Market Civilization, New Constitutionalism and World Order

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LAW 328 Green Legal Theory

Notes

key ideal-typical features of neo-liberal forms of state, and three principal elements of new constitutionalism

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law is seen as an active governing technique that is productive of political authority: it is seen as central to the constitution of the power of capital as well as neo-liberal forms of state, or political and civil society

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uneven, multi-scalar, crisis-driven and contradictory neo-liberal redefinition of the political on a world scale, consistent with the spread of an emergent global market civilization

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enclosure

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geopolitical effort to attenuate and com- modify democracy

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for example in Latin America, many of the principles of neo-liberalism are now openly repudiated, and innovative, progressive constitutional and political forms are being created, premised upon what has been called twenty-first-century socialism, involving new regional organizations and new principles of military security to deter imperial intervention - e.g. the Bolivarian Alliance for the Americas.

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need to attenuate, incorporate, co-opt or depoliticize democratic forces and potential opposition.

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Mechanisms such as judicial review are precisely constructed as antidotes to democracy to preserve the oligarchy of private property by declaring the economic as a 'private sphere' outside of politics, and as a realm of 'freedom'.

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the neo-liberal state cannot monopolize power and authority, which is in principle decentralized: concentrations of privately controlled capital largely define the distribution of power.

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the law actively constitutes the very subjects to which it refers

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law is not merely an external mechanism of regulation but a constituent way in which social relations are lived and experienced

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power is decentralized in a liberal society principally through property

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neo-liberal state allows employers to create 'private' laws, the existence of which is accepted by the state since they derive from overriding legal principles that guarantee private property rights.

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firms are a form of private government since some of the legal rules they create are final and may not be reviewed by any public body.

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secure uncontested and extended protection for private property rights and investor freedoms on a world scale, locked in by basic laws, consti- tutions and treaties such that these rights are likely to stretch well into the future

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constitutional guarantees against expro- priation

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binding constraints on states' macroeconomic, trade, investment and industrial policies

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subordinate the state to dominant elements of civil society. This can mean a wide menu of mechanisms such as judi- cial review, federalism and multilevel governance

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extraordinary (extra-constitutional) measures to protect capital in situations of emergency.

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state agencies are made to compete with the private sector in, for example, service provision, and behave, at least in theory, as if they were marketplace actors.

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the three Cs of capital: creating investor confidence, which in turn rests partly on the credibility that governments will consistently assure political conditions

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these measures involve limiting mass popular-democratic or parliamentary influence over central aspects of economic policy

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The firm then used the arbitration mechanism in Chapter 11 ofNAFTA and won $130 million in compen- sation for expropriation from the federal government, despite the fact that its closure left severe environmental damage and significant costs to the province for severance and pensions

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global web of new constitutional trade agreements, principally in the form of over 3,000 Bilateral Investment Treaties

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Concentration of control in agriculture is also related to destruction of biodiversity and growing use of monocultures in seeds and crops. There is also evidence of ever-reducing gene pools for the animals used by agri-corporations, e.g. in North American agribusiness, cattle are artificially inseminated by a few 'super bulls' with ominous genetic implications.

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property rights over life forms

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depoliticization of the 'economy'

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trasformismo, or incorporation of political tendencies that might generate a broad-based political backlash against liberal governance

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consensus on the part of conservative, liberal and social democratic parties on the need for deeper neo-liberal reforms to flexibilize and further weaken organized labour and socialist forces

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economic questions are made to appear as technical questions beyond political contestability.

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