At the crossroads of an enduring economic crisis and a collapsed round of negotiations at the World Trade Organization, the time is ripe for a fundamental debate about the purpose of international economic law. Andrew Lang's World Trade Law after Neoliberalism: Re-Imagining the Global Economic Order aims to ‘clear the ground’ to do exactly this. The book makes two major claims. First, that neoliberalism has deprived the trade regime of an overarching purpose and led to a false notion of global trade as a legalistic and technical endeavour. Second, that human rights critique, which is often perceived as the main antagonist of the neoliberal trade regime, is in fact ‘inadvertently complicit in the basic neoliberal move of occluding the question of collective purpose in the conduct of international economic governance’ (p. 10). Lang's argument is far-reaching, as he fundamentally challenges the dominant normative orientation of trade law and its professionals, which arguably contributed to the regime's current legitimacy crisis (p. 9). He does not offer his own thoughts on the contours of a revised purpose, however. The book's primary aim is ‘to re-open space for the imagination and contestation of appropriate collective purposes on which to found the practice of international economic governance’ (p. 7).

The author strongly rejects the commonly held notion that neoliberalism and the international trade regime are historically aligned (p. 3). Instead he draws upon John Ruggie's characterization of the GATT as a compromise of ‘embedded liberalism’, which reconciles the values of multilateral trade and domestic interventionist policies.Footnote ¹ Embedded liberalism thus reflects the different concerns of the main negotiating states during the post-war years. While the United Kingdom charted a Keynesian approach and prioritized full employment and stability, the United States mainly sought to liberalize international trade and grasp the benefits of comparative advantage.Footnote ²

Accordingly, at the time of the GATT's drafting, international trade law ‘was primarily seen in purposive terms as an instrument of the broader purposes underlying the regime as a whole, rather than just as a mechanism for producing clear rules and therefore predictable behaviour’ (pp. 200–1). Through indeterminate rules, a diplomatic rather than a legalistic dispute settlement system, and a commonly shared mindset to sustain the embedded liberalism compromise, the GATT led to a significant expansion of global trade and economic prosperity without compromising social-democratic welfare systems at the national level. This changed with the economic turmoil in the 1970s, and the emergence of neoliberalism as the dominant ideology. Domestically, states shifted their priorities from economic stability and full employment towards inflation control and private investment (p. 222). Internationally, neoliberalism led to a new normative understanding of trade law. ‘Trade barriers’ became ‘trade distortions’, which meant that all domestic policies with an effect on international trade have now become suspicious and should in principle be eliminated (pp. 226–7). Whether the intention behind a certain measure or policy was legitimate increasingly became the subject of highly legalistic scrutiny by the GATT contracting parties and the dispute settlement system. Concepts like legal security and the neutrality and objectivity of law were introduced in the vernacular of the GATT/WTO, and replaced the diplomatic process of interpretation and application of trade rules. To borrow Oakshott's distinction, the normative orientation of the GATT/WTO legal framework was thus transformed from a telocracy – ‘an order devoted to the pursuit of some overall end, goal or purpose’ – to a nomocracy –‘a rule governed order not devoted to the attainment of some particular ends’.Footnote ³

The book lacks an explicit normative evaluation of the neoliberal paradigm. Instead the author notes in the preface that:

This, he states, is the ‘fundamental normative impulse’ for his project (p. viii). Nevertheless, the argument that a ‘disembedded’ economic regime is both unfair and unsustainable forms an important part of the intellectual tradition that Lang builds upon. It finds its roots in Karl Polanyi's notion of the ‘double movement’: the more a market regime becomes detached from the fabric of society, the louder the call for social policies and corrective mechanisms becomes.Footnote ⁴

The corrective countermovement – or ‘the language of resistance’ (p. 100) – that emerged after the neoliberal turn is predominantly framed in a human rights narrative. There are both practical and principled reasons for this. As to the practical reason, the author notes that human rights provide a common language to a diverse movement (p. 102). On a principled level, a human rights narrative elevates criticism of the trade regime to a higher degree of legitimacy, as it juxtaposes the practical project of trade liberalization to the ethical project of human rights (p. 101). The trade–human rights relationship has inspired a wealth of scholarship.Footnote ⁵ Generally, the assertion is that human rights law requires certain interventionist policies that the trade regime prohibits (p. 8). Lang claims that too much attention is devoted to positivistic analysis. Scholars, international human rights institutions, and NGOs focus on questions of fragmentation and coherence between two separate legal regimes. They thus take the rules of the respective regimes as ‘the starting point of discussion, rather than itself the subject of debate’ (p. 135). The protection of intellectual property is thus characterized as a ‘trade issue’ since the WTO has an agreement on the matter, while health is a human rights or ‘non-trade’ issue, since it is codified in human rights law. Instead of exploring strategies to limit or prevent ‘conflicts’ between trade and human rights, Lang argues that it is necessary to challenge the normative orientation of the trade regime itself.

To this end, Lang employs a constructivist framework and puts much emphasis on the ‘ideational’ dimension of the trade regime. He provides a rich and detailed analysis that certainly lives up to the book's promise. But what is not addressed is the question how a renewed common purpose would relate to existing legal structures. With regard to the GATT, and, to a lesser extent, the SPS Agreement and GATS, he demonstrates that the legal terms are ambiguous enough to be interpreted in different ways. The GATT has persisted through times of embedded liberalism and neoliberalism, and was interpreted accordingly without the need to formally amend it.Footnote ⁶ This can be attributed to the fact that from its inception, the GATT was a broad and potentially intrusive agreement but was initially not used as such (p. 208). An ideational shift was needed to fundamentally change the way its legal rules were interpreted and applied. The importance of this ideational shift is what makes Lang's sociological approach methodologically valid and his book such an important contribution to international legal scholarship on the issue. Although the book thus uses the ambiguity of the law to rebut the idea that trade law and neoliberalism are synonymous, it should not be inferred that a new common purpose could easily be sustained under existing rules. Lang's account is predominantly historical, and the question arises to what extent neoliberalism has become codified or even constitutionalized. If so, the WTO agreements would have to be amended for a new social purpose to function effectively.

Lang does not elaborate much on this point. He does, however, characterize the replacement of the consensus requirement in GATT dispute settlement by the reversed-consensus rule at the WTO as a constitutionalist development. The author argues that this was a ‘decisive move’ in the ‘institutional transformations’ which ‘had the effect of bringing the GATT's legal system much more in line with the values associated with this new way of thinking about law’ (p. 245). One of the basic objectives of constitutionalism is that it restrains the powers of public authority by means of higher-ranked (i.e. ‘constitutional’) rights that individuals are endowed with.Footnote ⁷ To the extent that this authority is democratically legitimized, there is an inherent trade-off between the process of constitutionalization (to which the changes in the dispute settlement system testify) and democratic contestation.Footnote ⁸ Limits on democratic contestation may not necessarily preclude a reimagination of the trade regime's purpose by international lawyers. Petersmann, however, also sees constitutionalism an important barrier to such debates, as ‘liberal trade policy would not fare well if every new generation of officials were permitted to rethink the case for free trade’.Footnote ⁹

In his critique of coherence as the dominant analytical framework with regard to trade and human rights, Lang could have more explicitly rejected the constitutionalist paradigm. He rather emphasizes the inefficacy of such ‘architectural solutions to the problem of international legal conflict and incoherence, in the absence of efforts to construct an appropriate ideational infrastructure which might support, sustain, and give meaning to such solutions’ (pp. 147–8). In my opinion, this underestimates the ideational dimension of constitutionalism itself, in so far as it prima facie rejects certain purposes of the trade regime. Petersmann, for instance, strongly rejects embedded liberalism as it balances trade rules with social policies which are domestically defined and not necessarily based on individual human rights.Footnote ¹⁰

Importantly, the author does not argue for a return to embedded liberalism. In fact, Ruggie himself noted embedded liberalism has severe limits, most importantly because it does not take the interests of developing countries fully into account.Footnote ¹¹ Lang's argument that a debate about the desirable purpose of the trade regime must precede more practical discussions on how this purpose can best be institutionalized is convincing. But to realize this ambitious goal, harsher critique on constitutionalism and other paradigmatic notions of institutional form is perhaps necessary.

In his introduction, the author calls upon all participants in the trade regime to engage in the ‘re-imagination’ of the global economic order. The process from imagination to implementation will take years, if not decades. Both embedded liberalism and neoliberalism benefited from outside events that then become relatively quickly entrenched in the trade system. The former was the practical compromise between diverging notions of economic order at the time when the post-war agreements were drafted, while the latter rose to prominence after severe and global economic shocks in the 1970s. But both were preceded by intellectual projects and political struggles, and grew organically. Polanyi once famously asserted that even laissez-faire was planned.Footnote ¹² Surely this gives hope to international lawyers who may embark upon the daunting project for which Lang has paved the way.