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    Koskenniemi II 📂 Archived Message

    Posted by Keith-264 on August 31, 2025, 9:41 am, in reply to "Martti Koskenniemi The Laws That Rule Us The Legal Infrastructure of Global Capitalism"

    https://newleftreview.org/issues/ii154/articles/the-laws-that-rule-us
    Duncan Kennedy sketched the trajectory of three globalizations of legal thought since the mid-19th century—the expansion of (German) historical formalism and voluntarism (‘classical legal thought’), the (French) ‘social’ conception of the early 20th century, both now integrated into today’s ruling (Anglo-American) pragmatic melange.footnote49 Each phase involved a certain way of responding to questions about what is central and what peripheral in law and legal practice. How is the conflict between private rights and public policy preference resolved? What is the role of courts and judges? What type of constitutional thinking ought to be practised? Each ‘moment’ of legal thought would not necessarily offer identical rules or solutions, but each was marked by certain sensibilities, prima facie assumptions, best practices and background beliefs about the law, easily discernible among legal professionals.footnote50 While the ‘classical’ heritage stressed private (contractual) will and formal constitutionalism, the ‘social’ emphasized broader functional objectives and principles of administrative propriety. In the latter part of the 20th century, the reigning professional style combined these different approaches with a focus on courts and ‘balancing’ between conflicting rights and principles.

    The global diffusion of forms of legal consciousness and accompanying standards of professional practice and academic excellence began with colonialism and the internationalization of cultures of governance in the 20th century. The globalization of the European state-form spread particular ideas about civilization, development and good government, each coded in the legal vocabularies of property and sovereignty and their many permutations. The homogenization of domestic legal education and practice was set in motion by the assumption, accepted everywhere by the 1980s, that in order to bring about ‘growth’ states had to integrate themselves into the pre-existing world of diplomatic and economic exchange. Opening up the economy necessitated organizing society around key ideas about government and the market, the stability of property and the enforcement of contracts, the position of individuals within the family and the workplace, as well as the limitation of state power under a constitution.footnote51

    Developments in legal education are a good place to survey this homogenization. As Bryant Garth and Gregory Shaffer have written: ‘The influence of us law spread, facilitating and regulating market transactions, as exemplified by contract law and contract practices used for commercial transactions, corporate governance standards, approaches to environmental law, trade law and human rights law.’footnote52 Competition and marketization began to suffuse standards of legal competence, channelled through legal training everywhere. The integration of eu law into law curriculums fostered similar background assumptions and sensibilities among law students across Europe. The emergence of ‘leading’ law schools modelled on the Anglo-American image—indeed the very switch to the term ‘law schools’ from law ‘faculties’—cast law as a craft akin to business, rather than an intellectual discipline. The spread of English-language textbooks and electronic materials, international master’s programmes, the expectation of study abroad, increasing numbers of academic visitors and the conference circuit all tended to support the homogenization of assumptions about the nature of law and legal practice.

    Likewise, the global spread of the corporate model of the us law firm and, to a lesser extent, activism in human rights and public interest lawyering, have consolidated ideal types of the professional lawyer, together with a new hierarchy among forms of legal professionalization. Work at international law firms with multinational corporations as clients, focusing on private arbitration, as well as human rights advocacy within ngos, have overtaken older forms of legal practice and downgraded the previously high status of domestic public and constitutional law. The growth of us-type lawyering in Latin America has been carefully mapped, highlighting the way the traditionally close relationship between legal and political elites on the continent has raised the standing of leading partners at large international law firms in the region’s politics. Their involvement in the management of the Latin American debt crisis and consequent privatizations and austerity programmes has been paralleled and countered by the emergence of human rights lawyers following the us civil rights model, both vested in an activist engagement with the transformation from military rule to neoliberal policies.footnote53

    As a result of this process, domestic legal systems have become increasingly homogenous, engaging with individual rights, investment protection, the rule of law and constitutionalism according to global standards, with variants leaning either in the us or eu direction. For three decades, international institutions, professional bodies and think-tanks have propagated models of the ‘rule of law’ as indispensable elements of modern governance.footnote54 Development projects in the global South have offered an important opportunity for international agencies and donor countries to push for the formalization of property rights, anticorruption policies and the separation of legal institutions from old rulership structures in order to offer stable conditions for investment and exchange, and enshrine the objectives of ‘growth’ and ‘sustainability’ in domestic governance.footnote55 Again, this does not mean that laws have become identical everywhere. The idea that there is a ‘one size fits all’ system of laws remains the favourite bête noir of legal comparativists, who are keen to stress the sophistication of their craft.footnote56 Instead, what has become virtually universal is a set of priorities and background assumptions about how to organize human relations to secure ‘growth’.
    Global norms

    The blurring of the line between international and domestic laws was described fifteen years ago by a leading commentator, Peer Zumbansen, as the ‘increasingly transterritorial nature of regulatory governance’. He was referring to the growing plurality of normative regimes both ‘hard’ and ‘soft’, private and public, that have emerged outside of the state to align domestic government with international policies. The academic debate about the nature of such regulation as ‘law’ overlooks its compelling force on state governments, which often appear as little more than local managers of global processes, with regulation law determining their objectives, allowing room for only local adjustment. Well-known examples of such ‘regulation law’ include the eu directive and the framework treaty, the latter accompanied by optional annexes or schedules as well as some provision for reporting and surveillance. As Zumbansen noted:

    Today, many regulatory areas can only be understood as instantiations of global norm creation. Supply chains that tie regional and global markets together, commercial arbitration, food safety and food quality standardization regimes, internet governance, but also environmental protection, crime and terrorism are key examples of fast expanding spaces of individual, organizational and regulatory activity that evolve with little regard for jurisdictional boundaries but, instead, appear to develop according to functional imperatives. Similarly, fields such as corporate, insolvency and even labour law that had long been understood as embedded in historically evolved political and regulatory economies, today display a distinctly de-nationalized character. footnote57

    It is hard not to see neo-colonial implications when such ‘regulation’ emerges from powerful actors like the us or the eu with its notorious ‘Brussels effect’ that de facto obliges firms across the world to adjust themselves to the requirements of significant markets.footnote58 No less influential are the technical standards and certification systems generated daily by international expert institutions in areas such as forestry management, fisheries, mining and apparel safety.footnote59

    The World Bank and the oecd are well-known producers of such regulations. Standards of best practice issued by the former deal with aspects of ‘good governance’ such as public procurement, public management, anticorruption, disaster management and relief. Detailed, goal-oriented indicators were included in the World Bank’s ‘ease of doing business’ rankings of individual countries. Discontinued in 2021 after data irregularities were found, this was replaced by an even more detailed country-by-country assessment—the Worldwide Governance Indicators, listing items such as ‘voice and accountability’, ‘political stability’, ‘government effectiveness’ and ‘regulatory quality’. Among oecd-produced indicators are those dealing with responsible business conduct, public policymaking and governance, avoidance of tax-base erosion, anti-bribery and green growth. The organization’s infrastructure indicator includes graphs that enable easy comparison of each country’s long-term strategic visions for infrastructure development and their fiscal sustainability.footnote60 The oecd has also released a set of best-practice guidelines for domestic regulatory policy.footnote61 These are just some examples of standards prepared within various international committees, working groups and meetings attended by experts and government officials. Their non-binding form is offset by the latter’s integration in the social world of global governance.

    Private institutions are equally active in producing indicators and standards. The World Justice Project, an initiative of the American Bar Association, publishes a Rule of Law Index that ranks 142 countries according to criteria such as ‘constraints on government powers’, ‘absence of corruption’, ‘open government’, ‘regulatory enforcement’ and ‘fundamental rights’. Established at the height of liberal hubris in 2008, it has also produced a side-project, eurovoices , which deals with democratic governance, safety, justice, transparency and the business climate, among other things. The project ranks eu countries on civil participation, equality before the law, freedom of opinion and expression, and free, fair and secure elections. The scorecard on transparency and corruption produces data on ‘absence of bribery’, ‘right to property’, ‘transparency and access to information’, ‘regulatory enforcement’ and ‘simple, predictable and timely administrative proceedings’.

    Since the 1990s, a project has been under way to transplant elements of Western constitutionalism to former Communist countries that emerged from the Cold War and aspired to eu membership or access to resources from international financial institutions. European and us experts in constitutional law have been travelling the world, explaining Western constitutional principles to foreign audiences, ‘claiming that there is a significant congruence between social problems and their constitutional solutions, and arguing that the areas of agreement and overlap clearly outweigh significant contextual and functional varieties’. As the legal scholar Günter Frankenberg puts it, they have ‘pursued an overwhelmingly Western, unitary project by confirming their view in a cross-culturally coherent body of constitutional law’.footnote62
    The culture of rights

    As domestic societies integrated into the globalized economic and cultural world, the remnants of religion and tradition that still provided social cohesion came under enormous stress. In order to implement privatization and marketization, and to provide a substitute for traditional moralities, the space of the social was everywhere filled by law, especially law articulated as individual rights.footnote63 Originally directed against authoritarian governments, the language of rights spread in the 1970s from Europe and the United States to much of the rest of the world, seeking to empower individuals and excluded groups: It is my life, who are you to tell me how I should live! The politics of identity was legally consecrated in the rapid proliferation of rights-instruments that claimed ‘trumping’ power over countervailing policies and social values.footnote64 As individuals and groups increasingly translated their preferences into the vocabulary of ‘rights’, more and more social conflicts were interpreted as rights-conflicts, leading to an intricate proliferation of clashing rights-claims. Freedom of speech and religion became key parts of far-right agitation and security officials learned to dress their concerns in terms of the ‘right to security’.footnote65 After natural rights, how was one supposed to tell the difference between real and ‘fake’ rights claims? When is a speech act an ‘exercise of the freedom of speech’ and when an incident of ‘hate speech’? There is no automatic, non-political way to make that distinction. It is all a question of perspective and a matter of contestation and struggle. Historically, the most powerful rights claim has doubtless been property—yet the enforcement of that claim has involved the denial of subsistence rights of large human groups.footnote66 It is no coincidence that neoliberal economic policies arose with an emphasis on property rights and the rigorous enforcement of contracts.footnote67

    The expansion of the international culture of rights has given a voice to previously excluded groups and interests. It has also legalized politics and instrumentalized courts, tribunals and other expert bodies on behalf of those struggling for the formal recognition of their identities or preferences. Yet two features in the global spread of ‘rights’ have undermined their critical force. First, rights-advocacy has channelled social conflict into bureaucratic avenues such as courts where the outcomes are limited to legally available remedies that exclude large-scale transformation of the social conditions responsible for most serious rights-violations. Second, since rights are indeterminate—their meaning and applicability are largely dependent on the social ‘balancing’ carried out by legal institutions—they become another administrative vocabulary for addressing social conflict, losing their original ‘trumping’ force and becoming subordinate to the priorities and biases of those very bodies whose discretion they were meant to constrain.footnote68

    The emergence of new forms of ‘transnational law’—laws that are neither international nor domestic but express interests shared by groups in different geographical locations—has led to the ‘blurring of boundaries between law and society’.footnote69 Formal laws, treaties and binding decisions by international bodies count for a small amount of the materials referenced by transnational lawyers as they articulate what is legally ‘true’ in a given situation. Legal knowledge and its vocabularies mix the global and the local, the normative and the technical-factual, in a novel legal sensibility which, whatever else it does—solves disputes, provides policy advice, designs institutions—reproduces on a daily basis the world’s institutions and hierarchies, and the regressive distributive consequences.
    4. international law as global governance

    Anderson’s critique is directed against the state-centric world of international law visible in the work of international institutions like the un, multilateral treaties, public diplomacy and the laws of war and peace. As we have seen, this emerged as a product of 19th-century German thinking about ‘sovereignty’, and had begun to be criticized during the interwar period by an increasingly cosmopolitan legal profession.footnote70 Nothing came of the critique of state-centrism at the time, however. Later, Cold War diplomacy and decolonization were likewise conducted under formal state-centrism; in the absence of shared political objectives, law was simply expected to protect sovereignty and maintain non-intervention.

    The first serious postwar challenges to the formalism of statehood arose in the mid-60s when Wolfgang Friedmann, a leading legal theorist and international lawyer at Columbia University wrote that ‘the national state and its symbol, national sovereignty, are becoming increasingly inadequate to meet the needs of our time’. A different kind of society was emerging: ‘beside the level of interstate relations of a diplomatic character there develops a new and constantly expanding area of cooperative international relations’. Friedmann even imagined the European Communities as ‘a possible precursor of a future integration of mankind’ and claimed, somewhat optimistically, that the ‘necessity to protect the individual as such internationally, even against his own state, has become an accepted postulate of international lawyers, and the recurrent subject of international debate’.footnote71 Friedmann represented a sociological welfarism that aligned with many institutional projects under way, such as the establishment of the unctad in 1964 and the rise of ‘law and development’ generally, the conclusion of the two human rights covenants in 1966 and the process that led to the 1972 Stockholm Conference on the Human Environment. The most significant regulatory effort of this period, the New International Economic Order, sought to decolonize relations between sovereigns and redress the injustices of economic relations embedded in international law.footnote72

    The 1990s brought the end of the Cold War, expansion of the European Union, and intensification of international cooperation on trade, development, the environment, technology, resource management, even democracy. In this decade, the un set up its ‘social agenda’ through a series of global conferences: Rio 1992 for the environment, Vienna 1993 for human rights, Cairo 1994 for population and development, Copenhagen 1995 for social development, Beijing 1995 for women and Istanbul 1996 for human settlements.footnote73 Regulatory ambitions were no longer pursued in the 1970s mode, however. Sovereignty-driven development became suspect. As the World Bank put it, the time of ‘technocrats’ with ‘fanciful schemes’ was over. The state was to be restricted to basic functions, the provision of security especially, and to engage in intensive ‘partnerships with firms and citizens’ with the goal of ‘market liberalization and privatization’.footnote74 With the creation of the wto, trade law shifted its focus from tariffs to limiting subsidies through domestic industrial, labour and environmental policies—core functions of statehood.footnote75 Human rights bodies began to undertake close surveys of governmental practices—calls for ‘legitimacy’ and ‘accountability’ were everywhere—and the International Criminal Court was set up to prosecute political leaders. People within and outside such institutions learned to address each other and wage their campaigns in legal terms, claiming rights and accusing their adversaries of crimes against humanity. Political scientists began to write on the increasing ‘legalization’ of international affairs.footnote76

    The turn to global governance did not mean worldwide ‘planning’ by bureaucrats within centralized institutions. Instead, like European nation-states a century before, the global world was understood to be undergoing a process of functional differentiation. footnote77 Spheres of economic and social activity arose as autonomous fields of expert knowledge, a process of ‘fragmentation’ registered by the international law profession in the emergence of specialist technical disciplines (trade law, human rights law, environmental law, intellectual property law and so on). Each technical field was established to deal with a discrete problem, imagined as ‘global’. Each had its own objectives, which began to clash: trade law collided with environmental law, security with human rights, investment law with the rights of indigenous peoples. Such conflicts first became a major concern for the legal profession in the early 2000s.footnote78 International politics appeared transformed: a matter no longer of conflict between ambitious states but between legally articulated ‘regimes’ challenging each other in search of what could be called epistemic hegemony. Politics became a struggle for jurisdiction. Is a crisis in Central Africa a human rights issue or an economic development problem? The answer depends on whom you ask, the High Commissioner of Human Rights or the World Bank. Is post-conflict governance in Kosovo a matter of security, of adequate housing and employment or of educating girls? Peace-keeping professionals, social development experts and human rights activists will each provide a different answer, with equal conviction. Legal truth is not one but many. And they are in struggle.footnote79
    The rise of expert rule

    Yet it soon became evident that specialist lawyers were capable of coordinating their actions. Meeting regularly at global conferences, sharing a similar educational and cultural background, they could understand each other and make the required adjustments. Solutions to complex global problems became open-ended and negotiable. Black-letter rules gave way to recommendations and schedules tailored to the capacities of the participants. Such deformalization is, as Max Weber observed long ago, a feature of modern governance. In complex societies, rigid rules create injustice, appearing either over-inclusive—covering cases that it is unjust to cover—or under-inclusive: failing to capture new but relevant cases. Global governance was no more about finding homogenous solutions than about respecting the formal boundaries of sovereignty. Treaties on climate change, international investment or laws of war adopted ambiguous language—‘common but differentiated responsibilities’, ‘fair and equitable treatment’, ‘proportionality’—to reflect the social world they sought to regulate. This was law as economics: balancing the interests of those empowered to sit at the table.

    The result was expert rule. Instead of providing formal rules—‘utopian’ in view of the world’s complexity—law aligned itself with the priorities of systems of technical expertise deemed competent to solve problems those systems had themselves identified as such. States may still play a role in appointing the experts. But their policies have no distance from the expert regimes that have succeeded in making their particular problems the ‘general problem’. Political struggle is reduced to a contest of functional priorities: environment or trade? More investment or more human rights? Everybody agrees on ‘development’, but is the relevant indicator gdp or hdi? In global governance, hegemony is epistemic: the transformation of a special concern into the general concern, articulated as binding law.

    Hence also the predictable backlash against it. The anti-globalists soon noticed that ‘global governance’ involved distributing resources among technical experts and their favoured projects. The trade expert wants more trade, the environmental scientist more protection; the security expert pushes for more surveillance, the human rights expert for less. Each has a project based on their idea of best practice. Each believes resources ought to be directed to their field, that their project ought to become the global project. Notwithstanding the certainty with which each side makes its claims, what is actually taking place is a battle for resources and prestige—one in which the anti-globalists realize they have no say. They do not speak the language. Instead, they have a single conviction: whatever the expertise, we will always lose in the end; whatever the policy, it is bound to treat us as an ignorant underclass.

    Michael Hardt and Antonio Negri suggested reimagining imperial rule, not as a single centre radiating its power across the world at large, but as a system with no such centre, with power embedded in the hierarchical networks of ‘international society’—in the forms of knowledge carried within specialized types of expertise.footnote80 This is a useful way to understand law’s role in the reproduction of the conditions of the international world today, and a worthwhile object of critique. Once we move our gaze from the spectacle of un action or inaction, diplomatic conferences and decisions of war, and focus on the often-hidden, low-level rules, practices and standards that are the daily business of legal professionals across the world, a new image emerges. Not a manipulable set of grandiose, indeterminate statements but a dense structure of hierarchical relations, submission to which is not optional for any single actor. This structure establishes the very conditions for participation in the social world of global rule.
    epilogue: trump

    From the vantage of 2025, it appears that the world of international law that emerged in the 1990s and their melancholy aftermath in the first decades of the 21st century may have vanished. The wto is paralysed. Negotiations on the reform of the investment law system are stalled. The production of multilateral treaties under the un has all but ceased. The implementation of the schedules set forth in the 2015 Paris Agreement under the un Climate Change treaty is anything but assured. As part of its authoritarian turn, the us is attacking or ignoring international institutions, throwing overboard not only hallowed rules on free trade and refugee protection but apparently also those underwriting sovereignty and territorial integrity (except, of course, when its own is concerned). Can it still be said that international law, in the opaque, sometimes microscopic forms presented in this essay, has any power?

    Yes, it has. Everything that swept Trump to the presidency was initiated, coordinated and brought to fruition by law. This includes the us constitution, of course, but more importantly, the whole legal infrastructure of global capitalism I have been sketching—the laws of property and contract and their institutional derivations that account for the wealth of some and the poverty of many, in the us and abroad. It was these rules—about corporate taxation, the conduct of financial markets, the conditions of international trade and investment—that underwrote donations to the Republican pacs, that underpin the wealth of the billionaires who joined Trump at his inauguration, that chose winners and losers in the presidential campaign, but also, not unrelatedly, that dictate the conditions of the us economy. These rules also lay out the powers of the us president, which is why the legality of most of his controversial Executive Orders is being challenged, and often vindicated, in dozens of lawsuits across the us.

    Everything the Trump regime has done is embedded in an intense legal debate in the us and abroad. Every understanding of his administration’s actions, critical or supportive, is couched in terms of legal rights, immunities, powers and privileges—a reflection of how thoroughly legalized politics has become, at the domestic as much as the international level, even among apparent adversaries of the ‘rule of law’. Viewing Trump’s actions as a rejection of the rule of law arises from a liberal understanding of the notion. Faith in that understanding, or some of its many variants, may be justified—and it may be shared by a sizeable part of the legal elite—but this does not mean that liberalism’s adversaries do not also have a view of the proper content and functions of law.

    Authoritarians also have their rule of law.footnote81 There may be good reasons to detest it, but it would be an analytical and political mistake to disqualify it as law. No one is entitled to rest content on their progressive laurels by simply referring to the ‘rule of law’ without attention to the kinds of law and legal institution such invocations end up buttressing. Focusing one’s political energies on legal or institutional reform alone is of course insufficient. It is certainly useful to recognize the progressive potential of the recent advisory opinion by the icj in Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory. But such recognition must be combined with a critical, strategic understanding that an official legal pronouncement of this kind enters a contested legal-political field, and that much more will be needed to enable the realization of that progressive potential in actual human relationships. In comprehending the power of international law, close attention must be paid to its pervasive effects on social hierarchies and the distribution of powers and resources among human groups the world over. Who, as a result, has to yield to whose legal truth?

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