By Guillaume Lévrier
An Interview with Coralie Raffenne, author of “La Souverainté marchandisée”
Why has the destruction of the living become a characteristic of the postcolonial Rule of Law State ? Has it become a paradigm from which we cannot escape ?
The destruction of life is not a paradigm connected to the rule of law but the expression of its perverted instrumentalisation. The rule of law was implemented in colonial empires, while in the colonies, the exploitation of human life was the source of economic domination. This colonial double standard was maintained in the postcolonial era as no deep questioning in the actual structuring of modern democracies has been entailed by the decolonisation process: the former colonial states of exceptions were prolonged, allowing a continued exploitation of bare life in the form of natural resources. This corrupted expression of the rule of law can only be eradicated through a challenge to its structures in postcolonial democracies. The ruling elites are of course very reluctant to address this task because of the possible undermining of their own status and power that would result from bringing to light the interweaving between democratic institutions and their corrupted doubles.
The myth of the Rule of Law stands on the domination of the law and the obligation for everyone to submit to it. However, you observe that de facto Rule of Law includes in its heart shadowy areas. Those areas are revealed by globalization. Do we need to erase them ? And if we do, won’t we be lagging behind the main trend ?
The modern state is based on the mythology of the rule of law. The rule of law is also a foundational utopia for modern democracies. I am not attacking the rule of law as a utopia which is absolutely necessary to any political project. I challenge this mythology of the rule of law as a corrupted utopia, a veil concealing the reality of power relations. Hence, tax heavens are often perceived as anomalous and marginal in the global capitalist system. In reality, they are an essential element in the current functioning of casino capitalism, but also of the wealthy western democracies’ institutions. It is pointless trying to deal with these shadow areas as if they were outside of the functioning of our own power structures. What the problem of tax heavens calls for is a deep questioning and reforms of western democracies, based on some of the Enlightenment’s foundational utopias such as the rule of law. The enduring importance of Politics, even in the face of the prevailing logics of economics, must be stressed; the narratives of globalization have paralyzed and colonized political action and now political utopias. It is high time to break with this tendency. The obstacle to political action is not its content and objectives, but rather its national dimension. Strengthening the political dimension of the European Union is the first step towards overcoming the currently encountered limits of Politics.
You show that, against « transparency » ideologies, the labour of most international law experts is to produce areas protected by shadow, where laws don’t apply. If the « transparency » relies on the sole market rationality, isn’t it in itself a source of opacity? Especially after the limit of rationalism highlighted after the second world war ?
Transparency is connected to market ideology. To be efficient, markets need to be transparent. Economic agents need to have all the relevant information in order to make rational decisions. Lack of transparency leads to transaction costs and externalities. The bread and butter activity of big accountancy and law firms is indeed very much focused on producing opacity and devices enabling to conceal assets or liabilities. In the Enron case, this was simply done through outright falsification with disastrous consequences. Transparency is of course a very useful principle in the fight against corruption in politics or the abuses of tax avoidance, and in the cooperation between tax administrations. However, democratic control cannot be limited to the requirement of transparency, through media scrutiny or accounting requirements. It requires political courage to implement a system of dissuasive legal sanctions to be administered by an independent judiciary.
The individual seems to have become the mesure of everything, and in particular of this omnipresent notion of « governance ». Shouldn’t we do the exact opposite, as the challenge we’ll have to cope with can’t be anything but global ?
Governance is not about the implementation of a political project but about controlling individual behaviour which constitutes the main concern of power in contemporary liberal democracies. The individual is a subject of rights, but also a rational economic agent and the focus of disciplinary and managerial control. In the general context of neoliberal governmentality, it is no surprise that the main focus remains the individual, although this might not actually entail more individual freedom or happiness. Dealing with environmental issues, in my view, necessitates to break free from this power-knowledge framework because what is required is a coordinated, collective and civic program of action with strong democratic legitimacy based on the common good.
You quote Hannah Arendt, who insisted since 1958 on the necessity to establish a clear distinction between the public and private spheres, and was promoting the idea of « common good ». You do think yourself that the moralisation of politics and international relations need this distinction and the re-establishment of the role of the State. How can we make this happen ? Is it still possible ?
Current social and environmental stakes are huge and social movements are ever better organised and vociferous. How long can they be ignored? Scandinavian democracies have established within their institutions an effective regulation of conflict of interest. It is a simple principle which can be pragmatically implemented, for instance through the regulation of lobbying. Moreover, the principle of separation of interests could be enshrined as a constitutional principle as central to democratic institution as the separation of powers. Rehabilitating the state is both a condition and a consequence of a clear separation between the public sphere and the private sphere, necessary to the definition of the common good. As it has been demonstrated by Godefroy and Lascoumes, fighting the excesses of Casino capitalism seems impossible within the current institutional context. Radical changes have to be undertaken, not only on ideological grounds, but also because they are absolutely necessary.
And what can we expect from all the states in the world that don’t respect the Rule of Law ?
Many dictators and corrupt rulers are supported by western democracies. The notion of realpolitik is sometimes used to justify the confusion between private and public interests. It is roughly the same problem for tax havens: they are the negative doubles of Western rule of law states. If the fight against corruption and the commodification of sovereignty becomes a priority within rule of law countries, it will necessary spill over “outsourced” corruption. International law institutions are contested but constitute an existing framework within which the principle of separation of interests should be implemented.
La Souveraineté Marchandisée by Coralie Raffenne
Éditions Armand Colin – 22€
This article was first published in the Fall 2013 issue of The Paris Globalist.
