This post is a little different, so hold on to your hats.
I attended a lecture/talk at a meeting of the Legal Theory Reading Group here at the University of Edinburgh last night by Professor Zenon Bankowski about a new paper he is working on. I’m certainly no legal theory expert, but this is what I gathered was the core of his idea:
- The act of giving necessarily means that you will change because of that gift — this is related to the idea that you expect/get something in return whenever you give, even if it is just a warm fuzzy feeling.
- People naturally fear change.
- The fear of change is reduced by giving only to people who are like you (or act within your expectations).
- Law structures how we give and reduces the risk with giving.
- The entire process, and especially the idea of law as an institution governing our relationships, is in a process of feedback with our individual acts.
Now I don’t want to get into to much of the theory, but I was thinking about this as illuminating to the psychology of FTAs — specifically about the idea of only transacting business (giving) with those whom you understand (i.e. are like you). This seems to me to have some relationship with Foreign Direct Investment (FDI), which is the key goal for many developing countries when they decide to sign an FTA.
A Free Trade Agreement is a means to structure the law, and perhaps thus a society, to a model familiar to businesses that would like to compete in that market. Businesses, if we can speak of them as having a personality, would be risk-adverse to experiencing new ways of doing business. They ‘want’ to do business in ways known to them in order to limit their risks.
In addition, from an economics standpoint we should also discuss transaction costs — there will be a fixed set of costs to expand business into a new foreign market. The closer that market resembles a familiar model, the less expanding into that market might cost.
Do and Watson, in Economic Analysis and Regional Trade Agreements, ask the question:
Would transaction costs in an RTA-riddled world be that much higher than in a world in which each nation-state established its own tariffs and ran a full set of non-tariff barriers?
Their ‘optimistic reverie’ is that if the world was divided up ‘into 10 or 15 RTAs within each of which WTO rules held sway’ that this would facillitate trade and would alleviate some of the institutional difficulties of the WTO. Note that Regional Trade Agreements is used as a term to describe both FTAs and Customs Unions.
Now, I don’t want to ramble on too long, but it is worth thinking about how these agreements export a set of values and way of doing business. This is a topic that often arises in the IP context when discussing Traditional Knowledge (and how to protect it, especialy ‘bio-prospecting’) and Access to Medicines issues surrounding patent law.
In the IT field, the DR-CAFTA agreement exports features of the US Digital Millenium Copyright Act (ISP liability and anti-circumvention measures) to the other signatories. This locks these countries in to a certain way of interpreting the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
Though this project focuses more on how things are ‘on the ground’, the intellectual exercise of stepping back and looking at the big picture has many benefits.
February 1st, 2007 at 1:51 pm
Jordan-
interesting ideas here. If you’re really interested in thinking about gifts, there’s quite a long discussion in Anthropology and sociology about this. The most famous is Marcel Mauss’s “The Gift.”
LINK
But Pierre Bourdieu has a nice section discussing this as well in Logic of Practice.
LINK
If you are interested, I can hunt down the most interesting passages for you–though you could also just look up GIFT in the search inside function on Amazon.
If memory serves, to add to your thinking on this–and it is interesting to think of this as “Legal theory” because I always think of it as a sort of anthropology about taboos and such, with laws being something particular to every culture, some more carefully documented and followed more strictly than others. In Bourdieu in particular, he specifically talks about an “economy of practices” such that his system even adopts some economic terminology (”capital”) to quantify
the amount of symbolic power any individual has within a social field–and how that power is valorized.
What Bourdieu says, IIRC, about the gift is that, absent, I suppose, a hard and fast rule, the question of the gift is actually more about time than reciprocity straight up. So if you receive a gift, the question is not whether or not you give a gift in return, but when. Obviously, waiting too long is a problem. But if you return the gift too soon, it makes it look like you are only giving the gift because you got one, which reflects poorly on both you and the original giver: it makes you look like you aren’t really sincere in the return gift–that you are reciprocating simply because you have to–and it insinuates that the only reason that the original giver gave you the gift was to get the gift in return. So, depending on the relationship, the context, etc. there is an ideal time to return the gift: but when?
And, I’d also point out that, for Bourdieu’s (and probably Mauss) version of the gift to qualify, there shouldn’t actually be something that makes you give the gift other than the social situation. If you are actually going to get sanctioned and fined in proceedings of some international institution, it’s hard to to really call that a gift (though in issues of trade and aid, that’s usually the kind of “gift” the US gives.)
But I am in full agreement with your point that “A Free Trade Agreement is a means to structure the law, and perhaps thus a society, to a model familiar to businesses that would like to compete in that market. Businesses, if we can speak of them as having a personality, would be risk-adverse to experiencing new ways of doing business. They ‘want’ to do business in ways known to them in order to limit their risks.”
This is exactly what I am trying to think about in my consideration of property rights, particularly since the players who often have had the most say in the way these agreements have been drafted have been a certain group of “first world” businesspeople. It’s also a key point that anti-sweatshop campaigns fail to realize: the reason that companies flock to China and Vietnam isn’t that the have cheap laborers (or the fanciful weak state of Friedman [Milton or THomas] fantasies): they may have lower living costs and poverty level wages, but they also have a strong regulatory framework and can guarantee that there won’t be any worker uprisings (though Vietnam had some trouble with that briefly last year) AND, perhaps more importantly, that whatever happens, there won’t be any expropriation of the business investments (This is why Chavez and Evo Morales make the major headlines in US news but worker uprisings around the world rarely even register a comment in the business section. In most cases, the places where a worker uprising could be harmful to US business, they feel they are well protected by the local government (or, in the end, the IMF and World Bank, such as in East Asia in the late 1990s) from having their investments compromised.
It is sort of a leap to talk about IPR as a similar kind of investment, but this is the logic of why “free trade” and protectionist property laws go together. As Drahos and Braithwaite point out in “Information Fuedalism” about many international IPR treaties, they are agreements that “in another era would have been rejected as a global charter for monopolies [but have] come to be thought of as consistent with free trade and competition.” The only way this works is by having the real meaning of the “Free Trade” policy to extend the rules governing your behaviors to other contexts so that you don’t have to navigate all those messy legal changes when you cross a border.
The last point you make, about feedback helping to structure the laws of future transactions, is somewhat more like Giddens concept of structuration, which uses the idea that we are co-determining the structure through our actions. I think Giddens is weaker than Bourdieu (and not just cause he’s Tony Blair’s lackey) but his theory of modernity in “Consequences of Modernity” would have much to say to the questions your asking–though his focus would be more on space as the element that distinguishes modern society. He says that the biggest change we’ve had to adapt to in modernity is having key elements of our lives created and dictated by people we’ll never see and have little reason to trust. As with every theory of “Modernity” there’s always an element of obviousness and overstating of the case, but it was a very influential book in the early 1990s. Here’s a good article comparing structure in Bourdieu and Giddens by Thomas Sewell
Sewell, W. F. (1992). A theory of structure: duality, agency, and transformation. The American Journal of Sociology, 98(1):1-29.
Anyway, I’d be very interested to hear more of your thoughts on this. I guess I’ll have to watch the blog. It looks like it will be a very interesting project
-s