October 28, 2013
by Wayne McCormack
Jess Morrison, one of my students, just posted an excellent critique of UN policies which could be contributing to instability in less-fortunate nations. As it happens, I just delivered a talk to a conference on these issues, and it offers another perspective on what we could do about the problems.
1. In Praise of the Rule of Law
There is a tendency today to blame all the problems of under-developed or impoverished nations on Western institutions and ideas. The argument basically is that colonialism is being reproduced under the guise of investment and enforcement of external controls. I want to counter that with the proposition that the means of human dignity – work, education, housing, health care – in emerging nations can be achieved only through a globalized system of law. Indeed, I really don’t need the strawman of “UN/IMF bashing” to make my point – it stands alone as a plea for a global system of law to promote local economic justice.
The “Rule of Law” has received bad press in the past few decades because of perceived abuses in developing countries. It is claimed in some quarters that the apparent good intentions of the World Bank have gone awry by funding development projects that left poor countries in debt while lining the pockets of corporate developers. “Rule of Law” projects, especially those fostered by USAID, are accused of perpetuating abuse through legal systems that promote privatization of resources without a commensurate return to the populace.
The “Rule of Law,” however, is not the problem – the problem is how power is used, and it certainly can be misused. But without a Rule of Law, there is nothing to prevent the powerful from abusing the vulnerable. It is Law, defined generally as established norms enforced by a recognized political entity, that holds a society together. There can be good Law and there can be bad Law, but without Law there is only anarchy in which the powerful oppress the vulnerable.
For the emerging global economy to function effectively, there must be a global system of law. No protection for human rights is available without law and enforcement mechanisms. In turn, no social structure can long exist without a system of rights. Nor is it feasible to imagine an economic structure without law and enforcement of expectations. Even before civilization, humans were social animals living with structures, defined roles, and expectations within the tribe or clan – those roles may have been highly restrictive of freedom but they were norms enforced by the clan’s “monopoly on the legitimate use of force.”
Most scholars peg the rise of civilization to the advent of agriculture (for the production of wheat either for bread or beer depending on who you believe). As the division of labor began to free humans to engage in different occupations, even more clarity was needed with regard to norms and expectations. A shoemaker who agreed to produce shoes for two bushels of wheat, or the musician who agreed to perform for two bottles of beer, needed assurance that bargains would be kept. Thus arose the structural construct that we call law.
This raises two questions of great importance in the 21st Century. First, are there pragmatic reasons beyond moral concerns for a person in Sweden to care about living and working conditions in Bangladesh? Secondly, if so how would supranational norms and controls be enforced to create a “good” – not “abusive” – Rule of Law for Bangladesh?
The first question can be answered rather easily by reference to principles espoused by every economist from Adam Smith forward as well as the practical experiences of the U.S. and E.U. in building continental economies across multiple borders.
With regard to the second question, in addition to the “abusive” lending practices mentioned above, U.S. “Rule of Law” projects have been scathingly criticized for attempting to impose a particular vision of a legal system on societies with very different cultural backgrounds and norms. But meanwhile, there are some norms that have been proclaimed since the end of World War II as “Universal” in nature. Through Declarations and Conventions, the international community has proclaimed some freedoms and claims of right to be universally applicable regardless of the local culture.
That apparent tension between universal norms and local cultures comes down to this: under what circumstances and through what procedures is it appropriate to impose external norms on a developing or emerging nation state?
2. Controlling Violence and Economic Exploitation
It is much easier to see answers to the conundrum of universal norms and local cultures with regard to controlling violence than it is to see answers with regard to social and economic norms. The world has dealt with widespread physical violence in the last century through a combination of prescriptive norms and ad hoc tribunals. The progression from overt violence to the impact of labor conditions is easy to see in the collapse of a factory building that kills 1100 people, but I need to make some distinctions in order to promote a systematic approach to the different problems.
In terms of number of victims, there is a natural progression from mass atrocities (read war crimes), to medium-scale violence (read terrorism), to individual acts of violence for personal reasons (with which the international community is not concerned), to human trafficking (in which, although the total numbers are huge, the crime is individual and of international concern).
I maintain the distinction between overt violence and crimes that degrade the human condition, such as poverty and environmental wrongs. Labor conditions and environmental damage are ripe for criminal sanctions, although I want to catalog them separately from overt violence for several reasons, the most obvious of which is that they cry out for different solutions.
Even widespread overt violence – war crimes, terrorism, trafficking, piracy – are sadly lacking in enforcement. When dealing with concerns over labor conditions and environmental harms, the situation is even worse. There really are no global definitions of wrongs – just vague commitments by member nations to provide good working conditions or to reduce greenhouse gas emissions.
3. The Means of Human Dignity in a Global Order
The trickiest part about imagining a genuine world order is the law of labor relations. Clearly minimum wage rules cannot be precisely the same in under-developed nations as in the developed world. But to stop the flow of capital to the cheapest labor markets will require some form of standardization, at least across regional or geographically similar locales. Perhaps starting with laws regarding forced labor and child labor, where the basics already exist, conventions could begin to deal with conditions of employment, from which it would be possible to move on to other aspects of labor conditions. The ultimate goal is to internalize all the costs of production – requiring basics of health, housing, food, education for the family of workers.
The human condition revolves around these freedoms: health, work, food, shelter, education. With advances in technology and communication, money and violence can move more easily across the globe. So too then must law move. Without the rule of law, there is no human society.
At the same time, the genius of federalism is taking account of local differences through governance of some issues by local populations. It is utter foolishness to believe that a Western Rule of Law system can be imposed on tribal cultures in places such as Afghanistan or the Congo without at least an extended period of self-discovery within the context of a globalized marketplace.
The net effect of these observations is that there are certain universal norms that must be followed in every nation-state. These are embodied in LOAC, IHL, UDHR, and the like. These set the bottom floor for treatment of civilian populations below which no nation can be allowed to sink without encountering the force of a global government. With respect to labor conditions and economic regulation, however, the federalism approach means some messy periods of adjustment will be necessary. There is likely to be a very extended period of combining external norms with self-discovery, and entry into the global economy with fairness to a nation’s own citizens.
4. Toward a Global Federalism
The example of U.S. federalism, which until 1937 resisted the federal standardization of labor conditions, shows that external enforcement of fair labor standards can actually enhance local economic conditions. Until the U.S. economy was decimated recently by a combination of deregulation and wasteful wars, federal labor regulation worked reasonably well in the U.S. because standardization could take place in a reasonably homogeneous setting. The culture and topography of Georgia is certainly different from that of New York, but not so different that standardized labor conditions could not function.
How that experience can be compared to the prospects for enhancing labor conditions in the so-called “gap” nations is a mystery for which I will be seeking help from the economists and sociologists. Probably the answer will be something like a dual-tier federalism in which standards are set by regional organizations such as the EU, under the global umbrella of a more enlightened global regulatory system.
Personally, I’m OK with leaving some mysteries for the next generation. What is clear to me is that the Rule of Law should embrace both universal norms and controls as well as regional and local diversity. We will surely see a messy period of movement toward global federalism. Federalism on this scale will not be achieved in my lifetime, nor even in my sons’ lifetimes, but it is inevitable. The sooner we recognize the inevitability of global federalism, the sooner we can get about the business of figuring out its dimensions and ramifications.
Wayne McCormack is a Professor of Law at the University of Utah S.J. Quinney College of Law, where he teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure. From 1997-2002 he coordinated the University of Utah's involvement with the 2002 Olympic Winter Games, and that experience led to security planning for major events and interest in international legal issues, including the law related to terrorism.