The Legitimacy of the World Trade Organization
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“Humankind was born free but is everywhere in chains . . . How did this change happen? I am unaware of that. How can it be made legitimate? I believe I can resolve this question.” Understood in these terms, the problem of legitimacy is the central political problem of Western modernity. It arises from a consciousness that there is no higher authority to which the individual, or indeed the collectivity, naturally or self-evidently owes allegiance/obedience. The idealized synthesis of divine law and human political wisdom in medieval natural law theory had failed to offer a practical solution to the competition between throne and altar, sect and party, and its Aristotelian metaphysics and scholastic logic became the target of a new spirit of scientific inquiry and investigation. As is most explicit in the ideas of Hobbes, the problem of legitimacy and its solution have, from the outset of modernity, been bound up with the construction of sovereignty, a kind of power that, once legitimated, is supposedly insulated from challenge by competing higher authorities, whether secular or religious. Once this is appreciated, it becomes easier to understand the tortured, twisted path that the legitimacy question has taken in the sphere of international “order”—if sovereigns are themselves the exclusive object of legitimate obedience/allegiance, how is it possible to even think of the possibility of a legitimate power above and beyond the sovereign? There is a time-honoured tradition of finessing this problem through basing the legitimacy of international institutions on the consent of sovereigns themselves; this finesse gains its plausibility from an attractive analogy between the consent of sovereigns to institutions above them and the basis of the sovereigns' own legitimacy, namely the real or hypothetical consent of the individuals over whom they exercise power. But there is a problem with this analogy, for the second kind of consent is both necessary and sufficient, according to contractarian strands of modern political theory, to establish the sovereign's monopoly of violence or force over its citizens; it is a contract between the would-be citizens themselves to surrender the natural power and freedom of each to the sovereign. Yet in the case of consensual commitments of sovereigns to one another, there is no super-sovereign, as it were, to enforce the contract against a violating sovereign through the application of irresistible force. If such a super-sovereign were to come into being, then we would have, effectively, not an international institution but an empire—in the absence of which, what constitutes the consent of sovereigns is merely a kind of forbearance or attitude of aristocratic comity among equals. This explains the manner in which the issue of legitimacy often gets raised in contemporary discussions of international law and institutions by advocates of these institutions namely, as a means of inducing, persuading, or seducing sovereigns to comply with what they have agreed to, not as a justification for a monopoly of irresistible force but as a palliative for its absence. Yet the critics of international institutions also raise the issue of legitimacy, as a response to the perception not that these institutions have no, or little, power, but too much. Thus, cross-cutting the legitimacy issue is a question about the nature, salience, and location of power. Sovereigns use international organizations as a means of legitimizing their own power or transposing to another site the question of the exercise of sovereignty within the state—if the WTO or the IMF legitimates a certain policy choice by sovereigns, then what in turn legitimates the WTO or the World Bank? The bureaucrats within the organizations, or their technocratic friends on the outside, respond by putting the ball back in the court of the sovereigns—there is no power here, only consensual choices of sovereigns, the organization being a mere servant of its members, or an administrator of their ex ante choices. We cannot, without further inquiry, be sure that the legitimacy question, posed to international organizations, is not a trap or a distraction from its urgency at the level of the sovereign state. And conversely, a finding that these organizations lack legitimacy need not result in pessimism or despair, even if we are inclined to support the kinds of policies which it is their rationale to further—the implication might simply be that the legitimacy question must be answered in a different place.
Source Publication
The Legitimacy of International Organizations
Source Editors/Authors
Jean-Marc Coicaud, Veijo Heiskanen
Publication Date
2001
Recommended Citation
Howse, Robert L., "The Legitimacy of the World Trade Organization" (2001). Faculty Chapters. 881.
https://gretchen.law.nyu.edu/fac-chapt/881
