Transnational Legality and the Immobilization of Local Agency

Abstract

▪ Abstract The organizational logic of the legal rules and institutions of economic globalization treats as suspect economic regulation issuing out of the democratic processes of national and subnational communities. In this way, economic globalization can be likened to state formation: as a cultural project with the object of actively suppressing alternatives. While undermining the regulatory capacity of local publics to tame markets, transnational legality prefers to draw on the normative ideas of comparative advantage, consumer freedom, and the rule of law. These discursive strategies prove an unstable basis for legitimation without the critical supports provided by national states in gaining and maintaining the consent of local publics. As the findings of a recent international arbitration panel indicate (CMS v. Argentina), transnational legality prefers to view the local as a threat to the maintenance of its political-economic order, one of open borders free of rent-seeking public regulation. This will be the case even when states, like Argentina, take measures to mitigate the hardships of a severe economic downturn. Some critical theorists, like Hardt & Negri in Empire, similarly relegate the local to a marginal place without appreciating its contradictory but sustaining role in globalization's future. Such theoretical interventions, operating in conjunction with the disciplining effects of globalization's legal order, help to immobilize, rather than empower, resistance to the monocultures of transnational legality. The question remains whether the shaky foundations upon which the legitimacy of transnational legality are structured will prove less durable than its immobilizing effects.