Philosophical, Religious, and Legalistic Perspectives on Equal Human Dignity and U.S. Free Trade Agreements
| Autor | Raj Bhala |
| Páginas | 95-148 |
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PHILOSOPHICAL, RELIGIOUS, AND LEGALISTIC PERSPECTIVES ON EQUAL HUMAN DIGNITY
MARCO JURÍDICO GENERAL
Philosophical, Religious, and Legalistic
Perspectives on Equal Human Dignity and
U.S. Free Trade Agreements*
RAJ BHALA
Summary: Abstract. I. A different paradigm. II. Philosophical and religious definitions of eaual
human dignity. A. The United Nations Charter. B. Kant and three formulations of the categorical
imperative. C. Five steps in catholic social justice theory. III. Implementing philosophical and reli-
gious definitions of equal human dignity. A. Practicing the categorical imperative in other areas of
international law. B. The Rawlsian algorithm for the categorical imperative. C. Applying catholic
social justice theory. D. Freedom of conscience and the indirect effects of a peoples trade agreement.
IV. Equal human dignity criteria for FTAS – A legalistic approach. A. “Human” and neutrality. B.
“Equality” and non-discrimination. C. “Dignity” and respect for the excellent. V. Implementing
the legalistic criteria in FTAS. A. Three methods for identifying the excellent. B. A starting point
on “Dignity”? VI. Equal human dignity and negotiating style. VII. Questions yet answered. VIII.
Conclusion.
ABSTRACT What would international trade law, and particularly free trade agree-
ments (FTAs) of the United States, look like if the dominant paradigm for their negotiation,
drafting, implementation and enforcement shifted from economics to equal human dignity?
First, the concept of equal human dignity has deep philosophical roots, including in the
work of Immanuel Kant, the great philosopher of the late Enlightenment. The Categorical
Imperative, for which Kant (among other insights) is renowned, and which Kant articulated
Anuario Andino de Derechos Intelectuales.
Año VIII - N.º 8. Lima, 2012
* Originalmente publicado en Saint Louis University Public Law Review, Vol. XXVIII, 2008. Se reproduce
con expresa autorización del autor.
This article draws from a book chapter entitled Toward Equal Human Dignity in U.S. Free Trade Agree-
ments, in LAW AND ECONOMIC DEVELOPMENT: TOWARDS CONSTRUCTIVE ENGAGEMENT
(Cailin Mackenzie & Kim Van der Borght eds.) (co-authored with David Jackson). The editors and Mr.
Jackson graciously helped me avoid “re-inventing the wheel” in respect of several sections.
I am indebted to my Research Assistant, Mr. Ben Sharp (B.S., Kansas State University, 2003; M.Sc.,
London School of Economics, 2005; J.D. Class of 2009, University of Kansas), for his indispensable
research assistance, particularly regarding Kant’s Categorical Imperative and the Rawlsian Algorithm. I
also am grateful for the editorial reviews by my Research Assistants, Mr. Devin S. Sikes (B.A., University
of Kansas, 2005; J.D., Class of 2008, University of Kansas), and Mr. Beau Jackson (B.A., University of
Kansas, 2003, J.D., Class of 2009, University of Kansas).
Finally, I thank Professors Constance Wagner and David Sloss of Saint Louis University School of Law,
Falon Wrigley, Executive Editor, Saint Louis University Public Law Review, and the other editors and
staff of the Public Law Review, for their generous support and hospitality.
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
in three formulations, helps define the concept. Further, the American legal philosopher,
John Rawls, offers a formula to elaborate and apply the Categorical Imperative. Second,
the concept also has a profound religious basis, including in Roman Catholic Social Justice
Theory. Third, considered in a legalistic manner, the words suggest specific criteria for trade
accords. “Human” intimates neutrality. “Equal” indicates non-discrimination. “Dignity”
suggests respect for the excellent. Applying these criteria to America’s FTAs is not only
possible but also yields specific proposals for human, labor and environmental rights that
could—and perhaps should—be advanced through those FTAs. Moreover, these criteria
mandate a change in negotiating style.
Following from the philosophical, religious and legalistic perspectives, there are three
“bottom lines” in respect to a paradigm shift in United States FTA law and policy toward
equal human dignity. Applying Kant’s Categorical Imperative calls for the United States
to treat its FTA partners in a Golden Rule-like manner. Applying Catholic Social Justice
Theory impels promotion of freedom of conscience as a direct effect of trade liberalization
and possibly also the improvement of the economic milieu as indirect support for freedom
of worship. A legalistic approach to the words “equal,” “human” and “dignity” calls for
incorporation into FTAs of excellent labor, environmental and human rights standards. The
three perspectives on equal human dignity are not incompatible, and the practical implica-
tions for FTAs are complimentary. Yet changing the FTA paradigm to one in which equal
human dignity predominates would require careful consideration of efficiency trade-offs,
legal capacity, sovereign state responsibility, managed and strategic trade policy, and trade
remedies. The effort may well be worthwhile. Throughout many parts of the world, the
tide favoring unrelenting and uncompromising free trade has turned.
I. A DIFFERENT PARADIGM
Equal human dignity certainly is not the dominant paradigm in which the United Sta-
tes negotiates FTAs. It is not even a foundational principle of American trade negotiating
strategy. Aside from modest references to selected labor and environmental matters, the
Bipartisan Trade Promotion Authority Act of 2002,1 through which Congress delegated
trade negotiating authority to the President, says nothing about equal human dignity.2
Rather, as is clear from the congressional negotiating objectives set out in this Act, the ends
and means of American trade policy are formulated in an economics crucible. Principles
like absolute advantage, comparative advantage, free trade and fair trade, and policies
like managed trade, strategic trade, infant industry and rust belt manufacturer protection,
and agriculture support, fill up most of that melting pot. Mixed in is a large dose of na-
tional security.3 The predominance—dare it be said, imperialism, for better or worse—of
1 See Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. §§ 3801–3813 (Supp. V 2007), amended
by Pub. L. No. 108-429, 118 Stat. 2434, 2591 (2004).
2 19 U.S.C. §§ 3801(b), 3802(a)–(c) (Supp. V 2007). The President’s trade negotiating authority expired
July 1, 2007 and has yet to be renewed. See 19 U.S.C. § 3803(a)(1)(A)(ii) (Supp. V 2007).
3 See, e.g., 19 U.S.C. § 3801(b)(1) (Supp. V 2007) (stating Congress’ findings that “[t]he expansion of
international trade is vital to the national security of the United States”) (emphasis added).
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PHILOSOPHICAL, RELIGIOUS, AND LEGALISTIC PERSPECTIVES ON EQUAL HUMAN DIGNITY
MARCO JURÍDICO GENERAL
economics is as true in the context of FTAs as it is in the multilateral environment of the
General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO).
But what if (a big “if” indeed) the paradigm changed, or at least more factors were put
in the crucible?4 What if equal human dignity became a, or even the, cornerstone of U.S.
trade policy? What if U.S. national security was redefined partly in terms of promoting
equal human dignity abroad through international trade agreements? What would that shift,
from almost exclusively economic motives to viewing equal human dignity as a first-order
concern, mean in practice?
Time and space are threshold appeals of these questions. The interest of any nation in
maximizing its net societal benefits from trade is long-term. How that interest is manifest
in specific trade laws and policies, actual or debated, varies across time, and from one
constituency in a society to another.5 Economic equilibria shift, comparative advantages
are lost in one sector and gained in another, and protectionist interests rise and fall. By
contrast, equal human dignity is enduring and universal. Drawn from philosophy, and
indeed from religion, it cuts across time and space.
These questions are especially poignant now. International trade law since the birth
of the WTO on January 1, 1995, and entry into force of the North American Free Trade
Agreement (NAFTA)6 on January 1, 1994, is seen by many around the world not as the new
frontier and champion of a better world, but rather as the “establishment” to be rebelled
against.7 Public opinion surveys conducted in the United States and abroad clearly indicate
rising skepticism about globalization generally and free trade in particular. The conven-
tional paradigm of international trade accords like the WTO texts and NAFTA—absolute
and comparative advantage—no longer command unequivocal bipartisan support or even
support among a clear majority of the polity. Of course, people worry about the impact
of trade agreements on their own incomes, jobs and industries, but they also worry about
4 To religious leaders, of course, the “what if” question is not a “big if.” For example, Pope Benedict XVI
spoke of the need to deal with secularism, “which presents itself in cultures by imposing a world and hu-
manity without reference to Transcendence,” and which in turn produces a “hedonistic and consumeristic
mindset,” by means of an appeal to the lofty values of existence that give life meaning and can soothe
the restlessness of the human heart in search of happiness: the dignity of the human person and his or her
freedom, equality among all men and women, the meaning of life and death and of what awaits us after
the end of our earthly existence.
Pope Benedict XVI, Address at the Plenary Assembly of the Pontification Council for Culture at the Vati-
can’s Clementine Hall (Mar. 8, 2008), in L’OSSERVATORE ROMANO, Mar. 19, 2008, at 2 (English
translation)
5 Denis J. Brion, Utilitarian Reasoning in Judicial Decisionmaking, 23 LEGAL STUD. F. 93, 94, 129 (1999)
(arguing that ostensibly value-free utilitarian analysis (in the context of adjudication), rather than promot-
ing efficiency and wealth-maximization, is “strongly normative in character,” and raises the specter that
“our system of enterprise . . . will be a mighty engine for privatizing profits into the hands of the few and
socializing costs onto the backs of the many”).
6 NAFTA is reprinted in a variety of sources.
7 See Paul H. Brietzke, Insurgents in the ‘New’ International Law, 13 WIS. INT’L L.J. 1, 8–9 (1994)
(advocating an insurgency to overthrow the established trade order to make way for better human rights
protection). In the post 9/11 world, the term “insurgency” has taken on a poignantly sinister connotation.
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