Linos Book Symposium: Response to Comments by Bradford and Brewster

[Katerina Linos is an Assistant Professor of Law at Berkeley Law]

I am thrilled to receive comments from Anu Bradford and Rachel Brewster on The Democratic Foundations of Policy Diffusion! Anu Bradford’s contributions to European Union law, trade law, anti-trust law, and international regime theory are multiple and major, but I highlight her recent piece “The Brussels Effect,” as it connects well to today’s discussion. In “The Brussels Effect,” Bradford explains clearly why some jurisdictions are able to directly influence the choices of foreign firms and citizens through their market power while others are not. Rachel Brewster’s work on international legal theory, state reputation, trade law and climate change has greatly influenced my thinking. Her article “Stepping Stone or Stumbling Block: Incrementalism in National Climate Change Regulation” proposes fascinating and counter-intuitive interactions between national and international regulatory choices.

I focus my response on two questions raised by both scholars:

• Do popular laws spread in different ways from unpopular ones? What changes when international organizations do not recommend expansions to social programs, but instead call for austerity measures and cut-backs?

• Does diffusion through democracy lead us to expect global convergence or regional silos?

Both Rachel Brewster and Anu Bradford correctly note that my book focuses in large part on the expansion of social policies. What happens when instead of advocating for the expansion of social programs, international organizations such as the IMF and the EU, as well as foreign governments, advocate for austerity?

As some of the book’s case studies are drawn from Southern Europe, this is a great question to ask at a moment when South European governments are making drastic cuts in their social policies, at the behest of the IMF and the European Union. The situation is certainly very different from the one I focus on in the book, because in this case, IMF and EU proposals are not mere recommendations, but conditions for the receipt of significant loans. It is nevertheless important to study the rhetoric surrounding austerity measures – after all, elected politicians must still persuade voters that it is better to accept the strict conditions of international loans than to default.

There’s absolutely no doubt that austerity measures are deeply unpopular and far more controversial than expansion ever was. That said, even in the depth of the Euro-crisis, it is striking to me that the main way South European governments are selling austerity measures to voters is by reference to Europe. Parties advocating for austerity measures label themselves “pro-Europe” parties, and many parties opposed to the austerity measures clarify that they too are “pro-Europe” parties. References to Europe focus in part on the large financial benefits EU membership entails, but comparisons to laws in particular European countries, and to average wages and spending patterns across EU member states are also frequently made. Popular support for the European Union is declining, and Euro-scepticism is on the rise, so this argument may not work forever, but right now, it is the main argument made in favor of austerity measures.

While most of the book focuses on the expansion of social programs, I also study an important case of cutbacks. When the Spanish socialists came to power, they made cutbacks in family benefit programs, because these had been tainted by their central place in Franco’s social ordering. Spanish conservatives who sought to reinstate these family benefits tried their best to reduce the Franco dictatorship’s stigma by pointing to the fact that other European governments offered family benefits, and suggesting that some international bodies recommended such programs (see pp. 170-73). In sum, while there are major differences in the politics of benefit expansion and the politics of austerity, foreign countries choices and international organization proposals are used to advocate for both types of measures.

Does diffusion through democracy lead us to expect global convergence or regional silos?

Rachel Brewster asks whether my proposed theory leads us to expect global convergence or regional clustering. If international organizations with universal membership are especially powerful, she posits, then we should see global convergence, whereas if the influence of neighboring states is greater, we should see regional clusters. I agree with this claim. Anu Bradford makes several related points about the relative influence of a global organization, the International Labour Organisation, and the influence of a regional body, the European Union.

What is harder to tell is whether international organization proposals or regional templates will dominate in cases where the two conflict. However, my theory predicts more global uniformity, compared to other theories. In diffusion through democracy, international organization proposals can play a bigger role than in diffusion through technocracy. This is because international organizations often advocate for policies by presenting them as global minima that every country should follow. And this particular argument is a very powerful one in domestic political debates. Advocates of both maternity leave and universal health care used this framing to advance their policies, whereas opponents of these ideas highlighted diversity in foreign countries’ choices. Both proponents and opponents made truthful claims; advocates simply chose to frame the policy issue in more general terms so as to be able to claim that a single global model existed. And in the experiments I conducted, the argument that the UN recommends that all countries adopt a policy often resonated more strongly than the argument that particular foreign countries had adopted a policy.

In contrast, in a world where technocrats make key decisions, they can carefully evaluate foreign countries choices, and decide to follow a dominant global model, to follow a different regional template, or to design an idiosyncratic policy for their country. Detailed information about the different policy choices of different countries, and their relative success and failures, are powerful among experts, but get lost in the din of political campaigns. Conversely, the argument that “everyone does this and so should we” is actually quite powerful with voters, but would probably not withstand technocrats’ scrutiny.

That said, I have not carefully studied cases in which international and regional models conflict, but plan to do so in a new project with Tom Pegram. In this project, we study the diffusion of national human rights institutions (NHRIs). In the case of NHRIs, the international template – the Paris Principles – conflicted with an earlier model that head spread throughout Latin America. So we are able to study how Latin American countries that considered different regional and international models responded. Through this new project on National Human Rights Institutions, Tom and I also hope to make headway on an different important question that Anu Bradford raises – that it is hard to figure out whether the content of an international norm, the fact that it is binding or non-binding, or its “precision, simplicity and incontestability” matter most in predicting diffusion patterns.