University of Missouri at Kansas City Law Review
globalization, rule of law, comparative advantage, WTO, GATT, subsidies, intellectual property
In this article, we observe the legalized character of the phenomenon popularly called “globalization.” We first examine what it means to be a legalized phenomenon and observe that an important part of legalization is legitimation. In domestic legal regimes, legitimation is accomplished through the Rule of Law, which makes certain claims about the nature of the society of which the legal regime is a part. Simply stated, the Rule of Law claims that a legal system is legitimate if its rules are definite and predictable and are applied in a general, impartial, and non-retroactive manner. In the international trading system of which globalization is the legalized regime, the legitimizing role is played by the so-called law of comparative advantage, developed originally by David Ricardo. Simply stated, the law of comparative advantage claims that all nations, not just the richest or most powerful, can profit from unhindered international trade, since each country can exploit and thus profit from its own particular advantages, even while it pays others for goods produced elsewhere. This globalized legitimation, similar to domestic legitimation, makes certain claims about the nature of the system of which the globalized regime is a part. We then examine what particular features of globalization are supported by the law of comparative advantage, and we note how the legitimating role of that law conceals the true nature of those features. Finally, we observe that globalization and those features we have examined produce, contrary to their express claims, disastrous global disparities in income and welfare. We conclude that it is the legitimizing functions of the law of comparative advantage that allows globalization to proceed in the manner it does while claiming to do quite the opposite. The legitimizing function of the global regime thus prevents a true understanding of globalization's nature.
Michael Henry Davis, Legitimacy, Globally: The Incoherence of Free Trade Practice, Global Economics and their Governing Principles of Political Economy 69 University of Missouri at Kansas City Law Review 733 (2001)