Why Trade Law Needs a Theory of Justice

I. DOES TRADE LAW NEED A THEORY OF JUSTICE? I'd like to begin by noting what today's question itself might imply. It may suggest to some that trade law does not already have a theory of justice, and to others perhaps even that it does not need one. Both implications would be mistaken. In my remarks I would like to make four points: first, that trade law necessarily involves theories of justice; second, that while the notion of trade and justice can raise several objections, these objections can be answered; third, that contemporary trade discourse reveals that in fact we already have a dominant theory of trade justice, utilitarianism, which needs to be "outed" as such and seriously re-examined; and finally, to illustrate the kind of work that is going on, and needs to go on, if we are going to take justice seriously in trade law. (1) Let me take a first casual pass at our question by juxtaposing a different one: does our federal income tax law or health care delivery system need a theory of justice? To this question we generally answer yes. Our income tax and health care systems are both fundamental social institutions involving significant resources, and both systems involve decisions about how those resources are allocated. In such cases we intuitively want to know if those decisions are fair. Theories of justice play an essential role in answering that question. Tax law and health care are two areas in which academics and policy makers routinely refer to principles of justice in working out their intuitions about fairness, and in analyzing, criticizing, and proposing reforms for these institutions. In a similar sense, I think we would be inclined to say that trade law also needs a theory of justice. The international trade law system (for example, the WTO) involves significant resources, and decisions about how those resources are allocated. So, as with tax law or health care policy, we intuitively want to know, is it fair? However, to go beyond this immediate intuitive level and answer in a more rigorous way, we need to consider a few elements of political theory: what does justice involve? What does a theory of justice do? One way to understand the idea of justice is as "right order." Through their decisions, social institutions produce some kind of social order, and we have many tools and disciplines with which to evaluate this order. The task of justice, in particular, is to ask whether these social decisions and institutional outcomes are "right" and consistent with a community's core values. How do we know if the inquiry of justice is relevant to a given situation? One way is to look at whether the situation involves public decision making about social goods. When people use social institutions to make decisions allocating social goods, this is the domain of justice. The decisions which these institutions make, and their method of decision making, are evaluated according to principles of justice. Trade law is one such social system, part of what Rawls calls the "basic structure"--that set of major institutions, including economic arrangements, which together distribute fundamental rights and duties and determine the division of the advantages from social cooperation. If we think about the scope of WTO law, for example, we can see that trade law involves numerous decisions allocating social goods such as wealth, economic opportunity, trade-related knowledge, preferences, market access, etc. To say that trade law does not need a theory of justice suggests that we need not consider the normative implications of this allocative system, that the question of fairness is irrelevant. We don't say that about any other social institution--why would we say that about trade law? II. OBJECTIONS TO THE APPLICATION OF THEORIES OF JUSTICE TO TRADE LAW There are several kinds of objections one can make to the idea of justice as applied to international institutions. …