Subverting the logic of utilitarianism in times of Covid-19
By Dr. Gamze Erdem Türkelli (@GamzeErdmTkrlli)
Either live for the markets or die for the markets
A return to business as usual is being advocated for fear of continued market losses in many countries where physical distancing has only recently started showing signs of slowing the spread of Covid-19 and business as usual continues to be embraced in others under dubious claims that they will lead to herd immunity despite warnings from health experts. Billion-dollar companies are asking their employees in this time of crisis to take unpaid leave or to donate their paid holidays to fellow employees in solidarity, while some allegedly continue employing people in dangerous conditions that can aggravate the reach of the pandemic. Businesses, including major airlines, have sought and are securing government financial assistance in the wealthy parts of the world, such as in the US, with the 2 Trillion USD stimulus bill that envisages as heavy a portion as assistance to big businesses as to individuals.
Of course, governments responding to the claimed needs of big business enterprises with cash injections is not considered a radical proposition, echoing the “too big to fail” doctrine. Yet, emergency unemployment benefits to those laid off and emergency cash injections for self-employed are hotly debated for fear that they will decrease worker availability and proposals such as universal basic income for all citizens are considered ideologically motivated. Bailouts of big businesses are on the horizon, while many ordinary citizens even in wealthiest parts of the world employed precariously, on zero-hour contracts or otherwise, are acutely aware that being able to #stayathome and to confine themselves is a luxury not easily afforded in the absence of decisive government action providing them a reliable socioeconomic safety net. Even as the human toll of Covid-19 reaches levels thought unimaginable only a few weeks ago, those over the age of 60 are now being called on to sacrifice themselves in service of the markets. This existence strongly echoes Mbembe’s notion of necropolitics, which is buttressed by “a sacrificial economy, the functioning of which requires, on the one hand, a generalized cheapening of the price of life, and on the other, a habituation to loss” (Mbembe, Necropolitics, Duke University Press, 2019, p. 38)
Political reactions to the Covid-19 pandemic that will inform the legal responses are grounded in market fundamentalism. That market fundamentalism continues to apply, despite the pandemic we find ourselves in and the looming recession on the horizon, an all-encompassing logic of utilitarianism to living beings, who are in service of the omnipresent but invisible markets, both domestically and internationally. This orientation is neither coincidental nor haphazard. As Orford notes, we have been conditioned, including through consciously crafted education systems
designed to produce the subjects of economic globalization — both as citizens who subject themselves to the disciplines of the market, and as decision-makers willing and able to enter into calculations about risk and reward. (Orford, “Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice”, Leiden Journal of International Law, 18 (2005), pp. 179–213, at 209)
Human beings are treated from an inherently utilitarian perspective: as a productive workforce to fuel markets, as consumers that assist in the reproduction of existing market-based patterns of production and consumption, and if they are unlucky, as potential sacrificial lambs to the market gods. Haskaj, argues for instance, that this is a hallmark of “a necroeconomy, an economy of death, the accumulation of capital occurs from below, directly, not through surplus value (cheap labor) but rather through surplus populations that are (re)produced as death-subjects, as people whose role in the economy is to be victims”. (Haskaj, “From biopower to necroeconomies: Neoliberalism, biopower and death economies”, Philosophy and Social Criticism, 2018, Vol. 44(10) 1148–1168 at 1163) The value of human life is measured by the current or prospective contributions — real or perceived- that it can make to the reproduction of production and consumption patterns. To be fair, the utilitarianist logic that applies to human beings as means of production has not been exclusive to capitalist modes of economic production, but also integral, for instance to Soviet socialist modes, which went as far as to make so-called ‘social parasitism’ an offense (Lapenna, “The Contemporary Crisis of Legality in the Soviet Union Substantive Criminal Law,” Review of Socialist Law 1(2) (1975): 73–96).
Extractivist market fundamentalism has long treated people living in developing countries in even more extremely utilitarian ways, particularly as cheap and/or unorganised labour to drive down production costs and thus increase profit margins as well as large and untapped consumer markets of products that have at times been marketed in misleading and aggressive ways detrimental to the wellbeing of the most vulnerable, including children. Nature and non-human living beings have not been spared, being largely valued as ‘untapped’ profit-making opportunities or as raw materials, in other words — expandable — leading to irreversible environmental degradation, pollution and the climate emergency. Of course, the moment the utility seems to be no longer required, the powerful corporate actors in the markets have ways of displacing costs onto workers and smaller companies in the Global South, for instance by cancelling orders.
IEL serving the markets at all cost
The hegemonic and extractivist structures of International Economic Law (IEL) have been erected to safeguard markets and capital accumulation, while minimizing perceived costly externalities. Historically, trade regimes have fuelled wealth creation in the Global North by usurping resources from the Global South to expand commodity markets. International investment law has sought to protect investor interests, based on the creed that investment is a good with a greater value than competing claims and interests, including human rights and environmental protection, as has long been reflected in the practice of investor-state dispute settlement (ISDS). Despite a lack of convincing evidence that international investment flows generate prosperity in destination countries, these investment flows continue to be protected through international investment law regimes at the expense of rights-holders and the environment. Beyond state-based legal edifices of IEL, private participants of IEL such as transnational corporations have largely been able to rely on the regulatory structures of trade and investment law such as Free Trade Agreements and Bilateral Investment Treaties at the international level to move across jurisdictions unhindered in search of lower labour costs, lower raw material costs, less stringent regulation, tax benefits/exemptions and better incentives, often to the detriment of the local populations where they do business. Yet, even movements seeking to bring a measure of accountability to the free reign of market actors are saddled with the discursive constraints of ‘marketspeak’. For instance, when business and human rights (BHR) frameworks make the so-called “business case” for why business enterprises should care about human rights, they largely rely on utilitarian arguments: people are consumers (so reputational risks matter in being able to sell products and services), people are workers or their families (productivity and worker detention depend on how businesses treat them and their families), people are stakeholders in communities where businesses work (the business’ relationship with them determines the ease with which it can do business without or with minimal externalities’) and more recently, shareholders may be demanding that businesses at least respect human rights (similar to shareholder demands for businesses to invest in climate-neutral or green mechanisms) (determining the value of a business enterprise on stock markets).
Resisting market fundamentalism: Subverting the logic of utilitarianism
A seemingly simple ‘harmonization’ of existing international structures of IEL and human rights law, to make the economy more attuned to human concerns, is not likely a real solution. This is so, because
International economic law mandates that the relationship between the market/Father and economic man/son be one of sacrificial responsibility. The subject of international human rights law, the rights-bearing citizen, is produced out of this sacrifice to the God of the market. The split subject shaped by the intimate relation between the two forms of law sees freedom and liberation as its telos, and yet is forever caught within a sacrificial economy. (Orford, “Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice”, at 205)
For this reason, the mainstream visions of both IEL and human rights law need to be reconceptualised.
Collectively reimagining IEL (and rights of living beings in the way they are to be respected, protected and fulfilled) necessitates, at a fundamental level, subverting the logic of utilitarianism lying at the heart of market fundamentalism, which characterizes human beings, other non-human living beings and Nature as of value in so far as they serve the markets and therefore expandable if and once they lose their utility. Of course, what the market masks is the power asymmetries and inequality being driven by wealth accumulation in the hands of the very few, where the world’s richest 1% own 44% of the world’s wealth. Resisting market fundamentalism requires profoundly shifting or more accurately, dispensing with its underlying assumption about where value lies and how much of the global value everyone is entitled to. Questions about inequality, lack of accountability, asymmetric power relations as well as their gendered and racialized effects can only be freely asked and adequately answered once all individuals, communities, all living beings and Nature are placed at the centre of the global economy and the legal structures that govern it. Whether when facing acute crises such as the current Covid-19 pandemic or chronic ones such as inequality or the climate emergency, collective responses assisted by legal transformations will only be rendered possible once we seek to review, reform or dismantle structures that blindly ascribe to and serve to protect the few, under the disguise of the fictional creature that is the market.
Dr. Gamze Erdem Türkelli is a Post-Doctoral Fellow Research Foundation (FWO) Flanders — Law & Development Research Group, University of Antwerp. I am grateful to Luis Eslava (Kent Law School) for his kind comments and guidance on an earlier draft of this blogpost, particularly with respect to discussions on the economy of sacrifice and utilitarianism in different modes of production. This post also benefited immensely from the insightful comments of Paolo Vargiu (University of Leicester), Daria Davitti (University of Nottingham/Lund University) and Annamaria La Chimia (University of Nottingham) to whom I am thankful. Finally, I would like to thank the IEL Collective for the opportunity to contribute to the discussion on reimagining IEL in the time of Covid-19 and the extensive support.
