Social in/Equality and International Trade Reformisms of Fear

This article is a contribution to a symposium discussing Prof. Gregory Shaffer's recent article, "Retooling Trade Agreements for Social Inclusion" (1 U. ILL. L. REV. 1 (2019). Prof. Shaffer argues that international trade law and institutions, primarily the World Trade Organization, have been oblivious to social inclusion, and offers a rich lineup of potential reforms that might cure this problem and help the multilateral trade system regain its legitimacy and functionality. Prof. Shaffer builds on a critique of the ‘two-step’ model he identifies as the historical practice of international trade law, in which the first step consists of international economic liberalization through legal hand-tying in trade agreements, and the second step consists of dealing with local adjustment costs through domestic measures. The ‘(re-)tool-box’ is a set of reforms to international trade law that might address ‘social inclusion’ as part and parcel of the first step. Yet, in my reading, many of Prof. Shaffer’s proposals, e.g., those relating to social security,12 job ‘flexicurity,' and trade adjustment policies, are firmly within the ambit of independent national policy-making, and it is uncertain how the introduction of international agreements regarding such measures, even if subscribed to by states, would promote their effective adoption. In my view, however, perhaps theoretically conservative yet socially progressive, social policy remains first and foremost the domain of domestic decision—and policy-making—as I believe it is and certainly can be, in fact, and furthermore as it should be, as a normative matter.

In the article, I first re-narrate Prof. Shaffer’s preoccupation with ‘social inclusion’ as a call for social equality, building on and juxtaposing the recent work of legal historian Samuel Moyn and others, and explain the opportunities and the difficulties in this re-narration in terms of economic and social human rights, in particular the tensions between equality and sufficiency, in ways that distance ‘social inclusion’ from international trade law as such. Second, I will embrace political historian Pierre Rosanvallon’s concept of a “reformism of fear, and argue that both the backlash against international economic law and the suggestions for retooling it constitute such reformisms of fear, although coming from very different directions. Third, I will specifically engage with one of Prof. Shaffer’s policy proposals, the idea of ‘social antidumping’ mechanisms, arguing that such instruments would not be effective in promoting social equality, whether in the global South or the global North, thus constituting the wrong treatment. The conclusions will call for a strengthening of state institutions and domestic networks for reintegrating the not inconsiderable segments of society that feel marginalized by economic change.