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GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW

Ugo Mattei, University of California Hastings College of the Law
Marco de Morpurgo

Abstract

The increasing expansion of international markets and the contextual decreasing role of states1 in the law-making process have made everyone aware of the existence and increasing importance of a ‘global law’. Within the current global scenario, the state, to whose authority the main sources of law would traditionally be traced back, has been challenged both from the ‘top-down’ by global law and from the ‘bottom-up’ by the local dimension, being confined to a relatively marginal role. What we can identify as ‘global law’ is not a single and coherent system of law drawing legitimacy from a well-defined legal and political process. Rather, a mixture of international and transnational instruments and processes—non-democratic institutional settings, power/force relationships and ethnocentric intellectual attitudes—stand behind the legal rules that are adopted by public and private actors at the global and (consequently)2 at the local level. This is not a new phenomenon, although its magnitude has recently been increasing. Within this framework, Western law has constantly enjoyed a dominant position during the past centuries and today, thus being in the position to shape and bend the evolution of other legal systems worldwide. During the colonial era, continental-European powers have systematically exported their own legal systems to the colonized lands. During the past decades and today, the United States have been dominating the international arena as the most powerful economic power, exporting their own legal system to the ‘periphery’, both by itself and through a set of international institutions, behaving as a neo-colonialist within the ideology known as neoliberalism. Western countries identify themselves as law-abiding and civilized no matter what their actual history reveals. Such identification is acquired by false knowledge and false comparison with other peoples, those who were said to ‘lack’ the rule of law, such as China, Japan, India, and the Islamic world more generally. In a similar fashion today, according to some leading economists, Third World developing countries ‘lack’ the minimal institutional systems necessary for the unfolding of a market economy. The theory of ‘lack’ and the rhetoric of the rule of law have justified aggressive interventions from Western countries into non-Western ones. The policy of corporatization and open markets, supported today globally by the so-called Washington consensus3, was used by Western bankers and the business community in Latin America as the main vehicle to ‘open the veins’ of the continent—to borrow Eduardo Galeano’s metaphor4—with no solution of continuity between colonial and post-colonial times. Similar policy was used in Africa to facilitate the forced transfer of slaves to America, and today to facilitate the extraction of agricultural products, oil, minerals, ideas and cultural artefacts in the same countries. The policy of opening markets for free trade, used today in Afghanistan and Iraq, was used in China during the nineteenth century Opium War, in which free trade was interpreted as an obligation to buy drugs from British dealers. The policy of forcing local industries to compete on open markets was used by the British empire in Bengal, as it is today by the WTO in Asia, Africa, and Latin America.

Suggested Citation

Ugo Mattei and Marco de Morpurgo. "GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW" BOCCONI SCH. L. STUDENT-ED. PAPERS, No. 2009-03/EN (2009).
Available at: http://works.bepress.com/ugo_mattei/35