David Kennedy
Preface
Draft of October 18, 2013
As I drove up the mountain for my first World Economic Forum, it seemed possible
Davos would turn out to be where the world was governed: innumerable checkpoints, fancy
cars, careful instructions on what to do with your jet and where your chauffeur could park. It
was January 2009 and the global economy was teetering. Much seemed up for grabs and there
was nervousness in the air --- was the global system up to it? The Forum had just launched a
“Global Redesign Initiative” to support what they called a “fundamental reboot” of the “global
architecture.” I had been asked to help. This wouldn’t be Bretton Woods: the goal was a
renewed commitment to bend the tools at hand to the urgent issues of the day. But was there, in
fact, a global system to reboot? I was struck by the uncertainty among these titans of finance
and industry and government. How, they wondered, did the global political and economic order
hold together and who could do what to right its course?
They weren’t alone in wondering – and worrying. People everywhere now understand
that they are vulnerable to the decisions and actions of people far away. Their own national
state is rarely able – or willing – to defend their interests or support their economic, social and
political aspirations in a globalized world. International arrangements are hardly more
promising. The costs and opportunities generated by a global economic crisis – or climate
change -- fall unevenly across the planet and are therefore as much a matter of struggle as an
opportunity for collaboration or consensus. But just how is that struggle undertaken? Where
are the sites for influencing the distribution of economic opportunities and resources? In the
years since 2009, the costs of the crisis have been distributed between global investors and local
communities, between generations, among workers in different sectors and different parts of the
world. Risks and vulnerabilities have been allocated among national economies, between
families and faraway financiers. How did this happen? Under what constitutional settlement
has it been solidified?
For all the scholarly attention devoted to international affairs, law and governance, it is
surprising how little we understand about how our world is organized and governed. Not
because it is not important. Assuring reliable and sustainable sources of energy, preventing and
responding to pandemics, ensuring adequate food and clean water for an expanding population,
enabling economic development, and resolving cultural conflicts --- none of these will be solved
by one city or one nation or one corporation alone, but neither will they be resolved by the
United Nations and the routines of global summitry. It is easy to imagine lots of institutions
having something to do with ruling the world: the World Trade Organization, the European
Union, the U.S. government, the major banks and global corporations, big non-governmental
foundations and advocacy groups, big governments in the developing world. But who does
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what and how are they knit together? Why does the global economy so often seem to operate in
a universe of its own, cut off from political management or contestation?
In the years since that first crisis-freighted trip to Davos, I have reflected on my own
experiences with global governance as a lawyer and scholar. Over the years, my work has taken
me to a variety of places which, like Davos, seem to have something to do with the organization
of the world: the United Nations, the European Union, the human rights community, the worlds
of military law and strategy, of multinational corporate law practice, risk management and
regulation, and of global higher education. The people I’ve met in all these locations have ideas
about how their own projects fit into a larger global system. Some think they are close to the
center of things, others that they are far away. Whether they are lawyers or economists,
managers or diplomats, they engage one another and shape their projects in ways that reflect
their professional training and the habits of the expert communities in which they work. Some
think that they are specialists in international politics, others economics or business or law. It is
hard to understand how their activities and projects add up, just as it can be difficult to see how
the somewhat different worlds imagined by international politics, politics, law and business fit
together.
This book reflects my own effort to fit the pieces together. Five points stand out:
Law is everywhere. The domain outside and between nation states is neither an anarchic
political space beyond the reach of law, nor a domain of market freedom immune from
regulation. Our international world is the product of an intense and ongoing project of
regulation and institutional management. Law is everywhere. With the dispersion and
fragmentation of global economic and political power has come legalization. Globally
as nationally, the basic elements of economic and political life – capital, labor, credit,
money, liquidity – as well as power and right --- are creatures of law. Law not only
regulates these things, it creates them. Law constitutes the actors, places them in
structures, and provides both the language and the stakes for economic and political
struggle. As a result, legal arrangements offer a privileged window onto political
economic dynamics, allowing us to trace the micro- and macro-processes through which
people struggle over economic benefits and political authority in their legal entitlements
and vulnerabilities, locating the roots of political economic change in the quotidian
exercise of entitlements and capabilities in the capillaries of society. Focus on law takes
us inside the operations of globally distributed power.
Global governance is more field of struggle than constituted order. The ubiquity of law
does not mean things are well ordered. Global governance is not a matter of global
problem solving or the implementation of consensus values. It is far too disorderly,
plural and uncertain. No one is in charge and there is no coherent or structured system
through which decisions are taken, interests aggregated, outcomes enforced. The driver
is a relentless conflict among interests struggling with one another for social, political and
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economic advantage. Struggle on this terrain is neither a matter of persuasive arguments
nor of strong armies and big bank accounts. It is all of those things together: a matter of
both power and knowledge at the same time. It is neither a material struggle waged with
words nor a struggle over values and ideas waged by force. It is both at once, and more.
Bargaining power is as much a matter of knowledge as leverage is a matter of persuasive
authority. Politics is as much an ethical struggle over the meaning and rationality of the
world as it is a struggle of “interests,” just as the struggle among rationalities is also
about distribution among interests.
The struggles by which the world is governed are difficult to grasp because they neither
occur in a defined institutional location nor are organized around a central material or
ideological axis. This is not predominantly a struggle among nations or civilizations or
ideologies for dominance nor a struggle among economic classes over the structure of
world order. It is a thousand battles, large and small, waged simultaneously among firms,
consumers, workers and financiers over the distribution of gains from economic activity;
among communities, families, religions, media and political figures over the morality to
be embedded in social institutions; among military planners and politicians,
humanitarians and civilians over the desirability of this war, the targeting of this village,
the imprisonment of these people. The world is organized and we are governed by the
outcomes of such struggles.
Inequality is the central axis in governance struggles.. No struggle takes place among
equals on a level playing field – for long. This is a world of winners and losers,
struggling over the ability to lock in gains and defend their dominance. The fault lines
between winners and losers mark the outcomes of past struggle and affect the alliances,
affinities, oppositions and trajectories for the next round. The dynamic relations
between myriad centers and peripheries lend order to the struggles of governance. The
lines between winners and losers or centers and peripheries are often written in law, in
legal arrangements and legal ideas. Law draws the lines along which small differences
eddy into vicious cycles reproducing and entrenching inequality.
Ideas matter. Envisioning and interpreting the world is central to world-making and
governance. In the disorderly struggle through which our world is governed, ideas and
images matter as much as resources or formal powers. If for a generation everyone
thinks an economy is a national input/output system to be managed, and then suddenly
they all become convinced that an economy is a global market for the allocation of
resources to their most productive use through the efficiency of exchange in the shadow
of a price system, lots has changed. That is also governance. As a result, the global
governance struggle is as much a duel of fiction as of fact. Law is both the vernacular
for making assertions about how the world is – who has public authority, who has private
right – and the residue of past debates and struggles over who can do what to whom. It
offers an excellent portal onto the practice of arguing about the existence, potential and
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promise of global governance --- and with it, about the structures of global order and the
agents of global action.
The vernacular of governance and rulership is expertise. Global governance is the
project of experts, performed on their stage and scripted in their language. Identifying
and opposing the hand of power in faraway places is also an exercise of expertise. Both
resistance and rulership are practices of knowledge as much as authority, undertaken in
vernaculars of expertise. Although this is often a professional practice, carried on by
lawyers and diplomats, media pundits and politicians, it has also become something far
more general, animating discussion among grass roots organizers and grandmothers,
financiers and confidence men. In this sense, law is one case of the more general
significance of experts and expertise for global governance. To understand the role of
ideas and knowledge in the practice of governance, the aspiration for governance and
resistance to governance, we must understand the nature of expertise and the role of
experts in political, economic and social life. Looking for law and the operations of
expertise offers a window on the alchemy by which knowledge becomes authority and
power becomes right, helping to identify the links between ways of knowing and forms
of authority in a chaotic and unsystematic global system.
Two methodological predilections run through this study. The first is a focus on the coconstitutive relationship between politics and economics. Although my own thinking has been
deeply influenced by political science stories about international relations, multi-polarity or
balance of power and economic stories about the operations and imperfections of global markets,
I am searching here for a way to put political and economic developments into a common story.
Focusing on law helps. Legal rules and institutional arrangements are the building blocks of
both economic and political life. Things like money, credit, liquidity or property, on the one
hand, and powers, rights and jurisdiction on the other, are legal institutions, each of which affects
both spheres. And the vernacular for managing their relationship, separation and connection, is
also legal.
The intellectual foundations for the return of political economy to academic life have
been laid. Analytic models in both economics and political science now routinely endogenize
social, cultural and institutional factors. Economists are reaching out to understand the
institutional, social, psychological and political arrangements which undergird global economic
life. Many scholars have traced the impact of global economic arrangements on local, national
and global politics. Some begin ethnographically, in a place, with a group of people, and unpack
the many forces, near and far, which manifest themselves there. Others follow an object – a tshirt perhaps – as it comes into being and moves across the planet, tracing its impact and
reception in the many places it lands. Others grasp the world by the handle of energy and
environmental use, or by tracing cultural and media technologies and flows.
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All of these efforts have opened a window on the interrelated nature of political and
economic life in a world of global markets and local government and on the mechanisms by
which inequalities between leading and lagging sectors, nations and regions are reproduced
while “governance” at whatever level operates as cover for economic dominance and political
dysfunction. Others have looked at the world from the perspective of one sector or industry,
exploring the logic and structure through which it operates globally across cultures and nations
and economies. I tried to do that some years ago in a study of the ways war is undertaken,
regulated and resisted through law. There is now an important business management literature
focusing on risk management and corporate strategy across global value chains which analyzes
the political and regulatory environment alongside market risks and opportunities, blending the
political and the economic. Some have sought to revive political-economy tradition that speaks
of centers and peripheries in a world system. These are all useful places to begin, all of which
have influenced my thinking in preparing this book.
I have been particularly influenced by work in law has explored the institutional roots of
the global economy and polity in local and private rules with transnational effect, in informal
networks and professional practice, and in the dispersed regulatory and administrative regimes of
many nations and localities. Legal scholars have searched for the glue which binds the global
economy together and the institutional forms and practices which fragment, professionalize and
dis-empower our politics. Law, legal institutions and expertise are central to governance
whether you worry about the distribution of business opportunities and risks or sites for political
resistance, whether you follow t-shirts or the carbon based energy system.
My second methodological inclination is a focus on the co-constitutive relationship
between the apparatuses of power and those of cultural narration, imagination, myth,
professional argument and public reason. Here, my thinking has been influenced by
sociological traditions which focus on the ways in which power is “legitimated” by knowledge
practices that rationalize, explain, interpret and associate exercises of power, powerful people
and powerful institutions with myths, ideologies and other large ideas about values and interests.
As well as by traditions which trace the ways that ideals and values are rendered persuasive,
enforced and trained into people through the institutional machinery of power and the mechanics
of force.
I am less clear, however, that these are different domains affecting one another than
many mechanical pictures focused on the links between them suggest. The exercise of power,
even as brute force, is hard to think of outside a discursive world of meaning: just think about
missiles dropped to send messages or Clint Eastwood’s “go ahead, make my day.” In the same
way, it is difficult to think about ideas, ideologies or myths legitimating a decision or action
except to the extent they are hegemonic across people with the power to halt or support that
exercise of power. Again, a focus on law is helpful. Legal norms, institutions and professional
practices are the building blocks for acting and being powerful, as well as for interpreting,
communicating, celebrating and criticizing power. Law is everywhere a matter of doing things
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by using words. Law both translates power into right and provides the machinery for
identifying, interpreting and enforcing entitlements. In the international world, the reciprocal
co-production of power and right is particularly pronounced. In the absence of both hegemonic
power and value consensus, the world is governed through a struggle carried on by actors
asserting their own and contesting one another’s powers and rights in all kinds of diverse
situations in the vernacular of law.
This methodological inclination also continues a well developed intellectual tradition in
social theory, sociology, political science and the social or anthropological study of science
which emphasizes the ongoing partnerships among modes of knowing, reasoning or
communicating and ways of being or acting in the world. The linguistic turn in philosophy
placed ideas in the habits and experiences of their expression. The structuralist and poststructuralist turn across the humanities and social sciences strengthened the tools for identifying
the operations of power in the forms through which ideas are developed, expressed and passed
on. As I understand them, these traditions urge us to resist understanding the world by
distinguishing thinking from doing, theory from structure, agents from context and structure and
then explaining how they are linked. The persistence of these analytic habits is itself part of the
way our world reproduces itself – and us. My effort here is to sketch paths for inquiry which
minimize the significance of these common and often intuitive patterns of explanation.
I begin with a large scale sketch of the contemporary global order and the role of law in
its reproduction. The first chapter introduces global governance as a struggle carried out among
professionals on a terrain shaped by law and traces the process by which global economic and
political affairs have become estranged from one another, rendering questions of global political
economy increasingly difficult to address and reproducing unhappy dynamics of political
dysfunction, conflict and environmental destruction. Chapter two places dynamics of inequality
front and center as an organizing framework for understanding governance struggles. It
explores the process through which dynamic inequalities between centers and peripheries are
reproduced and entrenched through law and legal struggle. These two large scale pictures --the division of politics from economics and dynamics of dualism --- both written in the language
of law, form the background for the remainder of the book.
For a long time, global questions of inequality were interpreted against the background of
a relatively stable relationship between a first world of developed nations and everyone else.
The main players in the story were the developed nations of the North Atlantic, whose balance of
power (or balance of terror) stabilized their domination of a world system in which other peoples
were harnessed to their economic and political dominance, before, during and after colonialism.
In this framework, questions of inequality could be addressed politically, with more or less
success, either through the national political institutions of the first world or the international
diplomatic structures which arose after decolonization. This picture is no longer accurate. This
is partly a function of the “rise of Asia” and the emergence of the “BRICS” powers. Far more
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important, however, has been the rise of transversal and unstable global economic and social
arrangements as the primary elements in the global order. Across the world, political authority
is weaker and more dispersed, economic flows more varied. The fragmentation and dispersion
of political authority has rendered economic life vulnerable to political risks from unanticipated
quarters while the forces unleashed by the globalization of economic life batter political elites
from everywhere and nowhere at once.
All economies, including the world economy, are developing economies. In this, a
fundamental neo-liberal insight was correct: just as the ideological fault line between the first
and second world no longer defines global political struggle, the economic fault line between an
“underdeveloped” third world and a “modern industrialized” first world no longer defines global
economic relations. Not, however, because liberal democratic politics has become the global
default or because the management of routine business cycles in deregulated markets has become
the universal national economic challenge. Quite the contrary. The diversity of political
arrangements has increased. All countries have political characteristics once routinely thought
anomalous and there is no one “normal” or mature form for political life. Stable and significant
political regimes come in many varieties --- more or less authoritarian, more or less religious,
more or less decentralized, more and less technocratic, with different blends of public and private
economic power. Few could be said to work well when it comes to addressing large scale issues
of political economy and the distribution of growth. It is not simply that the state has been
“unbundled” or political power “networked” across boundaries. Politics has everywhere
become a diminished shadow of economics as political institutions and elites have been
instrumentalized by economic interests. It is not surprising that they find themselves
deadlocked – or simply disengaged – when it comes to addressing issues “in the public interest.”
At the same time, the economic challenges characteristic of the “developing world” have
become common across the industrialized world. All economies face strategic choices between
different modes of insertion in the global economy, confront challenges of inequality and
structural dualism, find their economies riven with market failures, information and public goods
problems for which they lack instruments to respond, and find themselves talking about new
strategies for growth rather than the efficient management of a relatively stable business cycle.
In short, the difference between the first and third worlds has eroded because all nations now
face political, social and economic challenges once typical of the third world.
This has transformed the arrangement of centers, peripheries and semi-peripheries from
the age of colonialism or the Cold War. Economic and political bargaining power remains
unevenly distributed --- but not along a single axis. As growth here erodes incomes there and
consolidates itself as political right, a proliferation of center-periphery dynamics become visible.
As a result, global political economy today rests on an accelerating social and economic dualism
between leading and lagging sectors, economies, nations and populations. It is not surprising
that we face a revolution of rising frustrations among the hundreds of millions who can see in,
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but for whom there seems no route through the screen except rebellion and spectacle. Or that
we face the restive demoralization of all those whose incomes, economic opportunities and
expectations have fallen – and will likely continue to fall.
Unfortunately, law’s role in global political economy, struggle and inequality remains
poorly understood, in part because international lawyers and legal scholars have been doing
something else. In Chapter three, I examine a century of world-making and governance by
international legal scholars and practitioners to understand just how it has avoided engaging
effectively with issues of political economy, conflict and inequality. Chapter four expands this
study of the professional world-making of international lawyers to examine world political
economy and global governance as works – and struggles -- of imagination and communication.
Chapter five focuses on experts and expertise as a way to bring the world-making significance of
ideas and concrete institutional arrangements and actions into a common frame. Experts
reproduce and manage the world as it is. The book ends with the hope that we might rather make
the world anew.
ADD ACKNOWLEDGEMENTS
Chapter 1: Struggle: Global Governance as Political Economy
Chapter 2: Inequality: Law and the Global Dynamics of Center and Periphery
Chapter 3: International Law: How Legal Science Gets in the Way
Chapter 4: Global Governance as Fact and Fantasy
Chapter 5: Global Governance Reason: Expertise
Epilogue
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