Imperium, Dominium, Terra

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

Quinn Slobodian –

9780674979529About a year before Globalists was published, I presented in Mattias Kumm’s colloquium on Global Constitutionalism at the WZB Social Science Center. It seemed like an ordinary talk until the end when the first question came from someone who introduced himself as an international lawyer from Spain. “What are the normative implications of your talk?” he asked. I was stunned. It took me a moment to figure out why.

I’d never been asked that question before.

Historians ask about sources, they ask you to push your story forward or back—or forward and back—or wonder about unheard voices and unseen actors, or dynamics of power, or subtleties of translation and evolving meaning, about temporality and meta-narratives and space and agency and disciplinary placement and categories of analysis, but very rarely—if ever—do they ask about normative implications.

A couple of years and miles from Berlin, I’ve come to expect and even demand the question.  There are, after all, always normative implications to our work. Why not talk about them openly?

The LPE blog has been generous enough to gather pieces from seven legal scholars about my book. Few shy from the question of their Spanish colleague.

All are critics of the settlement I call alternately neoliberal globalism or ordoglobalism that coalesced in its present form in the 1990s around institutions like international investment law, European competition law, and international treaty organizations like the WTO and NAFTA.

The blog authors’ interventions cluster around questions of description and prescription. I will argue that the former supply the grounds for the latter.

What we see tells us what to do. I will conclude by suggesting what we are still missing.

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On “Commerce and Civilization” – The Question of Order in the Post-Colonial World

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

Kojo Koram –

9780674979529“Commerce and Civilization!” These two terms formed the dual mandate popularized by Lord Lugard, the first British Governor-General of a united Nigeria. Despite its promise as being the encumbered, pure logic of the market, liberal capitalist trade has always carried a civilizational imperative, a desire to make or remake the moral order of the world. Quinn Slobodian’s Globalists: The End of Empire and the Birth  of Neoliberalism tells the story of capitalism’s most recent world-making revolution, giving us an intellectual history of the idea of neoliberalism. Spanning the breadth of the twentieth century, taking us from the chaotic disillusionment of the Habsburg Empire up to the triumphant establishment of the World Trade Organization, Slobodian’s book helps reframe the common understanding of neoliberalism as a project not of freeing the market but of instituting and safeguarding it. Through Slobodian, we come to think of neoliberalism as a productive and not a merely a destructive ideology; neoliberalism did seek to dismantle the model of labour power and social welfare that had arisen in post-war Europe, but it was also concerned with creating international institutions that could cultivate a fertile terrain for international capitalism. This post takes up the question of order as Slobodian articulates it, the quest for a fixed economic order underneath the potential disorder of competing nation states being a driver of neoliberalism. Specifically, I wish to reflect further on the history of neoliberalism as it was implemented in the Global South, a story that Slobodian points us towards in Chapter 5 of his book, but a story that remains underappreciated for its consequences upon the contemporary world.

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Globalism and the Dialectic of Globalization

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of NeoliberalismRead the rest of the symposium here. 

David Grewal –

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Quinn Slobodian’s Globalists has rightly received praise and critical attention as a groundbreaking study of the ideologies operative in the cloistered domains of international economic law. Indeed, the book has been reviewed favorably by everyone from radical academic critics of global capitalism through to some of the figures responsible for the construction of the neoliberal world order, with some reviews even reposted on the IMF website. Rare is the historical book that can bridge such diverse audiences, providing not just an account of past institutional contestation and reconstruction but the fundaments of today’s politics.

In this post, I want to bring out a dimension implicit in Slobodian’s book but which has not received as much critical scrutiny: the political theory behind what he calls “globalism” or “ordoglobalism” in contrast with what we might call “internationalism.” A confusion about the varieties of cross-border activity and the national politics that each entails is now rampant on the left, with what I believe are increasingly deleterious consequences for democratic and progressive aims of all kinds. A full analysis of these problems is of course beyond the scope of a blog post. Here, I hope merely to suggest the outlines of such a distinction by drawing attention to a key passage in Slobodian’s book to which other interested readers might turn and then to contrast “ordoglobalism” with a prominent form of progressive internationalism that was articulated in the last century. I then want to suggest that the doubling down of ordoglobalism has produced the current and much discussed “crisis of international liberalism” through what I call the “dialectic of globalization” (but which – following Slobodian – I might have called more precisely the dialectic of ordoglobalism).

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Many Neoliberalisms: Market Logic and Social Values

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Kate Redburn –

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As many of the other contributors to this symposium have attested, one of the signal achievements of Globalists is the evidence that “neoliberalism” is indeed a coherent set of intellectual commitments, growing like any other ideological movement out of a particular set of historical conditions and contingencies. Fearful that the post-WWI proliferation of nation-states would obstruct the international flow of capital, a diverse set of economic thinkers converged on a new form of internationalism, intended to insulate transnational markets from democratic decision-making at the national level. Given the common suspicion that “neoliberalism” is a trendy, empty synonym for late capitalism, Slobodian’s persuasive account of substantial intellectual agreement – a real “there there” – gives historians of neoliberalism a more solid base from which to proceed.

Given the novelty of this argument, it may be somewhat surprising that I’m not focusing my response on the core agreement within the neoliberal thought collective, but on its internal division over social policy and moral preference. Contrary to accounts of neoliberalism as a hegemonic governmentality, Slobodian illuminates the differences between socially libertarian and socially conservative neoliberals from the earliest days of the neoliberal thought collective. The result points toward a more analytically specific account of American neoliberalism, one which acknowledges the uneven and contested development of actually-existing neoliberal law.

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Neoliberal Encasement Infrastructure: The Case of International Organization Sovereign Immunity

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Isra Syed –

9780674979529Last month, the Supreme Court handed down a historic decision in Budha Jam v. International Finance Corporation, ruling that, under the International Organization Immunities Act (IOIA), international organizations are no longer subject to absolute judicial immunity in U.S. courts. The case marked a significant victory for the plaintiffs, who are a group of Indian fishing communities suing the International Finance Corporation (IFC) over tortious environmental damage in their communities caused by the IFC-funded Tata Mundra coal plant. However, the Budha Jam decision, which now restricts international organization immunity to the same level of immunity granted to foreign sovereigns, raises a set of questions about equitable transnational governance, brought into sharp relief by Quinn Slobodian’s “market encasement” thesis in Globalists. As per his thesis, global neoliberalism operates not through a theory of pure anti-statism, but rather through reliance on a strong order of supranational governance institutions with the ability to protect private property interests in a manner insulated from democratic feedback (i.e. “markets encased by institutions”).

In a world of encased markets, what would it mean to make organizations like the World Bank and IFC more democratically and locally accountable? And, to what extent is judicial review in U.S. courts a useful path toward such accountability?

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European Constitutionalism: The Neoliberal Drift

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Alexander Somek

9780674979529We have not yet seen the full story of “law and neoliberalism”, even though a number of legal scholars have written on related subjects from slightly different angles. Duncan Kennedy, for example, has repeatedly attempted to tease out and to distinguish periods of globalized legal scholarship. Herb Hovenkamp recently presented a sweeping account of the imprint that Darwinism and marginalism left on American law. As early as in the 1970s and 1980s, proponents of the critical legal studies movement, such as Roberto Unger or Mark Kelman, pointed out that the modern legal system as such lends expression to the values of liberal individualism (again, it is Kennedy to whom we owe important contributions in this context). Inadvertently, Kelman’s penetrating critique of Chicago school style law and economics, in which he was joined by many others, turned out to be the first critique of typically neoliberal legal thinking, even though it had grown out of the attempt to expose the pathologies of “liberal legal consciousness” tout court.

What we have now seen with the publication of Slobodian’s Globalists, is how, and in which respect, economic neoliberalism has fed into the emergence and growth of global and regional transnational legal institutions. As Slobodian artfully demonstrates, this connection is by no means accidental, it is, indeed, a consequence of the belief in the existence of a world economy. If the economy is in fact an entity of global expanse, the old liberal demand that the state not unnecessarily interfere with society has to be extended to external relations. States must not pursue protectionist policies nor affect adversely the interests of foreign investors. What is more, integrating the decentralised national regulators of the world economy into some international federal system promises to wipe out redistributive social policies in the long haul owing to intense economic pressures of regulatory competition.

In what follows I would like to underscore the importance of Slobodian’s contribution, for it allows us to perceive more clearly the relevant differences between the US American and the European variety of legal neoliberalism. I would also like to add an example for how the European version reinforces constitutional constraints on national democracies in practice.

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The Globalists: Law, Race, and Empire In and Beyond Intellectual History

This post is part of our symposium on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Ntina Tzouvala –

9780674979529‘We are all internationalists now, whether we like it or not’, proclaimed Tony Blair in 1999, possibly the high-point of (neo)liberal internationalism. In his masterful Globalists, Quinn Slobodian reconstructs the intellectual history of a particular group of thinkers who were instrumental to the ideological and institutional ascendance of a particular idea of neoliberal internationalism that emphasized the role of law and institutions for the maintenance of global capitalism. Self-described as the ‘Geneva School,’ this group included members such as the German ordoliberal Wilhelm Roepke, the noted international lawyer Ernst-Urlich Petersmann and, according to Slobodian, Friedrich von Hayek himself. Notably, Globalists situates the formulation and diffusion of the ideas of the Geneva School in the intersection of two imperial collapses: the demise of the Austro-Hungarian Empire and the rapid collapse of European empires in the decades following the Second World War. The question of how to create and maintain economic order in the face of political collapse and re-organization led the Geneva School to undertake an effort to decouple the juridical protections of competitive markers from political authority, an effort accompanied by the Geneva School’s fundamental distrust in the proliferation of mass democracy and workers’ power at home and abroad.

Situating the Geneva School within this post-imperial context is important not least because this aspect of neoliberal thought was previously neglected or misconstrued through a selective reading of some neoliberals’ earlier critiques of empire as ways of building trade monopolies and rent-seeking. Perhaps more importantly, this particular way of contextualizing neoliberal thought enables Slobodian to clarify the neoliberal understanding of the state, not as a monster to be slayed but rather as a necessary guarantor of competitive economic order, but only when it is effectively disciplined and remade by international laws and institutions. The role of law is, thus, central in Slobodian’s account, given its very centrality in the thought of the protagonists of this book.

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Neoliberalism: From Law to Resistance

This is the first of a series of posts on Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism. Read the rest of the symposium here. 

Christine Schwöbel-Patel –

9780674979529There are two recurring themes about neoliberalism and law. One of the themes (often voiced by the Right) is that neoliberalism has become a type of bogeyman, standing in for everything privatized, profit-driven, inequality-creating. Another recurring theme (often voiced by the Left) is that neoliberalism has been entirely ignored by lawyers, who believe that what they are doing does not really relate to the de facto inequalities of the global economy. Commentators on neoliberalism therefore either consider it as tediously omnipresent or as worryingly absent. Quinn Slobodian’s recent brilliant book Globalists addresses both of these themes, providing nuance to those troubled by neoliberalism and urgency to those (so far) untroubled by it. Apart from the elucidation of neoliberalism, Slobodian also gently but decidedly points us in the direction of possible routes for reclaiming internationalism from the Globalists.

From Slobodian we learn some vital things about neoliberalism which compel more nuance in the use of the term. It should be said that what we learn does not make neoliberalism more benign, but rather it allows us to pinpoint when and how neoliberalism came to be the dominant project – and with that possible modes of resistance against it. For international economic lawyers who believed that politics and ideology are outside of the discipline’s ‘neutral’ legal structures, the book should be more than simply an eye-opener; it should lead to a profound and devastating revelation of how international economic law is deeply implicated in inequality today.

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