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John Linarelli

Publication Date

5-2014

Document Type

Article

Abstract

One of the most enjoyable moments I have as an academic lawyer is when students, who have had limited exposure to the law on international economics and commerce, have the profound moment when they realize how many rules and institutions are at work in these fields. Students seem to come into the course thinking international exchange occurs in a Hobbesian state of nature. A few weeks into the course, I start to ask for the students' views on whether the law is more developed internationally than domestically. Their attempts to answer this question become an opportunity to reflect on the law and its aims. I hope they leave my course with an appreciation of the substantial public and private law institutions at work in the global order. We all have some form of "ownership" of these institutions, not in the form we find in states, but clearly something. ...

This Article does three things. First, it outlines the historical evolution of trade institutions. My aim in the first part is to make the point that institutions have been at work in international trade for some time and that these institutions evolved after 1945 into a complex system of multilateral cooperation with substantial organizational and administrative characteristics. A few caveats are in order. I am not a historian, and a proper historical account of this kind cannot be accomplished in a law review article. In addition, the historical survey I set forth is no doubt incomplete and focuses almost wholly on the West or its contact with non-Westerners. Moreover, the distinction between interpreting and describing can be elusive. For example, an economist might see trade along the lines of liberal or "free" trade versus protectionism and associate protectionism with a form of nationalism or mercantilism. Actually, history is full of examples in which the promotion of free trade goes hand-in-hand with nationalism, aggression, offensive war, and colonialism. ...

Second, the Article examines whether normative political theory supports the extension of duties of justice beyond nation-states. Theories that disagree with this proposition usually do so because of a lack of coercive institutions or a political community, features which, in Mathias Risse's words, render states "normatively peculiar" and "morally relevant." Given the substantial institutions identified in the first part of the Article, with their history rooted in coercion, I argue that limiting the domain of justice only to states and their citizens is open to doubt.

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