Hierarchies as law

Where do we start when thinking about law and social transformation and how do we articulate and address resistance to the reproduction of the concentration of power, wealth, authority, and prestige in the world? Contemporary legal argument still too often relies on theories and on conceptual thinking. Alternatives are presented as anti-neoliberal, anti-capitalist, anti-efficiency, anti-free-movement, anti-imperialism, anti-autonomy, anti-economics, and anti-law. I critique the Third World legal scholarship for its lack of an adequate picture of subordination and for misrepresenting power and the center-periphery relationship. Economic theories or capitalism are mere signifiers for the (hierarchical) reality that needs to be constantly constructed and reconstructed. I further argue that democratic theory is unable to adequately address social change and that both constitutional theory and critical legal thought often misrepresent power relationships. Reliance on false distinctions is too often a part of scholarly endeavour. David Kennedy, for example, relies on Karl Polanyi's distinction between politics and economics, a typical example of conceptualism of contemporary legal thought that distinguishes between protectionist and autonomy claims or theories. Rather than pursuing one or the other type of claim, the question should rather be whose protectionist and whose autonomy claim we are pursuing. Law is often understood as the problem, and political capacity and contestation as the solution to social problems. David Kennedy’s project of expertise, mistakenly perceives political incapacity as the central problem of global governance. I argue that his work does not adequately address structural subordination, and misrepresents power, ideology, center-periphery relationship and governance. It also frequently restates the public-private distinction. The problem of today’s globalized society is not “economic interests,” nor is the central problem the lack of the political. Nor can critique be the goal of our work, as David Kennedy suggests. Instead of a pursuit of “the political” or challenging “the economic,” instead of resisting particular claims or theories, we need to resist unjust—hierarchical—reality. How do we construct and reconstruct reality? I argue that law and governance should be understood as a plethora of hierarchies, as a constant hierarchical struggle. There are three elements of the legal structure: hierarchies (constituted by injury and recognition), ideology, and tools. Injury and recognition are the lowest common denominator of the legal structure and of global governance. Social change should be understood as a reversal of the existing global hierarchical structure. Center-periphery relationship is a macro relationship of micro hierarchies. Tools need to be constructed that reflect and resist the injuries we have not yet unearthed or those we simply disregard, such as a doctrine of goods dumping on the internal market that I am proposing.

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