Stephen Gill and A. Claire Cutler, eds, New Constitutionalism and World Order, Cambridge University Press, 2014. ISBN 978-1-107-05369-4 hbk. Pp. xviii + 368.
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RATING: 60
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This review is excerpted from a longer one that appeared in Capital & Class 41, 1, 2017, pp. 168-172.
Stephen Gill's account of contemporary world order in terms of new constitutionalism, disciplinary neo-liberalism and market civilization is a standard point of reference in critical IPE, as is Claire Cutler's work on international law, so this volume is a welcome collaboration. It is in six sections (each with a summary introduction): concepts; genealogy, origins and world order; multilevel governance and neo-liberalization; trade, investment and taxation; social reproduction, welfare and ecology; and globalization from below and prospects for a just new constitutionalism. There is a useful glossary, and editorial standards are high. The editors’ joint introduction defines the 'new constitutionalism of disciplinary neoliberalism' as a political project intended to extend and deepen the power of capital and to extend capitalist market civilization (6), and a de facto governance structure for the global political economy (13). It is judged to be 'supremacist' (serving partial or particular interests, and experienced by subordinates as involving coercive, corrupt forms of rule that lack legitimate appeal and credibility) rather than hegemonic, and therefore open to critique, contestation and resistance.
Political economy, whether radical, critical or international, has not always paid due attention to law and constitutionalism. One of the strengths of the volume is that it brings these aspects of global governance together in critical accounts of specific areas of central importance – notably in the run of chapters in the second half of the volume, which covers international investment law (David Schneiderman), trade agreements and public services (Scott Sinclair), international taxation (Dries Lesage, Matthias Vermeiren and Sacha Dierckx), social reproduction (Isabella Bakker), indebtedness (Adrienne Roberts), social policy (Janine Brodie) and the environment (Hilal Elver). Other chapters, spread across different sections, deal in greater depth and detail with constitutionalism: Christopher May succinctly profiles Kelsen’s idea of the Grundnorm (that there must be a basic political commitment prior to introduction and development of the rule of law); Tim de Muzio engagingly but idiosyncratically traces the genealogy of new constitutionalism back to the American constitution, Ran Hirschl argues that judicial review and the general juridification of politics are driven by 'the economic system's existential fear of, and response to credible threats posed by, the spread of democracy' (96-7); and Gavin Anderson reviews constitutionalism as critique, contrasting this with the ‘constitutionalism as project’ approach embodied in the new constitutionalism of disciplinary neoliberalism. Along with the alternative takes offered by Saskia Sassen, Adam Harmes, and Neil Brenner, Jamie Peck and Nik Theodore, a semi-detached concluding reflection on security-related themes from Richard Falk, and the two chapters contributed individually by Gill and Cutler respectively, there is ample material to assess the merits of Gill’s version of new constitutionalism.
Gill sees the world order as fundamentally US-centric and US-led – it is a project of rule associated ‘extending the power of capital and the geopolitical reach of the United States (14), and ‘associated with US and G7 strategic objectives since the 1970s’ (37). An important part of its problematic – central to his chapter here – concerns its relationship with Western liberal democracy: ‘the new constitutionalism now involves the need to attenuate, incorporate, co-opt or depoliticize democratic forces and potential opposition’ (34). In theoretical terms, it is grounded in Coxian, neo-Gramscian critical IPE, and approaches to surveillance originating with Bentham and explored by Foucault. It treats international organizations by and large as arms of US power, and makes no attempt to explore potential contradictions or divergences between US power on the one hand and ‘global’ capital on the other. For all its invocation of the world market, it does not explore its evolution over the last quarter century in empirical terms, and it pays no more than passing attention to China and India. It barely explores the transformation of global production through ‘fragmentation’ and the rise of global production chains, despite their centrality to the world market for the whole period. Above all, for all its focus on the disciplinary power of global capital within the new constitutionalist frame, it has virtually nothing to say about the most fundamental of social relations – that between capital and labour, and especially the legal and regulatory strategies developed to enable the local and global governance of labour and the development of the social relations of production.
These features, which some will regard as weaknesses and others may not, place Gill’s distinctive synthesis firmly within critical IPE. In contrast, Cutler takes value theory as a point of departure to explore ‘the globalization of the commodity form of international law as a necessary dimension of a transnational market civilization that is unifying diverse peoples and places through the logic of commodification’ (45), while Schneiderman draws on ordoliberalism as well as Foucault. Gills’ framework is well able to identify the ‘Western’ legal, constitutional and regulatory mechanisms that ‘lock in’ advantages to capital, and aligns well enough with the work of Harmes, and Brenner, Peck, and Theodore (for all the energy with which the latter seek to differentiate themselves). At the same time it offers a static and linear narrative, in which the whole period of transformation of the world market since the late twentieth century is depicted as a continuation of the ‘status quo’ of post-war US supremacy. This greatly over-simplifies the logic of competitiveness in the global economy, to which the US is as subject as anyone else. What is missing, in short, is a nuanced understanding of the material underpinning of the new constitutionalism in the anything but linear or US-centred interplay between class struggle, the incessant division of labour and uninterrupted technological revolution on a global scale, inaugurated with the industrial revolution and reaching a genuinely global scale only in recent decades.
The absence of such a focus is felt most strongly in the chapters that address issues of political economy most directly, on social reproduction and indebtedness respectively. Elsewhere in the volume, contributors are more likely to acknowledge Gill’s approach as one among others and go their own way than to work within it, with the result that the volume gains in breadth what it loses in coherence.
Stephen Gill's account of contemporary world order in terms of new constitutionalism, disciplinary neo-liberalism and market civilization is a standard point of reference in critical IPE, as is Claire Cutler's work on international law, so this volume is a welcome collaboration. It is in six sections (each with a summary introduction): concepts; genealogy, origins and world order; multilevel governance and neo-liberalization; trade, investment and taxation; social reproduction, welfare and ecology; and globalization from below and prospects for a just new constitutionalism. There is a useful glossary, and editorial standards are high. The editors’ joint introduction defines the 'new constitutionalism of disciplinary neoliberalism' as a political project intended to extend and deepen the power of capital and to extend capitalist market civilization (6), and a de facto governance structure for the global political economy (13). It is judged to be 'supremacist' (serving partial or particular interests, and experienced by subordinates as involving coercive, corrupt forms of rule that lack legitimate appeal and credibility) rather than hegemonic, and therefore open to critique, contestation and resistance.
Political economy, whether radical, critical or international, has not always paid due attention to law and constitutionalism. One of the strengths of the volume is that it brings these aspects of global governance together in critical accounts of specific areas of central importance – notably in the run of chapters in the second half of the volume, which covers international investment law (David Schneiderman), trade agreements and public services (Scott Sinclair), international taxation (Dries Lesage, Matthias Vermeiren and Sacha Dierckx), social reproduction (Isabella Bakker), indebtedness (Adrienne Roberts), social policy (Janine Brodie) and the environment (Hilal Elver). Other chapters, spread across different sections, deal in greater depth and detail with constitutionalism: Christopher May succinctly profiles Kelsen’s idea of the Grundnorm (that there must be a basic political commitment prior to introduction and development of the rule of law); Tim de Muzio engagingly but idiosyncratically traces the genealogy of new constitutionalism back to the American constitution, Ran Hirschl argues that judicial review and the general juridification of politics are driven by 'the economic system's existential fear of, and response to credible threats posed by, the spread of democracy' (96-7); and Gavin Anderson reviews constitutionalism as critique, contrasting this with the ‘constitutionalism as project’ approach embodied in the new constitutionalism of disciplinary neoliberalism. Along with the alternative takes offered by Saskia Sassen, Adam Harmes, and Neil Brenner, Jamie Peck and Nik Theodore, a semi-detached concluding reflection on security-related themes from Richard Falk, and the two chapters contributed individually by Gill and Cutler respectively, there is ample material to assess the merits of Gill’s version of new constitutionalism.
Gill sees the world order as fundamentally US-centric and US-led – it is a project of rule associated ‘extending the power of capital and the geopolitical reach of the United States (14), and ‘associated with US and G7 strategic objectives since the 1970s’ (37). An important part of its problematic – central to his chapter here – concerns its relationship with Western liberal democracy: ‘the new constitutionalism now involves the need to attenuate, incorporate, co-opt or depoliticize democratic forces and potential opposition’ (34). In theoretical terms, it is grounded in Coxian, neo-Gramscian critical IPE, and approaches to surveillance originating with Bentham and explored by Foucault. It treats international organizations by and large as arms of US power, and makes no attempt to explore potential contradictions or divergences between US power on the one hand and ‘global’ capital on the other. For all its invocation of the world market, it does not explore its evolution over the last quarter century in empirical terms, and it pays no more than passing attention to China and India. It barely explores the transformation of global production through ‘fragmentation’ and the rise of global production chains, despite their centrality to the world market for the whole period. Above all, for all its focus on the disciplinary power of global capital within the new constitutionalist frame, it has virtually nothing to say about the most fundamental of social relations – that between capital and labour, and especially the legal and regulatory strategies developed to enable the local and global governance of labour and the development of the social relations of production.
These features, which some will regard as weaknesses and others may not, place Gill’s distinctive synthesis firmly within critical IPE. In contrast, Cutler takes value theory as a point of departure to explore ‘the globalization of the commodity form of international law as a necessary dimension of a transnational market civilization that is unifying diverse peoples and places through the logic of commodification’ (45), while Schneiderman draws on ordoliberalism as well as Foucault. Gills’ framework is well able to identify the ‘Western’ legal, constitutional and regulatory mechanisms that ‘lock in’ advantages to capital, and aligns well enough with the work of Harmes, and Brenner, Peck, and Theodore (for all the energy with which the latter seek to differentiate themselves). At the same time it offers a static and linear narrative, in which the whole period of transformation of the world market since the late twentieth century is depicted as a continuation of the ‘status quo’ of post-war US supremacy. This greatly over-simplifies the logic of competitiveness in the global economy, to which the US is as subject as anyone else. What is missing, in short, is a nuanced understanding of the material underpinning of the new constitutionalism in the anything but linear or US-centred interplay between class struggle, the incessant division of labour and uninterrupted technological revolution on a global scale, inaugurated with the industrial revolution and reaching a genuinely global scale only in recent decades.
The absence of such a focus is felt most strongly in the chapters that address issues of political economy most directly, on social reproduction and indebtedness respectively. Elsewhere in the volume, contributors are more likely to acknowledge Gill’s approach as one among others and go their own way than to work within it, with the result that the volume gains in breadth what it loses in coherence.