Wednesday, August 10, 2016

Özsu: Neoliberalism and the New International Economic Order

Umut Özsu (Carleton Univ. - Law) has posted Neoliberalism and the New International Economic Order: A History of “Contemporary Legal Thought” (in In Search of Contemporary Legal Thought, Christopher L. Tomlins & Justin Desautels-Stein eds., forthcoming). Here’s an excerpt:

This chapter focuses on the project for a “New International Economic Order” (“NIEO”), launched in the early 1970s with the hope of restructuring the world economy through legal means and effectively defunct with the consolidation of neoliberalism in the early 1980s. It does so with a view to complicating [Duncan] Kennedy’s avowedly tentative sketch of “contemporary legal consciousness.” My contention is straightforward: even if one does not subscribe to Kennedy’s particular brand of legal structuralism, or has certain reservations about our ability to speak meaningfully about overarching langues for large chunks of time, closer attention to the NIEO is useful for developing a sharper understanding of the legal thinking that has been made available for mass consumption during the past several decades. An outgrowth of the commitment to Third World solidarity that typified the Group of 77 and Non-Aligned Movement, the NIEO constituted a sustained attempt to craft a new international law that would facilitate resource redistribution in a world economy whose regulatory architecture had revealed itself to be fragile, if not obsolete. It fell short of socialism, cleaving instead to a modified form of state capitalism. However, it was also fed by suspicion of the neoliberalism that had emerged during the interwar period, suffered defeat at the hands of the Keynesians after 1945, and begun to reassert itself in the wake of the collapse of the Bretton Woods monetary system in 1971. Insofar as it represented the Third World’s most concerted response to the dissolution of the “global New Deal” inaugurated by the 1941 Atlantic Charter and realized partly through the establishment of the United Nations, its failure is best explained by reference to the contemporaneous resuscitation of neoclassical economics in the form of an increasingly assertive mode of neoliberal capitalism that prioritized private property, freedom of contract, anti-union “fiscal discipline,” state retreat from social services, and across-the-board liberalization of trade in goods and services. Stymied by the intransigence of Northern states, not to mention its own conceptual inconsistencies, the NIEO was unable to counter this development, providing useful fodder for neoliberals—who, it bears reminding, were occasionally given to framing their arguments in legal terms—to make their case.

Christopher Tomlins has argued that neoliberalism may offer the economic (or, perhaps, economic-cum-juridical) logic in reaction to which a variety of different legal responses have been crafted during the course of the past half century. The NIEO’s failure may well be the single most significant and illuminating confirmation of this thesis, providing evidence that the real anchor of Kennedy’s murky “contemporary legal consciousness”—what Mark Mazower has justifiably termed “the real new international economic order”—is none other than neoliberalism, the central, if not always spoken or visible, point of reference for nearly all attempts to theorize law since the early 1970s. Neoliberalism may not amount to a comprehensive langue, stitching together the disparate paroles of today’s legal landscape. But there is certainly much to be said for the view that it operates as a source of inspiration and (far less frequently and successfully) opposition for a range of different legal projects. Re-examining the NIEO—neoliberalism’s most direct opponent on the international legal plane—is particularly instructive in this regard.