalists, which casts states as ‘legal subjects’ in a global political society akin to a national one. In this conception, treaty-making and international institutions appear as functional equivalents of domestic legislation and administration, while international courts and tribunals fulfil the roles of adjudication that a country’s courts accomplish at home.

This conception of international law colonized the imaginations of successive generations of jurists and liberal political thinkers through to the 1970s and 80s, but it was never very cogent, and international law in this sense—public, ‘diplomats’ law’—has since been widely criticized within the legal academy. An expanding group of Third World lawyers have systematically condemned international law’s servility to empires past and present. Various feminist, postmodern and Marxist currents have taken it to task for its implication in an unjust global order.footnote3 But the left is not alone in attacking international law in Anderson’s sense. Today, the far right, especially the maga movement and the us government, are launching an assault on international rules and institutions. The second Trump administration views these as unacceptable limitations on us political and economic ambitions. The basic principles of the legal-diplomatic system—territorial sovereignty, non-intervention and non-use of force—have been flouted without so much as an effort at justification. The critiques are not, of course, symmetrical. While the left attacks international law for failing to live up to its ideals of justice, peace and equality, the reactionary assault evinces scant regard for such objectives, or presumes their unfeasibility. Instead, the right pushes its nationalist and white supremacist agenda in the hopes of restoring or consolidating us ‘greatness’ within a world of hegemonic centres and their subservient client states, using a rhetoric of absolute antagonism towards racial enemies to stabilize and discipline the resulting status quo.

While I sympathize with much of the left critique in the form presented by Anderson, in what follows I will argue that it is directed at too narrow a target: the weak part of the law governing international relations—the laws of the un Charter and the rest of multilateral treaty-making diplomacy. It overlooks what I call the legal infrastructure of global capitalism. This consists of the laws—public and private, domestic and international—that regulate practically all aspects of social life by distributing rights and duties, powers and vulnerabilities to groups across the world. The legal form of the sovereign nation-state and the concepts of contract and private property, as well as their many permutations, have spread across the world during centuries of European imperial dominance. They are neither weak nor manipulable at will. On the contrary, they form a ubiquitous and immensely powerful aspect of the way we are all ruled.

This legal infrastructure remains invulnerable to the standard critique of international law. It consists of many different kinds of law—international and domestic, private and public, formal and informal—that collaborate to reproduce the banal reality of an unjust world outside the spectacle of war and sovereign conflict. Consolidated in the context of state-building, commercial expansion and the ideologies of civilization, modernization and development, they do not form a logical system, nor are they the expression of a single plan. Yet since the 1980s, these laws have operated as largely taken-for-granted aspects of ‘global governance’, enabling powerful actors to make claims about legal rights, powers and privileges to which others have been expected to yield. Globalization has been an intensely legalistic affair. From the organization of government to the most technical rules of consumer protection, from claims of jurisdiction made by states against each other to the rights of identity, contract and property invoked by individuals and corporations, our social lives are framed and pervaded by law. Far from being an infinitely flexible façade, law governs the way we imagine our social relations, and thus defines the character of those relations. Nothing of importance can be accomplished without making claims about legal right, power and privilege.

The essay that follows is divided into four sections. I begin with some general remarks on the framing power of the law, on the way the international world comes to us already hierarchically organized by legal terms such as ‘sovereignty’, ‘property’, ‘contract’ and ‘right’. Whether a state, a corporation or an individual, all are expected to operate in the world according to such notions. Indeed, ‘states’, ‘corporations’ and ‘individuals’ are creatures of law, as holders of rights or duties. In the second section, I explore the ways public international law—the focus of Anderson’s essay—is supplemented and at times overridden by an extensive network of unequally distributed private rights, powers and privileges. The third section examines the ways in which the old boundary between international and domestic law has eroded as the ‘domestic’ has increasingly come to appear a local instantiation of an international standard or a transplant from some reservoir of presumedly universal laws. Finally, I offer a few words on the organization of human relations under conditions of complex globalization into something resembling an ‘empire of law’.
1. framing

Law is not just a set of rules waiting to be complied with or violated. It is a language that translates raw factuality into a binary code—legal/illegal—using jargon such as ‘right’, ‘responsibility’, ‘competence’, ‘privilege’. It turns, for example, the empirical fact of people queuing up to enter a heavily guarded area as the social fact of ‘asylum-seekers’ trying to cross an ‘international boundary’ into another ‘state’ in search of ‘rights’. It tells us that a gathering of well-dressed men and women in a tall building is a ‘conference’ of the ‘representatives’ of ‘members’ of the ‘European Union’, convened to ‘decide’, say, on ‘sanctions’ against ‘Russia’. To learn law—to become a competent law-speaker—is to learn how to translate social conflict into claims of legal status, and of rights and duties, and to single out the jurisdiction with the authority to implement them. Law operates in contexts of contestation about rights and duties and the distribution of powers and resources—claims about what is lawful and what is not, or, in other words, about what is legally true: true according to the legal/illegal distinction and how it ought to be applied in the world.

In this process of making, denying and affirming legal claims in an international context, only a small role is played by the laws of war and peace and institutions such as the un Security Council, the targets of Anderson’s critique. Law—that is, legal claim-making—is involved long before a diplomat or a politician begins to contemplate whether to comply. It is already in play anywhere something is identified as being in a government’s ‘interests’, anywhere somebody is empowered to make that determination, anywhere some assets are, or are not, counted among that government’s possessions. Law is in the rights, powers and privileges claimed by other governments, institutions and private actors that affect the first government’s calculation of the costs and benefits of their decisions. It is in a government’s financial position and in the markets that determine its tax base. Law influences the bargaining position of stakeholders by determining whether their relationship ought to be understood as public or private, domestic or international, economic or political. It distributes status and determines who has a right and who must yield. And it appoints the authority that decides between contesting claims. The decisions of war that Anderson highlights take place against a dense background of legal concepts and definitions from which those involved derive their status as claimants and choose their claims and counterclaims.

Law intrudes everywhere. It does not merely limit and constrain; more importantly, it empowers and enables. Situations to which law might at first glance seem not to pertain at all are in fact full of all kinds of legally constituted freedoms and powers that those with resources can employ against others who, in turn, may, or may not, oppose such intrusion by reference to their right to be free from it. ‘Property’ and ‘sovereignty’ are typical space-filling legal words of this type: ‘I am entitled to do this because I am the sovereign’, or ‘because I am the property-holder!’ As analytical jurisprudence demonstrated long ago, such claims always come with their (negative) counterparts in legal words such as ‘liability’, ‘disability’, ‘duty’ or ‘no-right’.footnote4 Law’s ubiquity is precisely about this confrontation between the freedom-rights of some and the duty of others to submit to them. This is why, incidentally, there is no such thing as ‘deregulation’, properly speaking. Every removal of a regulatory duty entails the establishment of a rule that empowers someone to do whatever had been previously prohibited.

All interactions with the ‘international’ world, from digital networks to the postal system to global trade, involve a vast array of legal rules and institutions. The management of any number of issues, from environmental protection and market access to fighting a war, has been completely coded in law. Each involves claims about treaty provisions, institutional hierarchies, contractual arrangements and status, as well as diffuse vocabularies about nationality, responsibility, human rights, sustainability and, increasingly, the ‘rule of law’ itself. As David Kennedy has observed:

The international world is the product of intense and ongoing projects of regulation and institutional management. The basic elements of global economic and political life—capital, labour, credit, money and liquidity, as well as power and right—are creatures of law. Law not only regulates these things, it creates them.footnote5

Legal experts play a central role in all of this: whereas sickness and health exist in the absence of doctors, legality and illegality are creations of legal discourse, of which lawyers are native speakers. To know the law is to know it as lawyers know it; to speak its language as they speak it. To grasp the power and the biases of law, it is therefore useful to attend to the proliferating institutional roles of lawyers, for example in the global spread of the business practices of us law firms, or the expansion of private commercial arbitration. Lawyers likewise hold key positions in regional integration bodies and humanitarian institutions, and at global organizations like the World Bank. They also play a pivotal part in the consolidation of the leading principles of eu law and in the coding of institutional facts, such as those which render capital assets exchangeable in financial markets.footnote6

Law’s power lies in its connotation of objective neutrality.footnote7 When something is addressed in legal terms, the history of struggle and violence to which Foucault referred—the origins of the law in ‘real battles, victories, massacres and conquests’—is set aside and forgotten. Law’s truth is what it is, and everyone must obey.footnote8 Although law primarily organizes the world in the process of making claims and submitting to them, sometimes claims are contested and an authoritative determination is required and made. The distance between a legal claim and its consolidation as ‘true’ in some institutional context is the ‘politics of law’. Studies of the roles played by lawyers in various institutional contexts demonstrate how bias emerges, as a claim hardens into a truth, becoming an institutional practice and the basis for distributing powers and resources. As a result, some claims begin to win systematically, others to lose.
A world of law

The West has played a predominant role not just in dictating the rules of war and peace, as Anderson observes, but in the transformation of international law into a technique of ‘global governance’ that not only organizes global economic transactions but permeates domestic policymaking areas such as energy, the environment, labour and public finances. The combined effect of the complex system of legal rules concerning free trade, investment and the administration of sovereign debt has, since the 1970s, been the establishment of the ‘developmental state’ in the global South.footnote9 A network of human rights instruments has reorganized the relations between governments and citizens, while international institutions push reforms of public administration in accordance with ideas about ‘good governance’, ‘transparency’, ‘accountability’ and ‘the rule of law’. No area of legislative policy is untouched by the seventeen goals of the un’s Agenda 2030 for Sustainable Development.

The creation and recreation of the world through law occurs through a process of constant contestation. Rules are invoked and challenged, principles are cited against other principles and the jurisdiction of authorities is affirmed and denied. Modern law is not a coherent whole to which a general view can be meaningfully taken but comes to the observer as piecemeal claims, embedded in more or less integrated ‘legal regimes’: clusters of rules and standards that often embody conflicting values and serve different purposes. Social conflict is translated into a conflict of legal regimes—trade law clashes with environmental law, human rights law with security laws—while each regime is itself internally split between an orthodox understanding of its priorities and heterodox challenges to it.footnote10

In this indeterminate context, however, patterns emerge, as some institutions begin to lead, others to follow, setting priorities and distributing resources in a stable manner. The rise of human rights in the 1970s and 1980s, for example, led to a wholesale re-evaluation of deeply rooted constitutional traditions and attitudes towards state power. Later a new pattern developed, as ‘securitization’ emerged as a backlash to that earlier process, privileging other values and actors. The debates about rights and security are utterly legal in character—often focusing on the competences of this or that authority, or the correct interpretation of the rules. Sometimes powerful actors instrumentalize specific rules. But at others it is the rules that establish authority and determine the consequences of authoritative decisions. ‘Princes rule, but interest rules princes’, as the old adage has it.footnote11 Often it is law that tells us what our interests are—who the owner or the sovereign is and what ‘ownership’ or ‘sovereignty’ means in certain relationships. Law’s precedents weigh and its patterns constrain. Only some things can be put forward as ‘valid law’, but what can and what cannot can only be determined in view of the legal-institutional context. The emergence of an institutional ‘truth’ may not end the struggle, however—the one who submits may simply lack the time or resources to contest it, for the moment.

Law and lawyers are central to a world that lacks a common ideology, history or teleology.footnote12 This is true of the global world, which law thus pervades: laying out its hierarchies, determining its forms of agency, allocating resources, picking winners and losers. Its dominance is manifested in the recent judicialization of international politics, visible in the increasing number of courts, tribunals, supervisory bodies and expert committees set up by governance treaties. European governments read the judgements of the European Court of Justice and the European Court of Human Rights with an intensity equal to that with which us politicians quarrel over their constitution and the case law of the Supreme Court. Arrest warrants against Russian or Israeli leaders make front-page news. The proceedings of the International Court of Justice on whether the assault on Gaza constitutes genocide, or on state duties with respect to climate change, are followed closely around the world. These rulings may lack the power of enforcement, as Anderson notes. Yet the significance of such cases lies not in their direct legal consequences but in what they represent: the rise of a view that the most important political conflicts are legal in character and must be dealt with by law and legal institutions. Without legal terms such as ‘aggression’, ‘genocide’ or indeed ‘sovereignty’, it would be impossible to publicly register the importance of an appalling situation, and to place it in a framework of shared meanings. A powerful actor may well disregard an international law, but it must surrender to the fact that moments felt to be of the greatest historical significance are articulated in legal terms.
2. public law in private service

Political debate in the West has traditionally been concerned with the public organization of a polity in its domestic and international relations. Its focus has been on the nature and limits of sovereignty. By contrast, legal thought has, since Roman times, centred predominantly on relations of private property—after all, the Justinian code was one of civil law. For centuries, these two aspects of rulership—power over people and things—were united in seigneurial government, and even after their conceptual separation in the 16th and 17th centuries, sovereignty and property, public and private power, remained intimately connected. In recent times, with the advance of globalization, the point of much public regulation has been precisely to bolster private rights.

European colonialism thrived on the intermixture of public power and private money. Investment in distant trading posts and commercial networks was beyond the resources of the metropole’s treasury, and rulers were happy to grant monopoly charters to enterprising merchants and provide diplomatic and military assistance in exchange for a reasonably secure return. Dutch colonial power was indebted to the sophisticated legal form of the joint stock company, with shares traded on the Antwerp bourse—a model imitated by Richelieu when he set up French colonial government. At least seventy-five large companies, chartered by the king but financed privately—often using the royal family’s funds—administered the French colonial realm from Nouvelle France to Pondicherry. None was as successful as the British East India Company, however. It took until 1808 for Britain to finally decide that the Company’s possessions belonged to the crown. The British ‘company-state’—not unlike present-day transnational corporations or public-private partnerships—is a good illustration of the hybrid character of European colonial rule, which was always a locally specific combination of formal empire and capitalism.footnote13

The understanding of ‘the law of nations’ as public law, concerned exclusively with state-to-state relations, was the product of the early 19th century. The period’s leading textbook, by Georg Friedrich von Martens, described the ‘positive law of nations’ arising from the Napoleonic defeat strictly in terms of European treaty-making.footnote14 Despite efforts by legal professionals to address the ‘social question’ in the mid-19th century—the novel problems of urban poverty and social dislocation brought about by industrialization—by the end of the century public international law was firmly concentrated on formal diplomacy in Europe and the ‘civilization’ of the colonies.footnote15 In the 20th century, a growing multilateral treaty system and the emergence of international institutions such as the League of Nations and the un supported the conception of international law as ‘diplomats’ law’. Foreign ministries began appointing international law experts, and thick textbooks from North Atlantic universities framed diplomacy as a legal system with formal doctrines about statehood, territory, treaty law, use of force and jurisdiction analogous to ideas about property, contract and the legal process in domestic legal systems. The un Charter was presented as a constitution of humankind. The end of the Cold War prompted liberals everywhere to seek to consolidate the ‘rules-based international order’ in a burst of internationalist activity spanning the establishment of the World Trade Organization in 1995 and the International Criminal Court in 1998 to securing regional integration agreements and multilateral treaties on climate change and human rights, biological diversity and ‘the war on terror’.

Throughout the last century and a half of intense diplomatic and academic efforts to bind sovereign states by legal rules in a manner analogous to the way domestic legal systems bind their citizens, this project has been met with scepticism and criticism. The rules have been ignored and breached; the discipline of International Relations, emerging from the First World War, was founded on the critique of the idea that a harmony of interests underlay these efforts.footnote16 In the shadow of these developments, meanwhile, a powerful network of legal relationships evolved which strengthened and expanded the rights of private property across the world. When, in 1850, the British Foreign Secretary stated that a British subject, like the Romans of old, ‘in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him from injustice and wrong’, he was framing the relations of property and sovereignty as a kind of romance. One of its first offspring was the system of arbitration for damages sustained by foreign businesses and for recovering debts from newly established states in Latin America and elsewhere. As intervention by gunboat was expensive and sometimes counterproductive, lawyers in London and Washington began to advocate treaty-making to oblige the host country to pay compensation for things like profit losses incurred during domestic disturbances.footnote17 None of this was automatic, of course. It took more than thirty armed us interventions to make a reality of the binding force of contracts with us businesses in Central America.footnote18 But state-organized arbitration became the preferred legal technique to secure the profits of us and European companies, from the Soviet nationalizations in the 1920s through the decolonization period and into the Arab Spring.footnote19

The system of protecting foreign investments in operation today derives from the high tide of imperialism. A major concern among Western powers in the 1960s was the fate of companies engaged in extractive business in the decolonizing world. While some succession agreements did protect ‘acquired rights’, the outcome of many nationalization disputes remained inconclusive. Therefore, at the initiative of the oecd, an International Centre for the Settlement of Investment Disputes was set up within the World Bank in 1966 to consolidate the treatment of claims made by foreign companies against their host states. The result was the emergence of what is today the most important part of international law: the law of foreign investment. There are now over 3,000 bilateral and multilateral treaties around the world in which countries have agreed to lift their disputes with foreign companies from the jurisdiction of their domestic legal systems, to be settled instead by international tribunals, set up by the parties themselves and often operating in secret. The applicable law is a vague standard of ‘fair and equitable treatment’ under which the host state commits to maintain the legislative and administrative conditions pertaining when the investment was made. If the state violates the company’s ‘legitimate expectations’, then it will be liable to pay full compensation, including for lost profits over years, sometimes even decades. More than 1,400 cases have been initiated by companies under these treaties.footnote20 The awards are exacted by an uncommonly strong system of enforcement. Under the 1958 New York Convention, the investor—or someone who has purchased the investor’s rights, such as a vulture fund—is entitled to implement the award practically anywhere in the world against the property of the defendant state, including its buildings, aircraft and vessels.

In recent years, the levels of compensation have soared.footnote21 In more than a quarter of company-won cases, payouts have exceeded $100 million, surpassing $1 billion in one in twenty cases. Ecuador was forced to pay $1.8 billion to Occidental Petroleum in 2012—a sum equivalent to 135 per cent of the country’s health budget. South Sudan was recently ordered to hand over $1 billion in compensation, about 15 per cent of the country’s gdp.footnote22 Two mining companies, one Australian, the other Canadian, were awarded nearly $6 billion against Pakistan in 2019—equivalent to Pakistan’s imf loan for that year—on the basis of lost profits for a project that had never even been lawfully approved by the government.footnote23 Today, the us company Próspera claims $11 billion from Honduras on account of the repeal by the Honduran Congress of a law on a ‘Special Economic Zone’ deemed illegal by the country’s Supreme Court. The sum is equivalent to two-thirds of the country’s annual budget.footnote24

According to a recent investigation by the Guardian, more than $120 billion of public money has been awarded to firms through investor-state dispute settlement courts, including at least $84 billion to fossil fuel companies.footnote25 The latter are even using the 1991 Energy Charter Treaty to sue states if they take action to decarbonize.footnote26 The true figures are likely to be far higher as companies often do not disclose the size of payouts. Specialized firms now offer financial assistance to corporations willing to sue their host states, in exchange for a share of the eventual award—a dynamic that highlights the systemic challenge to the regulatory powers of the state.footnote27

The point is not merely the inordinate scale, incoherence or dubiousness of the awards, nor the inability of states to raise claims against corporations; it is the global restructuring of relations between public and private powers that they represent. Investment law integrates foreign companies into domestic legislative processes. When a company threatens a government with claims, its negotiating position vastly exceeds that of most citizen groups. Although it is hard to quantify, the mere threat of a claim may suffice to ‘freeze’ planned legislation.footnote28 Moreover, by directing claims at strategically important sectors, corporations may produce precedents and interpretations affecting domestic laws across the world.footnote29 Claims against Canada, for example, have been registered in fields such as ‘energy, water and sewage, broadcasting, banking and social security’, as well as ‘public health and environment protection’ and ‘natural resources such as oil and gas, gold, forests and fisheries’; the list illustrates the extent of the practice.footnote30 Despite a recent backlash, the case law keeps growing and ongoing reform talks within the un have so far failed to question the system’s basic inequality.

Investment law is only the most visible aspect of the legal rearrangement of global relations underway between states and private actors. The weight of national tax laws has long been shifting from collecting and distributing resources among domestic constituencies to attracting the assets of foreign investors by expecting minimal contribution to public funds. General reforms have proven impossible and the field has been saturated with short-term solutions of immense complexity unintelligible to all but a handful of experts.footnote31 As is well known, this type of marketization extends to the spheres of labour, environmental and consumer laws. By redescribing such legislation as ‘non-tariff barriers’, the World Trade Organization has set definite limits on states’ legislative capacities. As a famous 1997 World Bank Report had it, the way to growth was through privatization; the state would be a ‘facilitator’.footnote32
Zones of privilege

In the course of the 20th century, an expansive system of commercial and investment law has emerged, aiming ‘to command the compulsive power of the state without engaging with its judicial and legislative functions and oversight’.footnote33 Although parties to international contracts are free to choose the law under which their relations are determined, in practice, recourse is usually to the laws of England or New York State. As most states have agreed in advance to enforce the awards given in private contract arbitrations, the result has been a de facto uniform law of contracts, enabling companies to restructure their internal activities and locate their operations wherever will allow them to minimize their tax burden.footnote34 An especially noteworthy legal technique is states’ voluntary retreat from applying their domestic customs, labour or social welfare laws in free ports, free trade areas, industrial parks or Special Economic Zones. Long advocated by the World Bank and the un Commission of Trade and Development (unctad) as a means for developing countries to attract investment and export earnings, there are now close to 6,000 such zones in almost 150 states. Apart from offering low or non-existent tax rates, cheap labour and subsidies, governments also cover planning, oversight and other infrastructure costs to create profitable conditions for companies.footnote35 Some of these ‘non-places’, such as the Dubai International Financial Centre (difc), have even set up their own legal systems to compete with older commercial tribunals in places like London, Paris or Stockholm, tailored to allow companies to avoid scrutiny under domestic laws. The four divisions of ‘difc courts’—civil and commercial, technology and construction, arbitration, and ‘small claims’—began operation in 2007 and now advertise over one thousand cases with $7.7 billion in claims and counterclaims, plus an additional ‘court of the blockchain’ set up in 2018, as well as a ‘court of space’ established in 2021 to offer ‘direct capacity and capability to commercial space-related disputes’.footnote36

Law is at the heart of these zones of privilege—indeed the most technical eccentricities of the law. The difc courts pride themselves on the competence of their judges and personnel in civil and common law, promising the highest level of judicial service for their clients. So far, benefits to the territorial states have been slim. Most zones have remained in the sweatshop phase, with companies departing as soon as the interim concessions period has ended. But the trend is clear, and even if the promised benefits fail to land in the pockets of the inhabitants of the countries, there is little sign of resistance to the gradual creation by law of an autonomous, parallel world of private privilege designed for the activities of the ultra-rich.

Equally intricate legal manoeuvres have led to global value chains that bypass states as regulators, leaving markets as the most important distributors of global wealth. Producers and distributors, designers, marketers and hundreds of intermediaries are brought together in such chains either by contract between separate entities or by corporation law between units of a single large firm, in view of tax or other benefits.footnote37 By enacting voluntary standards of ‘corporate social responsibility’, leading firms in a chain (such as Toyota, Adidas or Microsoft), as well as international institutions such as the oecd, have been able to foreclose more intense and formally binding regulation by states.footnote38 Private actors—such as leading law firms—also stand behind the standardization of rules on commercial transactions across many jurisdictions. For example, 90 per cent of the contracts on derivative products across the world, a market worth at least $25 trillion but likely many times more, are concluded according to the terms prepared by a single law firm.footnote39 Emerging from the commercial centres of Europe and the us, it is little surprise that all this private and domestic regulatory activity ends up allocating resources and welfare along the colonial pattern.footnote40

Law governs the distribution of global wealth by protecting and enforcing private property rights in a number of different ways. Take the world of finance. Out of a total of $100 trillion of global public debt in 2024, some 64 per cent came from private sources such as investors and banks, up from 42 per cent in 2000.footnote41 Because the rules of sovereign immunity no longer apply to states’ commercial and financial activities, debtor states often find themselves at the mercy of their foreign creditors. The process of debt settlement is, despite intense reform efforts, still managed by informal and non-binding arrangements, conducted by the Paris Club of creditor countries and London Club of principal commercial banks and other lenders. The austerity and restructuring conditions they impose on low-income countries sometimes lead to political collapse, as in the decade-long Greek debt crisis or in Sri Lanka in the early 2020s, when the national debt exceeded 100 per cent of gdp. Moreover, private creditors sometimes become holdouts, as with Argentina’s debts in 2001–16, when a single hedge fund, nml Capital, refused to go along with a settlement agreed with all the other creditors. As a result, ‘a defaulted bond contract, 55 pages long and 20 years old, led a nation of 41 million people to default on $29 billion in new debt’.footnote42 Diplomatic attempts under the g20 and the oecd to improve this state of affairs have so far had little effect.

Rules emerge mostly as the result of private legislation elsewhere in the financial world, too. The standard-setting work of the Basel Committee on Banking Supervision involves representatives of domestic central banks and other public authorities (though no politicians). By contrast, contracting over futures and derivatives has been regulated for the past forty years by the entirely private International Swaps and Derivatives Association, which has supplemented its Master Agreement with rules for private arbitration over disputes about derivatives transactions. Although the exact details are unavailable—arbitrations are usually secret—the financial sector now ranks second globally, after transport and commodities, in the use of private arbitrations to settle transaction claims.footnote43 Public legislators long ago left lawmaking in this area to the specialists who are also its beneficiaries.

When critics describe international law as a weak, hypocritical façade that is continually instrumentalized or violated by the great powers, they overlook the ways in which law, in its innumerable, often microscopic permutations, enables and liberates powerful private actors, at the expense of others, and distributes resources in a manner that reproduces the unjust structure of global relations. The legal techniques that combine sovereignty with property, formal imperialism with the market, fly under the critical radar. Such techniques are the product of a particular, ongoing history of Western dominance, and they are not for anyone simply to choose to employ or reject. Together with other global rules and institutions, they are the object of endless, complex reform projects which effectively block system-wide change. Along with the rest of the network of legally articulated hierarchies between human groups they, to borrow from Marx, weigh like a nightmare on the brains of the living.
3. from international to transnational

When Martens published his ‘modern law of nations’ at the turn of the 19th century, he conceived his subject in state-to-state terms, without presuming the presence of a separate ‘international’ realm. The law of nations was simply the external public law (‘äußere Staatsrecht’) of European states. This view would be adopted by Hegel in his Outlines of Philosophy of Right (1821) and in many continental legal systems in due course. When I was at law school in Finland in the 1970s, my textbook was tellingly titled ‘Finland’s International Law’, presenting the field as the laws that bound Finland in its relations with other states. The idea that there is a separate international world, not merely inter-national relations, emerged occasionally in the 20th century, usually in cosmopolitan critiques of state sovereignty, without much impact. More recently, the field has seen the rising popularity of ‘comparative international law’, the study of how different domestic laws deal with a country’s relations with the rest of the world. For most us lawyers today, as for early 19th-century Germans, the most tangible aspect of anything ‘international’ is us foreign relations law, that is, those aspects of us law that deal with the country’s relations with other states.

The international and domestic legal worlds are so deeply enmeshed that in order to examine the international power of law, it is necessary to register the convergence of domestic legal systems in what could be called, paraphrasing Duncan Kennedy, the empire of contemporary legal consciousness.footnote44 This is the specific combination of ideas about private and public law, the rights of ownership and identity, contract, money, criminal punishment, taxation and the role of judges and constitutions in social life that forms the shared common sense about the character of modern law. Today’s imperialism largely takes the form of reproducing abstract ideas about law and government connected with a specific set of legal-technical rules under which the same actors and interests typically prevail.

The spread of certain dominant ways of thinking about law and legal institutions across domestic legal systems is not a new phenomenon. The so-called ‘reception’ of Roman law across European jurisdictions helped consolidate absolute rule and organize commercial relations in late-medieval and early modern Europe. Equally famous is the impact of the intellectual hegemony of the German historical school of law, from the mid-19th century onwards, on the emergence of nation-states in Europe and beyond. Colonial administrations and leading universities made sure that these ideas would become widely influential.footnote45 Jurists like Hozumi Nobushige or Abd al-Razzaq al-Sanhuri drew on their familiarity with German and French law when modernizing the Japanese and Egyptian legal systems, while many anticolonial leaders received their legal education in Oxford, Paris or Brussels.footnote46 British, French and Belgian rule of their African colonies was an intensely legal affair, requiring the management of complex layers of metropolitan and local customary laws.footnote47 Later, the settlement of state succession issues and the organization of colonial economies inaugurated a culture of legal advocacy in postcolonial Africa that dominated debates about structural adjustment in the 1990s and 2000s. It is no wonder that a recent study noted ‘a huge, sometimes staggering expansion of private legal markets fostered by the expansion of legal education and rights-oriented non-profit sectors’.footnote48 Law was central to empire, and it remains crucial to the global South’s negotiations of its relations with the world economy. Ctd....