Free Trade: What is it Good For? Globalization, Deregulation, and ‘Public Opinion’
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00454.x |
| Published date | 01 March 2009 |
| Author | Emily Reid,Jenny Steele |
| Date | 01 March 2009 |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 1, MARCH 2009
ISSN: 0263-323X, pp. 11±31
Free Trade: What is it Good For?
Globalization, Deregulation, and `Public Opinion'
Emily Reid* and Jenny Steele**
Deliberation is an essential element in legitimate and sound decision
making. The deliberative ideal has much resonance with ideas of
`localization', employing the value of local and applied knowledge.
Participation is also of particular value under globalization. We argue
that the capacity of the World Trade Organization (WTO) to absorb
and reflect participatory aspects of decision making is crucial to its
future legitimacy and status. Should the WTO be seen as one of the
darker forces of globalization? Or as an emerging institution of global
accountability? The latter depends upon recognition that the potential
deregulatory effect of the WTO is contingent, and that the liberaliza-
tion of international trade should enhance welfare, rather than be a
goal in its own right. Deliberative solutions require a strong public
sphere, and we therefore consider whether solutions based on
`empowered consumer choice', rather than public deliberation, are
unsatisfactory responses to the deregulatory impact of international
trade disputes and their outcomes.
INTRODUCTION: GLOBALIZATION AND THE
PARTICIPATORY IDEAL
In this paper, we are chiefly concerned with the fate of the participatory,
deliberative ideal in conditions of globalization. In theory, deliberative
approaches need not involve participation: they may simply entail broad and
open-textured consideration by decision-makers. But as a matter of both
principle and practice, deliberative approaches almost inexorably tend
11
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Southampton, Southampton SO17 1BJ,
England
esr@soton.ac.uk
** York Law School, University of York, Heslington, York YO10 5DD,
England
jcs507@york.ac.uk
towards public participation to one extent or another.
1
As Fisher explains,
the main virtue of deliberative approaches in their own terms is not neces-
sarily that they have democratic legitimacy. The core benefits of deliberative
processes, for their proponents, typically lie in their capacity to improve
decision-making, whilst at the same time helping to build consensus.
2
Indeed
it has been authoritatively proposed that the development of `sound science'
in the regulatory sphere is not only assisted by public consultation and
deliberation, but actually necessitates such consultation: `[t]he validity of
risk assessment is measured, ultimately, only by the confidence and trust it
inspires'.
3
Deliberation in general, and the core participatory variations of delibera-
tion in particular, have a particular resonance with the theme of `local-
ization'. Equally, since deliberation is an exercise in public reason, it would
seem to presuppose a strong public sphere. Can the benefits of deliberation
in its participatory form be secured or preserved given the emergence of
multiple levels of law and governance? Are such approaches the very
antithesis of globalization?
1. Globalization and the public sphere
We have already begun to outline some key features of the deliberative ideal
itself. In the next section, we will expand a little further on this. Although this is
well-trodden ground, it is particularly important to be clear about the supposed
benefits or virtues of deliberation, especially in its core participatory form, if
we are to assess the challenges posed to the ideal and the changing roles
currently being assigned to `the public' in decision-making. Despite increased
rhetoric of citizenship and participation in some post-national contexts ±
particularly the EU ± it still needs to be asked whether the challenges posed by
economic globalization are actually an insuperable obstacle to fulfilment of the
ideal. Alternatively, have important elements of the practice of public
deliberation been displaced beyond the reach of legal frameworks?
12
1E.Fisher, Risk Regulation and Administrative Constitutionalism (2007), offers an
admirable account of a `Deliberative-Constitutive' (DC) paradigm (in this instance, of
public administration), and contrasts this with a `Rational-Instrumental Paradigm' (at
pp. 26±35). The DC paradigm is defined without reference to participation as a
component element: the hallmark of its approach to democracy is identified as
deliberation rather than participation (p. 33). This suits the author's general purpose
of moving beyond the democracy-science debate. Even so, Fisher's discussion of DC
processes refers to the importance of dialogue and accepts the likely necessity of
involving a `wide array of actors'.
2J.Steele, `Participation and Deliberation in Environmental Law: Exploring a
Problem-Solving Approach' (2001) 21 Oxford J. of Legal Studies 415±42.
3L.Busch, R. Grove-White, S. Jasanoff, D. Winickoff, B. Wynne, `Amicus Curiae
Brief: Submitted to the Dispute Settlement Panel of the World Trade Organisation in
the case of EC: Measures Affecting the Approval and Marketing of Biotech Products'
(30 April 2004) at 20.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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