Reflecting on ‘Linkage’: Cognitive and Institutional Change in The International Trading System
| Date | 01 July 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00651.x |
| Published date | 01 July 2007 |
| Author | Andrew T. F. Lang |
THE
MODERN LAW REVIEW
Volume 70 July 2007 No 4
Re£ecting on‘Linkage’: Cognitive and Institutional
Change in The International Trading System
AndrewT. F. Lang
n
Since the creation of the World Trade Organisation, the international trading system has lived
through a decade of sustained and vocal public criticism. International trade lawyers have made
signi¢cant e¡orts to engage, evaluate and respond to these critiques. This article asse sses the
adequacyof these responses, focusingon the so-called‘trade and’debate ^ or ‘trade linkage’debate^
in international trade law.While th is debate has producedvaluable insights, it tends to legitimate
and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing
on the insights of economic history, an alternative mode of scholarship is proposed ^ at once
historical, critical, constructivist and institutionalist ^ to augment the current literature in the
‘trade and’ debate. Concretel ines of enquiry areproposed which, if followed, would help inter-
national trade lawyersto respond more productivelya ndwith greater legitimacy to contempor-
ary public critiques of the internationaltrading order.
INTRODUCTION
Since the creation of theWorld Trade Organisation,the international trading sys-
tem has lived through a decade of sustained and vocal public criticism. Interna-
tional tradelawyers,who over the same period have become a farlarger and more
diverse group than in previous periods of the ¢eld’s history, have had their think-
ing profoundly a¡ected by this criticism, as they have attempted to engage with
it, evaluate it, and respond to it.The purpose of this paper is to assess the ways in
which the¢eld of internationaltrade law has responded to‘anti-globalisation’
1
cri-
tiques of the international trading order. My subject is not, therefore, thecritiques
themselves, but the debates which have sprung upin i nternational legal circles by
wayof response to them.More particularly, I concentrate on what has come to be
described as the‘trade and’ (or ‘linkage’) literature,
2
which is the most important
n
Lecturer,Law Department, London School of Economics a nd PoliticalScie nce.
1 The term‘anti-globalisation’ is an unsatisfactory term for many reasons: noton lydoes it tend to
overstatethe degree of uni formityof these critiques, but it is also far from clear that many voices
labelled as such are actually ‘anti-globalisation’ at all. Nevertheless,I will us e the termas there is
to my knowledge no better term currently in widespread use.
2 I explain further below what I mean by the ‘trade and’ literature, but it is useful to refer at the
outset to a number of high pro¢le symposia which have gone a long way towards setting the
terms in which the debate is cast, including ‘The Boundaries of the WTO’ (2002) 96 American
Journal of International Law; ‘Linkage as Phenomenon: Linking the Trade Linkage Debate’
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 523^549
forum in which international trade law scholars have directly addressed many
anti-globalisation critiques of the trading system.
My speci¢c interest is in the discursive structures of the ‘trade and’ debate. In
other words, I do not directly evaluate the competing substantive arguments
which have been put forward by di¡erent trade lawyers in the debate, but rather
focus on the assumptions that are made, the questions that are asked, and the
concepts which are used to frame answers. Furthermore, while acknowledging
that the questions which have been addressed are clearly important, and that the
insights the debate has yielded are valuable, my task is a self-consciously critical
one. Instead of addressing the substantive questions raised by the literature, I ask
what questions are foreclosed by it. Instead of asking what the debate reveals
about the trade regime, I ask what it obscures. And rather than identifying and
following the paths down which thedebate seems to be heading, I draw attention
to alternative avenues which have been bypassed or ignored.
My argument can be stated very brie£y. Public debates about the trade regime
raise, in my view, fundamental questions about the nature and social purpose of
the liberal trade project, and the ‘meaning’ of free trade.They represent, in others
words, political contestation over the constitution and de¢nition of the trade
regime.Through the discourse of ‘trade and’, however, international trade lawyers
have re-characterised these debates as con£icts between the liberal trade project
and other social projects, between ‘trade values’ and ‘non-trade values’,
and between the trade regime and other international legal regimes. This re-
characterisation is not a neutral move. As I explain, in a variety of subtle ways, it
tends to work against and undermine criticisms of the trade regime, and make
transformative change to the international trading order signi¢cantly more di⁄-
cult to achieve.
Imakethisargumentintwomainparts.Inthe¢rstpart,Isetoutandjustify
two fundamental premises on which this argument rests. First, I draw on the
work of some economic historians to show that the concept of ‘free trade’ is not
static or stable but rather varies in meaning across time and across political cul-
tures.These di¡erent concepts in turn shape di¡erent trade policy regimes, and
inform the institutional and legal structures which accompany them. Secondly,
in the light of this material, I suggest that contemporary anti-globalisation
critiques represent a political struggle over the meaning of ‘free trade’, and that a
genuine engagement with such critiques requires critical and open discussion
of what free trade can and should mean in contemporary social and political
conditions.
The second part focuses on the‘trade and’ debate, ¢rst surveying the literature,
setting out its core conceptual structure, and noting its basic lines of enquiry. My
account focuses on what may be called the critical strands of the linkage debate
(1998) 19 University ofPennsylvaniaJournalof International Economic Law; and ‘Institutional Conun-
drums of an ExpandedTradeRegime’(2001) 7 Widener Law SymposiumJournal.See also the debate
in Volume1 of theWorldTrade Review: D. Esty,‘The World Trade Organization’s legitimacy crisis’
(2002) 1 WorldTrade Review 7; D. Esty,‘Rejoinder’ (2002) 1 WorldTrade Review 297; Henderson,
‘WTO 2002: Imaginary Crisis, Real Problems’ (2002) 1World Trade Review 277; K. Jones,‘The
WTO CoreAgreement, Non-trade Issues and Institutional Integrity’(2002) 1 WorldTradeReview
257. Part 2 below refers to much of the rest of the published literature.
Re£ecting on‘Linkage’
524 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(4)MLR 523^549
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