VJIL Symposium: Gregory Shaffer and Joel Trachtman Comment on Sungjoon Cho’s “Beyond Rationality”

[Gregory Shaffer is the Melvin C. Steen Professor of Law at the University of Minnesota Law School. Joel P. Trachtman is the Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

We are grateful to Professor Cho for writing this Article (Beyond Rationality: A Sociological Construction of the World Trade Organization) as a critique of our earlier Article (Interpretation and Institutional Choice at the WTO). Our article examined the choices in WTO interpretation in terms of their institutional implications, which in turn affect social welfare and participation in social decision-making. Cho’s main point is that our approach is “blindsided” by failing to understand WTO rules and interpretations from the standpoint of a discourse-based constructivist or sociological approach. He contends that norms at the WTO arise from discourse, and that actors judge the behavior of others and formulate their own behavior on the basis of these constantly evolving norms.

Cho’s article, in our view, does not engage with our central focus — which is to increase understanding of what is at stake in WTO drafting and interpretation in terms of the implications for not only social welfare, but also (and relatedly) for participation in social decision-making processes. We did not aim with this article to take sides in the rationalist-constructivist debate. We rather believe that our framework is open to addressing the role of both ideas and interests, and is by no means “textualist determinist” (p. 325) and “rationally predetermined” as Cho contends (pp. 325, 334, 347, 353). Readers of our article and users of our analytic framework can decide for themselves.

To turn to Cho’s sociological approach, it seems to imagine a closed discursive community endogenously or autopoetically generating norms. Our approach highlights instead the exogenous consequences of interpretive choices, however those interpretive choices are informed, including by norms developed interactively, or by interests and perspectives that are not endogeneous to the “WTO community.”

We question what it could possibly mean for welfare (however one views it) for the world to be structured as Cho conceives of it, as a place where international organizations such as the WTO have an internal discourse that determines norms which in turn determine behavior. How would these norms be judged? Cho argues for some independent “values”-based metric, but seems to fail to recognize that different individuals have different values, perspectives, and priorities; that different states represent different constituencies; and that what people value and prioritize affects welfare. Our framework, in contrast, makes clear how interpretive choices allocate authority to different institutional decision-making processes, which mediate expressions of diverse values and priorities in different ways (each of them imperfect, but some better than others in different contexts).

Our focus was on the consequences of choices in the interpretation of WTO rules, which we viewed in terms of the delegation of authority to different social decision-making processes, affecting welfare and participation. Cho’s focus, in contrast, is on how interpretation is affected by social interactions within a community that endogeneously generates norms. Cho is correct that ideas have power, and that social interaction can affect people’s preferences, and even the way that representatives express the preferences of their principals. Cho’s contribution is important to remind us all of this fact. We only regret that Cho (whom we greatly respect) depicts our framework as closed to the power of ideas. Just one example from page 131 of our Article will illustrate the fact that we also tried to show the power of discourse:

From a constructivist perspective, a judicial body’s interpretation and application of a text will be informed by historical, political, and social context. The judicial body will be part of a “community of interpreters” of that text as applied within such a context. From this perspective, WTO jurists may be persuaded by and internalize principles and norms from neighboring international law regimes, and incorporate those principles and norms into their reading and application of WTO texts (citations omitted).

The aim of our Article is not to advance a “rationalist” approach against a “constructivist” one. Rather, the aim of our article is to provide a framework for understanding the implications for social decision-making processes of decisions made in WTO treaty drafting and in WTO case law. The choices are real ones, and can’t be elided.

Cho, in contrast to us, repeatedly speaks of a “paradigm shift” in the WTO (pp. 341, 343), and suggests that everyone in the “community” (or Gemeinschaft) more or less normatively agrees to the “appropriate” interpretive approach based on the “logic of appropriateness” (p. 337). He thus writes, “it is WTO norms and social structures that determine how members perceive their interests and identities” (p. 342). We believe that states’ interests and identities are also determined by their situation in the world.

There is serious disagreement around the globe regarding trade policy in light of the different priorities and perspectives of countries and their stakeholders. These priorities and perspectives are mediated in different ways by social decision-making processes, such as national political processes, various international political processes, global market processes, WTO judicial processes, and so forth. Choices over the drafting of WTO agreements, and (most importantly for our article) the interpretation of the provisions in those agreements, have institutional implications. They thus involve institutional choices. We hope that our analytic framework for understanding and evaluating WTO interpretive choices is useful for practitioners, as well as for scholars of all theoretical stripes, from rationalists to constructivists. We thank Sungjoon Cho for his critical engagement with it.