Digression on the responsibility to protect: “The inevitability of Law and Economics” ?
In “Protection in the shadow of empire”, Anne Orford gives a post-colonial critical account of the concept of “responsibility to protect”. As suggested in the title, a quite clever pun, she argues that the R2P only comes as a theory schematizing already existing practices carried on by former imperial powers. Although a change to “sovereignty as control” to “sovereignty as responsibility” appears like a novelty, it is in fact a long established tradition, especially in the political theory of the social contract. Convening Hobbes and Carl Schmitt, she points out that both theories arose when the State’s legitimacy was being questioned by external forces (the Church or the Bolshevik revolutions). My questions very much deal with the concept of responsibility to protect but placed in a different context.
Indeed, Orford says that “the turn to protection does not have a predetermined political effect and can give rise to a range of projects directed towards quite different ends”. If protection is the raison d’être of a State, then, recourse to the “state of emergency” when the security of the State and the safety of its people are threatened makes perfect sense. It enables the State to take all appropriate measures to ensure the safety of the nation during a limited period of time. It also entails the suspension or limitation of some civic and political rights such as the freedom of assembly. Following the “Paris attacks”, the French President announced that France was at war and the emergency state was declared. However, a few months later, during his New Year’s speech, he also mentioned a second type of emergency state; a state of “economic emergency”. This is mainly so because of the aftermaths of the crisis and the high unemployment rate. In Venezuela, a country that recently made the same statement, “state of economic emergency” is enshrined in the constitution. But in France, it is not.
In my opinion, what it does is to place economy on an equal footing with security, and consequently, opposing it to the more general concept of “right”.
If the state of security emergency requires the suspension and/or limitation of civil and political rights, does its economic counterpart require suspension and/or limitation of economic and social rights? From where I stand, this statement seems paradoxical for the reason that there is an emergency situation precisely because social and economic rights are not being respected/ implemented as they should be.
So according to what standard the emergency of the economic situation is being evaluated? The welfare of the people OR, similarly to the political state of emergency aiming to protect the state’s interests, the State’s economic interests? By whom are these interests being set up? The people? The State? A supra-national entity? Or an invisible hand?
After the securitization of the State raison d’être as theorized by Foucault, should we consider this a symptomatic instantiation of an “economization” of the State raison d’être? As legal scholars, I think these questions are worth asking in order to understand the context in which law operates: as Frank Easterbrook rightly said, the connection between law and economics do seem inevitable.
My initial thoughts on this are that :
Whilst it can’t be denied that trade has existed for centuries, it should be recognised that the “market-state” in it’s current formation exists increasingly by the logic of neo-liberalism. Although the ultimate goal of a free market is a deregulation of the law, this is somewhat paradoxical in that, as you say – the law is in an inextricable relationship with the economy. However, what this seems to be is a clever game that corporate lawyers can play as they constantly evolve and move with legislation in ways that protect the market.
My concern is that a declaration of economic emergency adds a certain modality that serves to justify a consequent impingement of liberties and particular sanctions by the state. Furthermore, I am cynical of the idea that the interest of the state in protecting the economy (at the expense of other societal concerns) is somehow altruistically likely to benefit society. At a glance it seems that that the law and economy operates in such a way as to reinforce and protect itself, and avoid critique or attempts at reconfiguration. There is an assumption that the market state is something integral to our being, but it has and does constantly evolve…and so a scholarly attempt to deconstuct the role of the law and ideology within the way the ‘market-state’ has manifested, is perhaps crucial.
I would like to provide a very brief idea on your thought which could be described as a suspicious on “state of economic emergency”. In terms of “right” which stems from social contract theories and liberal foundations, of course, the notion of economic emergency might be seen as out of trajectory of the discourse. It, however, will not be the first time to hear about “market-states” in recent realm of politics. This idea of market-states is not the sole invention of modern politics, rather it has been developed through the Antiquity and the Middle Ages. The feudal system of rule or fraternity could be good examples of the development of market-states. The individual has been participated in these economic systems – fraternity, guilds, etc. – for a long time; in the system of market-states, individuals are still working as the most significant actors in the market/economy (even though there are various numbers of others actors are appeared). Economy and politics have been developed together through an age-long process; even if politics and economics were completely separated through modern era, but they still have a strong correlations. According to Locke, the property right is also one of constituent of the right of individual. We discussed about the role of law – protection or control – through the course and other posts, it may give a small hint to the state’s declaration of economic emergency. All the factors you mentioned above – such as, the welfare of the people, to protect the state’s interests, or the State’s economic interests – are strongly impacts on the state’s decision on the state of economic emergency since the state has responsibility upon not only civil society (the collectivity of the individual), but also the market system (in which the individual has significant role within it). The state sometimes needs to compensate the failure of market economy to protect its actors. To protect the right of individual and control the individual well, it would be inevitable to intervene in market or economy from the perspective of the state. My argument is slightly vague, but under the system of current market-states/market-economy, there is a kind of inevitable relationship between law and economics existed. It might be much better to discuss further later.