Law, Economics, and Conflict

Kaushik Basu,Robert C. Hockett

• Éditeur: Cornell Global Perspectives
• Année: 2021
• ISBN:
  9781501754838
• Sujet: Business
• Sous-sujet: Business generale

In Law, Economics, and Conflict, Kaushik Basu and Robert C. Hockett bring together international experts to offer new perspectives on how to take analytic tools from the realm of academic research out into the real world to address pressing policy questions. As the essays discuss, political polarization, regional conflicts, climate change, and the dramatic technological breakthroughs of the digital age have all left the standard tools of regulation floundering in the twenty-first century. These failures have, in turn, precipitated significant questions about the fundamentals of law and economics.

The contributors address law and economics in diverse settings and situations, including central banking and the use of capital controls, fighting corruption in China, rural credit markets in India, pawnshops in the United States, the limitations of antitrust law, and the role of international monetary regimes. Collectively, the essays in Law, Economics, and Conflict rethink how the insights of law and economics can inform policies that provide individuals with the space and means to work, innovate, and prosper—while guiding states and international organization to regulate in ways that limit conflict, reduce national and global inequality, and ensure fairness.

Contributors: Kaushik Basu; Kimberly Bolch; University of Oxford; Marieke Bos, Stockholm School of Economics; Susan Payne Carter, US Military Academy at West Point; Peter Cornelisse, Erasmus University Rotterdam; Gaël Giraud, Georgetown University; Nicole Hassoun, Binghamton University; Robert C. Hockett; Karla Hoff, Columbia University and World Bank; Yair Listokin, Yale Law School; Cheryl Long, Xiamen University and Wang Yanan Institute for Study of Economics (WISE); Luis Felipe López-Calva, UN Development Programme; Célestin Monga, Harvard University; Paige Marta Skiba, Vanderbilt Law School; Anand V. Swamy, Williams College; Erik Thorbecke, Cornell University; James Walsh, University of Oxford.

Contributors: Kimberly B. Bolch, Marieke Bos, Susan Payne Carter, Peter A. Cornelisse, Gaël Giraud, Nicole Hassoun, Karla Hoff, Yair Listokin, Cheryl Long, Luis F. López-Calva, Célestin Monga, Paige Marta Skiba, Anand V. Swamy, Erik Thorbecke, James Walsh

1

THE INTERIM BALANCE SHEET OF DEMOCRACY

A Machiavellian Memo

Célestin Monga

Every Tuesday morning, the heads of intelligence agencies and the national security advisor of the United States gather around the US president in the Situation Room at the White House in Washington, DC. They discuss the most confidential document in American politics: the list of people in various places in the world who are considered dangerous “threats” or “terrorists,” cannot or should not be captured, and are recommended for secret assassination. Sometimes the list includes the names, pictures, and profiles of American citizens and even minors whom national security experts in the executive branch of the US government believe should simply be killed—not arrested and brought to trial in the United States or elsewhere. The evidence against these suspects is classified and therefore not to be shown in court.

Sipping coffee or tea, drinking orange juice, and perhaps sharing cookies, participants at these meetings discuss counterterrorism strategies and plans, and casually advise the US president on which suspects should be killed according to a priority list, even when the suspects are far from any battlefield. The confidential list of suspects is officially called the “Disposition Matrix”—a name that even George Orwell could not have imagined in his famous novel 1984. Decisions are made quickly, after the president has listened for a few minutes to the opinions of his small staff around the table.

These Tuesday morning meetings were initiated and formalized during the administration of Nobel Peace Prize winner Barack Obama. Its members institutionalized the practice known as “targeted killings” and adopted new rules and regulations that grant whoever is the US president the sole power to decide who, among the nearly 8 billion people on earth, must die if suspected of terrorism. This group of nonelected public officers has been entrusted to make such uncontested and irrevocable decisions.¹ Regardless of the country in which one lives, all citizens of the world are required to trust the sovereign, ultimate judgment and wisdom of the US president. The president takes the oath to protect the United States against terrorism and is entitled to unilaterally kill anyone anywhere in pursuit of this sacred mission.² As noted by Greenwald, “The president’s underlings compile their proposed lists of who should be executed, and the president—at a charming weekly event dubbed by White House aides as ‘Terror Tuesday’—then chooses from ‘baseball cards’ and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark” (Greenwald 2013).

Since this information was made public, the world has learned that it was only the tip of an iceberg: The world has witnessed the deaths of countless civilians, often women and children, killed by drone strikes in Yemen, Pakistan, Somalia, Afghanistan, and elsewhere, who are simply referred to as “collateral damage.” Under a global-war theory, the entire planet is a battlefield. Targeted assassinations routinely take place in countries far from any war zone.

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The fact that President Barack Obama, a Harvard-trained lawyer and a former constitutional law teacher at the University of Chicago, felt empowered and entitled by American laws and regulations to make these life-and-death decisions in secrecy, and to select who should be executed without any charges in the court of law or due process, sheds light on the status of habeas corpus, liberty, and the implementation of the Bill of Rights in the country still widely viewed as the most “democratic” in the world.³ Perhaps not surprisingly, it has also been revealed that many secretive practices considered illegal, undemocratic, and unethical by human rights organizations had been going on in democratic countries. For instance, it was revealed that the US National Security Agency had wiretapped top German officials and many world leaders (including from democratic countries) for long-term surveillance during several decades and had eavesdropped on several French finance ministers and collected information on French export contracts, trade, and budget talks (Guardian 2015).

These revelations emboldened authoritarian political leaders around the world to assert and defend their own brand of democracy—many of them using the real or imaginary threats of global terror to justify the adoption of liberticidal measures. After all, if US presidents could unapologetically grant themselves the power to order the killing of anyone on earth without having to explain the reasons or provide evidence of guilt before any court of law, or secretly “dispose” of some people as they deemed appropriate—with indefinite imprisonment or death, why couldn’t other world leaders? If whoever holds power in the Oval Office can serenely wiretap the cell phones of several German chancellors or that of the president of Brazil, none of them suspected of being a potential “terrorist,” what would prevent the leaders of Russia, China, Indonesia, Venezuela, or Burundi from using similar tactics? If intelligence agencies in Western countries self-proclaimed as “democratic” could routinely conduct intelligence-gathering operations against foreign companies in the name of national security, why should other self-proclaimed democratic countries in Asia, Latin America, or Africa not do the same?

These questions go well beyond legal debates over the extraordinarily broad powers of the “leader of the Free World.” The issues underlying them also transcend the philosophical debates over the ethics of rules and practices by “democratic” governments expected to define themselves, in all circumstances, as nations where transparent and strong institutions are in place to ensure that the most sacred of all decisions (taking anyone’s life) are made within a system of checks, balances, and restraint. They are at the heart of the legitimacy and validity of democracy and freedom. Yet, despite some outrage (expressed mainly in intellectual circles), the dominant political reaction to these revelations and much of the literature on global political developments has generally been limited to analyses and commentaries on the mechanics of democracy. The focus has often been on problems with alternative, totalitarian systems of democracy (Lefort 1994), on problems with the process of democratic consolidation, on symptoms of its subversion by cynical political entrepreneurs (Levitsky and Ziblatt 2018), on “the rise of illiberal democracies” (Zakaria 2007, 2019), the functioning of political institutions, and so forth. Most recent studies of contemporary political events have not examined democracy itself, its relevance and feasibility after several centuries of implementation in an increasingly globalized world, where issues of economic governance have become more prevalent than almost anything else.

A few authors have recently acknowledged the theoretical challenges of democracy and its zigzagging path in recent decades (Gauchet 2002). Some have questioned its founding myths, highlighted its contradictions, and suggested its reinvention (Canfora 2006). Others have highlighted its superficiality, its high emotional content, its obscenity and even naiveté (Debray 2007). Optimists have recommended that democracy be freed from suspicion of being a mainly Western concept and instead be viewed as a credible organizing tool for the polity, beyond universal suffrage or even elections (Sen 1999; Agamben et al. 2009).

In the context of accelerated social transformations and a fast-changing world economy,⁴ with landmark technological innovations, the banalization of artificial intelligence, and the circulation of unprecedented amounts of capital across borders in search of returns, the proposition that democracy is an operationalizable ideal deserves closer scrutiny. Digital computation is “a force that produces and serializes subjects, objects, phenomena, but also consciences and memories and traces, which can be coded and stored and which are capable of circulating” (Mbembe 2019). Big Data and laws adopted by governments in powerful countries to have extraterritorial access to data offer new, easier possibilities for illegal political hacking and for legal political interference across boundaries—beyond the traditional, old-fashioned political interventions that have always taken place among nations.⁵ With the interconnectivity of economic and financial systems, increasingly sophisticated algorithms, faster and more powerful computational instruments, and progress in artificial intelligence, almost all countries now have unbridled access to national databases in other countries. This makes all nations vulnerable and all governments concerned.⁶

The largely muted reactions to revelations about the existence of the “Disposition Matrix” (also known as the “Kill List”), the general indifference to global eavesdropping of political and business leaders, the global acceptance of the death of privacy so that Big Data conglomerates can share information with totalitarian “democratic” governments in return for business opportunities,⁷ and the relativism (if not outright confusion) about standards of freedom across countries should force a rethinking of the meanings of democracy and even its possibility.⁸ Such idiosyncrasies are not taking place in Honduras, Equatorial Guinea, or Bhutan, but in the most “advanced democracy” and the most powerful country in the world—a country whose democratically elected president, Donald Trump, branded himself as a “stable genius” after doubt was expressed by his political opponents about his mental stability.

Some “totalitarian democracies” have emerged and are relying on these new, subtle forms of violence to perpetuate political and economic dominance. There is also a global uprising of angry, populist movements using digital means to express political opinions and to sway public opinion or even try to achieve political goals that they could not reach through the ballot box. The world is therefore getting used to violent forms of “freedom” and “democracies,” from above (totalitarian elites) and from below (populist movements). Both the new “democratic” totalitarianism and the “riot democracies” (démocracie de l’émeute, as French President Emmanuel Macron referred angrily to the Yellow Vest movement⁹) are fueled by economic and identity fears.

The issue here is not that democracy is under attack, as is often stated in the mainly nostalgic literature devoted to recent global developments. Some researchers and commentators appear too afraid to seriously consider what has become self-evident: Democracy is both a great moral horizon and an impossible system of governance to conceptualize, apply consistently, and rigorously across time and places. This is especially relevant in a world where perceptions of economic inequality are growing, a world with an ineffective system of global governance (Crozier et al. 1975) and persistent imbalances in voice and power distribution between advanced industrialized nations and developing countries.

This chapter is about the need for intellectual reckoning. It starts with a commentary on what I call the “great discordance”—the paradoxical gap between secular improvements in democrati...

Table des matières

• Law, Economics, and Conflict
• 1. The Interim Balance Sheet of Democracy
• 2. The Third Function of Law
• 3. Fighting Corruption in China
• 4. Overreliance on Law
• 5. Forgotten Markets
• 6. New Technology, Increasing Returns, and the End of the Antitrust Century
• 7. Law and International Monetary Policy Regimes
• 8. Why Economics Is a Moral Science
• 9. Exchange Configurations and the Legal Framework
• 10. Reimagining Governance through the Role of Law
• 11. Beyond Law and Economics
• About the Contributors
• Index