Response to Graf

Abstract

Sinja Graf’s generous reading of Marketing Global Justice is a source of immense gratitude.1 She highlights the best parts of the book and graciously sets aside its shortcomings. She expertly summarises my arguments on what marketised global justice is, how it came about, and how to resist it. Graf poses important questions under the headings of History and Resistance that are an honour to respond to. On the intervention that the book makes regarding the history of international criminal law (ICL)—as part of the history of marketised global justice—Graf poses three questions. I read these questions not only as asking for clarifications about the type of historical intervention Marketing Global Justice is making, but also as demanding a sharpening of the description of the relationship between marketised global justice and capitalism. First, Graf asks: Is there more than a temporal coincidence between neoliberal market rationality and marketised international criminal law? The short answer is: ‘yes’. Marketised international criminal law ‘encases’ the market in the sense that injustice is disassociated from (democatically determined) distributive justice. Marketised ICL is ‘put to work’ in the interests of capital. I return here to Quinn Slobodian’s memorable description of the ‘encasing’ of the market in Globalists because it so excellently describes the project of neoliberalism as one of institutions.2 What makes Slobodian’s book so immensely readable is of course the intellectual history behind these institutions. Describing familiar international institutions like the World Trade Organization (WTO) as emerging from peronal projects doggedly driven forward by certain individuals (including Ludwig von Mises, Friedrich Hayek, and Ernst Ulrich Petersmann) makes for compelling reading. Like international economic law—the institutionalisation of which Slobodian describes as beginning in the wake of the First World War—ICL too has been a discipline shaped by its institutions. The monopolising of power and resources in the establishment of the WTO and the monopolisation of power and resources in the establishment of the International Criminal Court (ICC) are set against the background of the same historical material conditions. They were both institutional projects preventing redistribution, and relatedly projects of keeping democracy from below at bay. Neoliberal market rationality is a part of ICL and, in the institutionalised form it has taken since the 1990s, vice versa. In other words, neoliberal market rationality and ICL are both part of the same material conditions of capitalism and its contradictions. Tracing the enabling of capital flows through the institutions of international economic law, finance, and investment law is perhaps more perspicuous; but the same conditions have also shaped ICL.