King's Student Law Review

Introduction

What does an epochal event do to political and legal theory, and vice versa? None of the theories of international relations have predicted the end of the Cold War. For the very reason that the Cold War stood for a political and territorial separation on the basis of ideology, it was – at least in theory – considered to be stable and static. A profound ideology – in political science likewise – always needs its opposite, always needs the ‘Other’. However, for the (academic) renewal movement after the collapse of the bipolar world order there seems to have been – on highways and byways of continued self-identification – still nothing new under the sun in international affairs. In his 1991 article ‘Turning to Market Democracy: A Tale of Two Architectures’,^[1] David Kennedy has – and so the reading of this paper – addressed precisely this critical relationship between political theory and its object of enquiry. Following this apparent inadequacy of the object of theory (epistemic) and theory as such (epistemological), Kennedy simply cannot otherwise approach the enthusiastic, energetic, developmental spirit right after 1989 with ‘irony’ or ‘scepticism’, for the scholarly movement reintegrated en passant ‘historical continuity’ with ‘historical ruptures’. The former is seen, following Kennedy, by the renewal movement as a perfection of already existing strands of (good and coherent) institutional or conceptual developments. The latter stands for ‘novel breaks within international law’.

On the basis of that framework, this paper attempts to elaborate that the underlying structure of both academic thought and its object of enquiry, as addressed by Kennedy, derives from a pattern of politicised science that might be labelled as ‘political epistemology’. This certainly touches upon a fundamental subject,^[2] but at least two questions remain for the purposes of this specific enquiry: What if the theoretical approach to analyse international relations was modelled on and dedicated to a polarity of ideology, a equilibrium of power, which was bashed by unforeseen circumstances? And, more importantly, how does theory – academic discipline and political thought – deal with something, which, at first sight, appears as historically unrelated reality?

In the introduction, Kennedy analyses precisely the preservation and the impact of this ‘narrative strategy’ of contemporary thought on realpolitik, seen as an interplay between ‘historical progress’ as continuity on the one hand and what the Greeks would have termed ‘epochē’ (what he calls ‘authentic rupture’[3]) on the other. He writes: The ‘rupture permits―even forces―the discipline to throw off the prejudices and commitments of its past and reunite with the forces of history’,[4] which ‘is an electrifying combination – historic break permitting both disciplinary continuity and renewal. The story of continuity preserves the discipline’s unity and conceptual integrity. … At the same time, the story of rupture ensures the discipline’s responsiveness to will and power.’[5]

Certainly, for a stable architecture of post Cold War Europe, this has far-reaching consequences and poses a priori certain restraints upon its institutional blueprint. Here, the international renewalism as a somehow mental tendency acts like a sovereign entity in interpreting and, most importantly, defining ‘spatially’ or ‘territorially’ what is inside or outside of an internal market, created by the 1992 Maastricht Treaty, as well as identifying ‘temporally’ or ‘chronologically’ what is (still) pre-modern or (already) modern in the evolvement of European politics and economics. This is, in the words of Kennedy, the replacement of ‘differences of politics or ideology in contrasting Eastern and Western Europe. As far as it concerns Europe, this stands for a policy project which (almost obsessively) focuses on two market regimes: Internal European market and External Trade System, or, formulated conceptually, “interdependence” and “cooperation”.’[6] ‘To be outside is to be subject to the ups and downs of free trade. To be inside is to participate in a highly structured system of planning, wealth stabilisation, and transfer payments.’[7] The same and ‘typical’ including-excluding mechanism, identified by Kennedy, is – today in 2013 – still in existence. It is perfectly illustrated by the notion – or more precisely by the politico-conceptual weapon – of a ‘two-speed Europe’. Moreover, it can be identified in Germany’s insistence on the participation of the International Monetary Fund (IMF) in dealing with the Greek financial crisis in 2012. Kennedy could justifiably argue today that connecting Greece to the IMF as non-EU institution stems from Greece’s peripheral status on Europe’s political and territorial landscape. To connect the bailout for the EU-member state with requirements formulated by the IMF reveals a perpetual and now affirmed ‘alien’, ‘foreign’ or ‘outside’ character of Greece in the mapping of a European identity – if, and only if there is such a thing.

International Trade: Normalcy and Deviation

Heavily relying on the predictability of customary law, ‘the international trade regime divides traders and trade relations into the normal and the deviant’.[8] In principle, public law regulations are the ultima ratio measures, and public law as such is merely supplemental to a laissez-faire market system. State of the art is an archaic private business model which simultaneously determines state inference and state-owned enterprises to be abnormal and, using Hamlet’s complaint about modernity, ‘out of joint’ or – at least – underdeveloped compared to contemporary standards. Eventually and in subtle ways, the international trade regime disciplines state the criteria of already established ‘normal’ trading and policy customs.

However, all emerging and justified criticisms of this anachronistic state of nature of entrepreneurial activity have been internalised by, at least in the self-perception, ‘disciplined’ and orderly states. What remains of this anti-state perspective is, as Kennedy puts it, ‘a trade policy minimalism’ which ‘continues to dominate initiation rituals for newcomers to the system’.[9] That this attitude is indeed nothing but a symptom of a severe historical amnesia on the part of the now ‘modernised’ Western states was recently echoed by Ha-Joon Chang in his 2002 book with the self-explanatory title Kicking Away the Ladder, in which he tells a different tale of how Western states have developed because of an initially very rough protectionism, even expropriation of foreign investments. Hence, Kennedy concludes with a reversed perspective in stating that the laissez-faire rationale and the primitive normative structure of International Trade eventually blur the distinction of internal and external markets as well as the standard criterion of international integration.

Inside the EC: Regulating the Internal Market

In intertwining political and economic ideas, the European Community might be perceived to be ‘the mature modern laissez-faire normal trader’.[10] What Europe has in common with its surrounding neighbours is the aspiration to somehow overcome and to minimise the legitimacy gap between state omission and state responsibility, or laissez-faire market and public administration respectively. Yet, here again persists a classic archetype of European self-perception. Kennedy writes: ‘Just as modern economies have left … the simple distinction between public and private far behind, so also this up-to-date political regime has transcended quaint visions of democratic participation or separation of powers. In this sense,’ he concludes, ‘the EC seems the most advanced instantiation of the liberal democratic model among nations.’[11]  This establishes the chronological superiority according to which Eastern European countries have to live up to politically. The other side of this supremacy coin is identified by Kennedy as a ‘political culture with a technocratic and legal face, in which politics is treated as having somehow already happened elsewhere’.[12] It is exactly this aspiration for re-legitimising market-oriented, non-political but technocratic decision-making by means of engaging and educating the EU-citizen or ‘continual process of institutional reform’, which contradicts the demands for real democratisation against its Eastern neighbours.

The EC engages the East through International Trade

While the rupture of 1989 was perceived as setting the Eastern European countries free from primitivism, that is, ideology or the subordination of economic to political issues, the EC has attempted to ‘normalise’ them through international trade agreements. However, as seen above, the international trade system is still primarily determined by few, but effective, paradigms of market liberty and state omission. For former Comecon-states, this is not a shock therapy as concerns market deregulation, but rather, in the words of Kennedy, ‘a shock to primitivism, from which a modern market economy might or might not develop’.[13] An alternative would have been the immediate movement to exactly the same balanced market and public sector mechanism as existent in other Western states.

Alternatives: Improving the Terms of Engagement

Kennedy tries to illuminate how the internal Western market and the international market are not either/or alternatives for former Comecon-member states. It is unavoidable, when approaching the EC as a membership candidate, to integrate a technocratic and undemocratic political vision on a constitutional and administrative level. This realistic perspective on the EC as a ‘regulatory regime with an active industrial policy, rather than a free trade association’ is, at least for Kennedy, advisable in negotiations.

Conclusion

The policy decisions of East European States must not only consider laissez-faire market or social engineering, but also the subtle implications of a broader cultural narrative. And within this narrative framework, Kennedy concludes, there are just ‘unhappy alternatives’, since the orientation towards international trade means degradation to a third-world country, and the orientation towards the EC’s internal market means subscription to technocratic legislative machinery, blind to classic democratic governance. Yet, a free decision between two given alternatives, which derive from a normative and necessitating tendency of contemporary political thought, certainly and solely raises the question of the possibility of free decisions as such. In other words, this kind of decision, destined for eventual dissatisfaction, inherently points towards the obvious discrepancy between prudent governance, a prevailing political ideology and academic theory. If the latter fails to deliver or even dream of (at least) one third alternative political option, political theory as an activity, i.e. critique of the practice, has ceased to exist. It is only theoretical, abstract and passive, while the political practice lacks intention and meaning, i.e. reality.

In picking up Kennedy’s initial critique of the renewal movement, it might be helpful, at this point, to elaborate further what this ‘narrative structure framing policy’ essentially signifies: The autonomous inclusion of authentic ruptures while preserving conceptual coherence might be interpreted as a strengthened institutionalised force of knowledge. Right after the revolution in East-Germany and the withdrawal of Soviet power from Central and Eastern Europe, in its manifold shapes, it must be read to be an ad hoc anti-ideological European worldview, or – consequently in turn – must be understood to be a reiterated universal European ideology. Hence, speaking of a political consciousness, and considered consequently from a psychoanalytical perspective, this bears two implications: Firstly, the ‘Internal Market’ is, pathologically considered, a mere repetition compulsion of Europe’s administratively functionalistic and politically integrating developments since the 1950s. Secondly, the emphasis on the international trade relation system and state sovereignty can be grasped with the psychoanalytical notion transference.^[14] For it is precisely the non-internalised, always foreign and alien aspect of (the hidden nationalist) Europe which cannot be overcome and gets transferred into Eastern European countries as an element, which is ‘still-not-modernised’. Both remain, psychologically considered, nothing but dysfunctional states of mind.

Due to a devoted positivism and scientism, the majority in contemporary political theory refuses even to touch upon the complex psyche of ‘Europa’, the goddess, which, according to Greek mythology, was abducted from Asia. The prevailing academic ‘reality principle’, i.e. ideological forces determining rationalisations, is still torn between the economy and politics, war and peace, historical novelty and rupture, as well as West and East. To take one fairly recent example from Germany: In 2010, to justify further austerity measures in the federal budget, the Chancellor Angela Merkel used on many occasions the neologism ‘alternative-less’. Because it is an obvious cul-de-sac argument and essentially depoliticises any public debate, it was voted the ‘non-word of the year’ by the Society for the German Language (GfdS). And justifiably so, because it not only cuts off effectively political reasoning, but, more importantly, also consciously reduces political decision-making to a mechanical application of one predetermined agenda. Hence, what David Kennedy already identified in 1991 as a biased while contradictory academic perception of political reality and options (and vice versa) still finds its validity today: Nothing new under the sun in international affairs? That’s ideology at its best!

Stefan Mandelbaum,

King’s College London 2013