Early in his reign Benedict turned to the issue of values-based economics in the encyclical, Deus Caritas Est 2005.
Deus Caritas Est suggests a fully developed and sophisticated system of valuation for economic analysis. Economic values are essentially grounded in love, rather than in personal or aggregate wealth maximization. But love here is understood as the expression of a complex series of parallelisms. These start with the relationship between God and humanity—as expressed from the Old Testament to the meaning of the Incarnation (agape). That love finds expression in the love between man and woman, and then generalized as the love among individuals—both physical (and thus grounded in physical relationships) and perfectible (grounded in the need to mimic the love from God in the love of neighbor). From these foundations—divine love expressed in physical terms in the love among individuals within families and in communities, and among communities, is what is meant to serve as the maximizing value of economic analysis—not goods but the love value generated by interactions. Aggregate maximization of value, then, is not necessarily measured by wealth maximization in the form of the accumulation of lots of objects with a high market value (the conventional sense of classical economics and Marxist theory), but is measured in the production of good measured in terms of charity, and, in its modern understanding—social justice. Economics, then, is grounded in the study of systems for the maximization of social justice among individuals which itself is to be understood as an application of divine love in human relations. Larry Catá Backer, Values Economics and Theology: The Contribution of Catholic Social Thought and its Implications for Legal Regulatory Systems, Law at the End of the Day, January 12, 2008 (for a fuller treatment follow this link).
Benedict, of course, is not the first to seek a values based alternative to economics--as a basis for the formulation of governance policies. See, e.g., Louis O. Kelso and Mortimer J. Adler, The Capitalist Manifesto (New York: Random House 1958); Louis O. Kelso and Mortimer J. Adler, The New Capitalists: A Proposal to Free Economic Growth From the Slavery of Savings (San Francisco: The Kelso Institute, 2000). He is is hardly alone in seeking to articulate a normative framework for social and economic organization, one that can serve as the basis for law and governance. See, e.g., discussion by the contributors to Ethics in International Management (De Gruyter Studies in Organization , No 84) (Brij Nino Kumar and Horst Steinmann, eds., Walter de Gruyter (March 1998)) and Global Transformations: Politics, Economics, Culture (David Held, Anthony McGrew, David Goldblatt, and Jonathan Perraton, eds., Polity Press, 2003). Nor is he the first to challenge the normative framework (and thus the system of law and governance) on which the current model of liberal globalization is based. Compare Joseph E, Stiglitz, Globalization and Its Discontents (WW Norton, 2003), to Fidel Castro Ruz, On Imperialist Globalization (Zed Books Ltd (1 Feb 2003)) And lay people have also sought to ground the debate about economic organization in moral and religious terms. See, e.g., Rebecca Todd Peters, In Search of the Good Life: The Ethics of Globalization (Continuum Press, 2004). Yet, Benedict's long term project is itself an important and deliberate intervention in the governance debates about the role of the individual, the economic enterprise and the state, not merely as a matter of theology, but precisely because of its theological basis.
The critical relationship between a theological subtle deepening of notions of charity in a contemporary context, and the economic organization of society for "the good" has turned out to be the key to the elaboration of an application of notions of charity in the organization of globalization and the conduct of large corporations and other economic actors within it. This is not merely Church doctrine--something to be relegated to classes in theology. Rather, the doctrine was deliberately framed to serve as an important intervention in policy debates about the values incumbent on states to further as national policy and in the construction of interpretive agendas for basic principles of human rights. Doctrine, in this case, was to serve as the bedrock for the revaluation of the principles underlying law as applied to the economic sector by states, multinational corporations, supra state civil and political actors. See, e.g., Larry Catá Backer, Urbi et Orbi--Easter 2009, Law at the End of the Day, April 12, 2009; Larry Catá Backer, Ecce Homo: Reflections on Benedict XVI's Careful Comments to the United Nations, Law at the End of the Day, April 19, 2008.
Now the Pope has sought to refine the doctrine, the theological basis of his he earlier explored, in what is likely to be an influential encyclical, Encyclical Letter, Caritas in Veritate of the Supreme Pontiff, Benedict XVI, to the Bishops, Priests and Deacons of Men and Women Religious, the Lay Faithful, and All People of Good Will on Integral Human Development in Charity and Truth (June 29, 2009) (hereafter Caritas in Veritate). This refinement now begins to expose the social, legal and political consequences of Deus Caritas Est in two critical areas--corporate social responsibility and globalization governance. In this respect, the Church, quite correctly, joins an important discourse, the object of which is the control of the fundamental normative assumptions on which law and governance are based. On the ramifications of current efforts to internationalize the regulation of corporate social responsibility at the supra national level, see, Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law, Columbia Human Rights Law Review, Vol. 37, 2006; Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008.
Benedict XVI picks up the central theme of Deus Caritas Est early in Caritas in Veritate: " Charity is at the heart of the Church's social doctrine. Every responsibility and every commitment spelt out by that doctrine is derived from charity which, according to the teaching of Jesus, is the synthesis of the entire Law (cf. Mt 22:36- 40)." Caritas in Veritate, at Par, 2. Likewise, the Pope seeks to avoid any mistaking the implications of Deus Caritas Est:
I am aware of the ways in which charity has been and continues to be misconstrued and emptied of meaning, with the consequent risk of being misinterpreted, detached from ethical living and, in any event, undervalued. In the social, juridical, cultural, political and economic fields — the contexts, in other words, that are most exposed to this danger — it is easily dismissed as irrelevant for interpreting and giving direction to moral responsibility. Hence the need to link charity with truth not only in the sequence, pointed out by Saint Paul, of veritas in caritate (Eph 4:15), but also in the inverse and complementary sequence of caritas in veritate. Truth needs to be sought, found and expressed within the “economy” of charity, but charity in its turn needs to be understood, confirmed and practised in the light of truth. Id., at Par. 2.
And thus the connection--at once theological, social, legal and political--between charity, truth and the governance of human organization. "“Caritas in veritate” is the principle around which the Church's social doctrine turns, a principle that takes on practical form in the criteria that govern moral action. I would like to consider two of these in particular, of special relevance to the commitment to development in an increasingly globalized society: justice and the common good." Caritas in Veritate, at Par. 6. But it is more than that. Benedict would tie the values notions he illuminates to the global governance framework as well. "Love in truth — caritas in veritate — is a great challenge for the Church in a world that is becoming progressively and pervasively globalized. The risk for our time is that the de facto interdependence of people and nations is not matched by ethical interaction of consciences and minds that would give rise to truly human development." Id., at Par. 9. This he offers as an alternative either to secular nationalism or the liberal globalization. Id.
This short essay will examine more closely one small section of Caritas in Veritate, the whole of which is worth careful study. Chapter 3 of Caritas in Veritate considers the consequences of charity in truth in the social and economic context--Fraternity, Economic Development and Civil Society)--at the heart of law and governance. Caritas in Veritate at Paragraphs 34-42.
Benedict starts at the heart of the matter--a conflation of Christian notions of original sin with the individual wealth maximizing notions at the heart of liberal economics.
Sometimes modern man is wrongly convinced that he is the sole author of himself, his life and society. This is a presumption that follows from being selfishly closed in upon himself, and it is a consequence — to express it in faith terms — of original sin. The Church's wisdom has always pointed to the presence of original sin in social conditions and in the structure of society. . . . In the list of areas where the pernicious effects of sin are evident, the economy has been included for some time now. We have a clear proof of this at the present time. The conviction that man is self-sufficient and can successfully eliminate the evil present in history by his own action alone has led him to confuse happiness and salvation with immanent forms of material prosperity and social action. Caritas in Veritate, at Par. 34.From this, he raises a theme developed in the encyclical Spe Salvi, that a values-less economics is effectively soulless and thus subject to great abuse. "Then, the conviction that the economy must be autonomous, that it must be shielded from “influences” of a moral character, has led man to abuse the economic process in a thoroughly destructive way. In the long term, these convictions have led to economic, social and political systems that trample upon personal and social freedom, and are therefore unable to deliver the justice that they promise." Id. Rather, Benedict posits, it is the community, rather than the individual that sits at the center of economic organization, the welfare of which is best met by specific principles of justice; in his case those derived from the theology that animates the faith community he leads.
Because it is a gift received by everyone, charity in truth is a force that builds community, it brings all people together without imposing barriers or limits. The human community that we build by ourselves can never, purely by its own strength, be a fully fraternal community, nor can it overcome every division and become a truly universal community. The unity of the human race, a fraternal communion transcending every barrier, is called into being by the word of God-who-is-Love. In addressing this key question, we must make it clear, on the one hand, that the logic of gift does not exclude justice, nor does it merely sit alongside it as a second element added from without; on the other hand, economic, social and political development, if it is to be authentically human, needs to make room for the principle of gratuitousness as an expression of fraternity. (Id., footnotes omitted but referencing in part, John Paul II, Encyclical Letter Centesimus Annus).
With this, Benedict banishes the foundations of liberal economics for its core value--that values play no role in its rational approach.
"It must be remembered that the market does not exist in the pure state. It is shaped by the cultural configurations which define it and give it direction. Economy and finance, as instruments, can be used badly when those at the helm are motivated by purely selfish ends. Instruments that are good in themselves can thereby be transformed into harmful ones. But it is man's darkened reason that produces these consequences, not the instrument per se. Therefore it is not the instrument that must be called to account, but individuals, their moral conscience and their personal and social responsibility." (Id., at Par. 36).
Liberal economics does not fail for its rationality, but merely because it seeks autonomy within the structure of its own values systems, which, for Benedict, lack a normative basis in (religious) values. As a consequence, social and political cohesion is lost and the public good is sacrificed. "In fact, if the market is governed solely by the principle of the equivalence in value of exchanged goods, it cannot produce the social cohesion that it requires in order to function well. Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function. And today it is this trust which has ceased to exist, and the loss of trust is a grave loss." (Id., at Par. 35).
And thus we get to the heart of the matter of foundations--economics is a partial system. It is rationality without values. But it is incapable of producing values in itself. For that purpose, resort must be made to a higher power. While some seek it in the universalist principles of Marxist Leninism, or in the contextualized sui generis values of a state centered political communities, or in the universalism of a civil society shaped set of global community consensus values (at the heart, perhaps of the values basis of liberal globalization), Benedict offers a theologically grounded universalism.
The poor are not to be considered a “burden”, but a resource, even from the purely economic point of view. It is nevertheless erroneous to hold that the market economy has an inbuilt need for a quota of poverty and underdevelopment in order to function at its best. It is in the interests of the market to promote emancipation, but in order to do so effectively, it cannot rely only on itself, because it is not able to produce by itself something that lies outside its competence. It must draw its moral energies from other subjects that are capable of generating them. Id., at Par. 35.
In lieu of autonomous and the directionless (soulless) rationality of liberal economics, Benedict would posit the overarching disciplinary framework of what he refers to as justice principles--though in this case justice principles derived from the theological universe through which he views the world. "The market is subject to the principles of so-called commutative justice, which regulates the relations of giving and receiving between parties to a transaction. But the social doctrine of the Church has unceasingly highlighted the importance of distributive justice and social justice for the market economy, not only because it belongs within a broader social and political context, but also because of the wider network of relations within which it operates." (Caritas in Veritate, Par. 35).
And here is the heart of the rupture between liberal economics and values based systems--the autonomy of economic systems from moral, social and political ones. Instead, economics and its organization becomes something that must be directed from outside of itself--it is impossible to consider it a thing autonomous and self disciplined without regard to outside forces. "The Church has always held that economic action is not to be regarded as something opposed to society. In and of itself, the market is not, and must not become, the place where the strong subdue the weak. Society does not have to protect itself from the market, as if the development of the latter were ipso facto to entail the death of authentically human relations." (Id., at Par. 36). The governance consequences are forcefully described--this is not merely a matter of theology (and thus the muscularity of the concept of caritas is emphasized) but a matter of politics and law.
Economic activity cannot solve all social problems through the simple application of commercial logic. This needs to be directed towards the pursuit of the common good, for which the political community in particular must also take responsibility. Therefore, it must be borne in mind that grave imbalances are produced when economic action, conceived merely as an engine for wealth creation, is detached from political action, conceived as a means for pursuing justice through redistribution. (Id.).
And that common good is, for Benedict, morally pregnant. "Locating resources, financing, production, consumption and all the other phases in the economic cycle inevitably have moral implications. Thus every economic decision has a moral consequence." (Id., at Par. 37). Even secular rationality, Benedict insists, now understands the ethical limits of economic governance standing alone. "Perhaps at one time it was conceivable that first the creation of wealth could be entrusted to the economy, and then the task of distributing it could be assigned to politics. Today that would be more difficult, given that economic activity is no longer circumscribed within territorial limits, while the authority of governments continues to be principally local." Id. Globalization, it seems, has exposed the moral failings of liberal economics, the way that the failings of its finance notions might have exposed the failings even of its rational foundations. See Stiglitz, supra.
Having posited a fundamental limitation of economics--that it is neither autonomous nor self referential (Cf., State, Law and Economy as Autopoietic Systems (Gunther Teubner, and Alberto Febbraio, eds., Milan: Dottore A. Giuffre Editore, 1992) Benedict frames the challenge for economics, and for theological interventions in governance policy:
The great challenge before us, accentuated by the problems of development in this global era and made even more urgent by the economic and financial crisis, is to demonstrate, in thinking and behaviour, not only that traditional principles of social ethics like transparency, honesty and responsibility cannot be ignored or attenuated, but also that in commercial relationships the principle of gratuitousness and the logic of gift as an expression of fraternity can and must find their place within normal economic activity. This is a human demand at the present time, but it is also demanded by economic logic. It is a demand both of charity and of truth. (Caritas in Veritate, Par. 36).
And to this challenge he naturalizes his developing notion of caritas. "Economic life undoubtedly requires contracts, in order to regulate relations of exchange between goods of equivalent value. But it also needs just laws and forms of redistribution governed by politics, and what is more, it needs works redolent of the spirit of gift. The economy in the global era seems to privilege the former logic, that of contractual exchange, but directly or indirectly it also demonstrates its need for the other two: political logic, and the logic of the unconditional gift." Id. Caritas is meant to civilize economic life with values that serve the political and social order and substitute for the autonomy of economic life a connection to the social and political sphere.
Alongside profit-oriented private enterprise and the various types of public enterprise, there must be room for commercial entities based on mutualist principles and pursuing social ends to take root and express themselves. It is from their reciprocal encounter in the marketplace that one may expect hybrid forms of commercial behaviour to emerge, and hence an attentiveness to ways of civilizing the economy. Charity in truth, in this case, requires that shape and structure be given to those types of economic initiative which, without rejecting profit, aim at a higher goal than the mere logic of the exchange of equivalents, of profit as an end in itself. Id., at Par. 38.
But this is not merely a proposal for religiously based economic enterprises. It serves a more universal vision of mutuality and connection between the market the state and civil society--all bent to the same moral purpose. "My predecessor John Paul II drew attention to this question in Centesimus Annus, when he spoke of the need for a system with three subjects: the market, the State and civil society. He saw civil society as the most natural setting for an economy of gratuitousness and fraternity, but did not mean to deny it a place in the other two settings." Id., at Par. 38 (footnote omitted).
But, for Benedict, economic liberalization, with its protection of distinctions between public and private law and between the political and the economic, threaten the foundations of a moral economic order. "Not only is this vision threatened today by the way in which markets and societies are opening up, but it is evidently insufficient to satisfy the demands of a fully humane economy. What the Church's social doctrine has always sustained, on the basis of its vision of man and society, is corroborated today by the dynamics of globalization." Id., at 39. Yet Benedict over reaches here in the service of a singular and universal theologically inspired notion of charity in truth. The oppositional binary Benedict posits is belied by the tremendous secular movements to the conflation of public and private systems. See, e.g., Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law, Tulane Law Review, Vol. 82, No. 1, 2008; Larry Catá Backer, Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience, Transnational Law & Contemporary Problems, Vol. 19, No. 1, 2009. As well it ignores the secular movements to values in political organization.
Benedict suggests that the "exclusively binary model of market-plus-State is corrosive of society, while economic forms based on solidarity, which find their natural home in civil society without being restricted to it, build up society." (Id., Par. 39). Yet, Benedict is not positing so much an oppositional system as he is seeking to witness a competing system, with similar characteristics (the grounding in community, mutuality, and values). But what is clear is that, like movements in liberal economics itself, governance is moving quickly away from notions of autonomy to those of "values" and "community". Benedict argues: "When both the logic of the market and the logic of the State come to an agreement that each will continue to exercise a monopoly over its respective area of influence, in the long term much is lost." (Id.). John Ruggie might agree as he works toward a secular framework of values based governance that also seeks to soften the separation between the public/private, and the economic/political realms. See John Ruggie, Towards Operationalizing the Protect, Respect and Remedy Framework: A Progress Report, A/HRC/11/13, 22 April 2009. Which values will prevail to serve as the basis for governance systems remains to be seen.
And it is to an outline of that competing system that Benedict then turns. Benedict draws the basis of that system from the work of his predecessors.
Paul VI in Populorum Progressio called for the creation of a model of market economy capable of including within its range all peoples and not just the better off. He called for efforts to build a more human world for all, a world in which “all will be able to give and receive, without one group making progress at the expense of the other”. In this way he was applying on a global scale the insights and aspirations contained in Rerum Novarum, written when, as a result of the Industrial Revolution, the idea was first proposed — somewhat ahead of its time — that the civil order, for its self-regulation, also needed intervention from the State for purposes of redistribution. (Id., Par. 39).
Benedict, like many other civil society actors, decry the traditional shareholder model of corporate governance.
Without doubt, one of the greatest risks for businesses is that they are almost exclusively answerable to their investors, thereby limiting their social value. Owing to their growth in scale and the need for more and more capital, it is becoming increasingly rare for business enterprises to be in the hands of a stable director who feels responsible in the long term, not just the short term, for the life and the results of his company, and it is becoming increasingly rare for businesses to depend on a single territory. (Id., Para. 40).
This echoes sentiments long held by those fearful of an autonomous economic power, a system of institutions not beholden to a superior force--the state, religious institutions or the like. It is as much a statement of fear of the rise of competition from an outside source, of power, as it is an application of values concepts. One could argue that Caritas and Veritas are as capable of application internally by autonomous economic institutions, as they are applicable of imposition after such enterprises are domesticated within power hierarchies in which they play a subordinate role.
Likewise, Benedict points to the disaggregation of production as an evil to which the values of caritas might apply. "Moreover, the so-called outsourcing of production can weaken the company's sense of responsibility towards the stakeholders — namely the workers, the suppliers, the consumers, the natural environment and broader society — in favour of the shareholders, who are not tied to a specific geographical area and who therefore enjoy extraordinary mobility." Id. at Par. 40. Here again Benedict moves from a theological point with multiple vectors of implementation to an alignment with certain elements of civil society who see the issue as one of power. The Organization for Economic Cooperation and Development has itself sought to gain acceptance for a similar view of the obligations of multinational corporations in their relationships with entities with whom they deal. For a discussion, see, Larry Catá Backer, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law, Vol. 10(1) (2009).
Benedict posits a stakeholder model grounded in the values of Caritas in Veritate and subject to an external regulation by those who share a stake in the enterprise.
Today's international capital market offers great freedom of action. Yet there is also increasing awareness of the need for greater social responsibility on the part of business. Even if the ethical considerations that currently inform debate on the social responsibility of the corporate world are not all acceptable from the perspective of the Church's social doctrine, there is nevertheless a growing conviction that business management cannot concern itself only with the interests of the proprietors, but must also assume responsibility for all the other stakeholders who contribute to the life of the business: the workers, the clients, the suppliers of various elements of production, the community of reference. (Caritas in Veritate, Par. 40).
And echoing state actors in private financial markets, particularly the Norwegian sovereign wealth fund managers, Benedict suggests that to "be avoided is a speculative use of financial resources that yields to the temptation of seeking only short-term profit, without regard for the long-term sustainability of the enterprise, its benefit to the real economy and attention to the advancement, in suitable and appropriate ways, of further economic initiatives in countries in need of development." (Id.). For a discussion from the secular state based perspective of these ideas, see Larry Catá Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment, Georgetown Journal of International Law, Vol. 40, No. 4, 2009.
But it is not merely business enterprises whose actions must be guided by superior and binding values systems. (Id., at 41). Political entities are also bound by their own set of values. "Political authority also involves a wide range of values, which must not be overlooked in the process of constructing a new order of economic productivity, socially responsible and human in scale. As well as cultivating differentiated forms of business activity on the global plane, we must also promote a dispersed political authority, effective on different levels." (Id.). This suggests a necessary loss of sovereignty for the global common good on the political plane. Id. And thus a reformed understanding of the role of law in global governance:
In terms of the resolution of the current crisis, the State's role seems destined to grow, as it regains many of its competences. In some nations, moreover, the construction or reconstruction of the State remains a key factor in their development. The focus of international aid, within a solidarity-based plan to resolve today's economic problems, should rather be on consolidating constitutional, juridical and administrative systems in countries that do not yet fully enjoy these goods. Alongside economic aid, there needs to be aid directed towards reinforcing the guarantees proper to the State of law: a system of public order and effective imprisonment that respects human rights, truly democratic institutions. The State does not need to have identical characteristics everywhere: the support aimed at strengthening weak constitutional systems can easily be accompanied by the development of other political players, of a cultural, social, territorial or religious nature, alongside the State. The articulation of political authority at the local, national and international levels is one of the best ways of giving direction to the process of economic globalization. It is also the way to ensure that it does not actually undermine the foundations of democracy. (Id., at 41).
The ramifications of this view are profound. State and law must bend to the imperatives of globalization--but a values-based globalization, in which values, and those responsible for their generation, interpretation and protection, assume a privileged place in the hierarchy of authority.
The breaking-down of borders is not simply a material fact: it is also a cultural event both in its causes and its effects. If globalization is viewed from a deterministic standpoint, the criteria with which to evaluate and direct it are lost. As a human reality, it is the product of diverse cultural tendencies, which need to be subjected to a process of discernment. The truth of globalization as a process and its fundamental ethical criterion are given by the unity of the human family and its development towards what is good. Hence a sustained commitment is needed so as to promote a person-based and community-oriented cultural process of world-wide integration that is open to transcendence. (Id., at Par. 42).
Consequently, the "transition inherent in the process of globalization presents great difficulties and dangers that can only be overcome if we are able to appropriate the underlying anthropological and ethical spirit that drives globalization towards the humanizing goal of solidarity. Unfortunately this spirit is often overwhelmed or suppressed by ethical and cultural considerations of an individualistic and utilitarian nature." (Id.). Benedict means to reorient globalization, and ground it on a different framework. "Globalization is a multifaceted and complex phenomenon which must be grasped in the diversity and unity of all its different dimensions, including the theological dimension. In this way it will be possible to experience and to steer the globalization of humanity in relational terms, in terms of communion and the sharing of goods." (Id.).
At the heart of the project of Deus Caritas Est and Caritas in Veritate lie a powerful and powerfully felt need to domesticate institutions over which individuals appear to have lost control. The traditional means of domestication—through the construction of hierarchies of power relationships—is still important. But more important still is the deployment of ideas, of a set of principles to which these actors must be bound. Control of ideas, then, more than control of actors, becomes the principal means through which governance can be effected. The methodology of that governance becomes a second order consideration—Benedict is not interested in direct enforcement. He is, however, quite concerned with the theology underlying that enforcement, and with control of the mechanics of its production and interpretation. But then, so are all of those who are seeking a dominant voice in the development of the normative framework through which corporations and other economic actors will be subject.
Michel Foucault reminded us nearly a generation ago that direct power relationships were, to a great extent, now necessarily better understood as anachronisms. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan, trans., 19977, NY: Vintage Books 1995)). Caritas in Veritate reminds us that just as there is a convergence of public and private law, so there appears to be a similar convergence between law as a formal and institutionalized set of tools over which public entities exercised a monopoly power (on the one hand), and governance as private, contractual, and informal methods of controlling or regulating behavior available to any community with sufficient power to assert it. The power of ideas now disciplines law the way that positive law once disciplined behavior. Ideas become the source of behavior, and governance its vehicle, as law, like the state, becomes more embedded within the globalized institutional environment of soft and hard multi-level and polycontextual regulation. See Larry Catá Backer, Democracy Part XI: Mass Democracy and Shareholder Democracy Converge, Law at the End of the Day, June 30, 2008.
Liberal globalization offers one version of a post-legal system of governance, one grounded in rationality, consensus and participation among stakeholders. And the implications of the science/medicine centering of reality for social organization for social control--through law and habit--have also been well developed, through notions of the "disciplines" those self reinforcing and self executing habits that serve as minutely and compelling structures of behavior far more intimately connected to the individual than the traditional control through the imposition of law. See Michel Foucault, Discipline and Punish, supra. The great glory of a therapeutically based disciplinary society is that law can be reduced to a gesture--the real work of social control is focused below the level of instrumental statements from institutional actors to a complex set of ideas about normal conduct which are to be absorbed by individuals who then police themselves. Benedict offers another version. This one, too, is grounded in the disciplines and governance. But in place of consensus and participation as the source of behavior norms, Benedict offers the Church and its theology—truth derived from a divine source and entrusted to the ministers of that source on Earth. Either way, it is through the disciplines, rather than through the structures of positive law, that even the greatest economic enterprise will find itself, not merely controlled, but serving as the principal agent for its own control. That, perhaps, is the greatest truth in the normative framework of charity. See Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, Indiana Journal of Global Legal Studies, Vol. 15, 2007.
For those who would seek to operationalize new systems of governance for large economic enterprises, enterprises that have essentially escaped the power of a single state, it would be well to heed the blunt focus of Benedict’s program in Caritas in Veritate, one that is worth repeating: “Hence a sustained commitment is needed so as to promote a person-based and community-oriented cultural process of world-wide integration that is open to transcendence.” (Caritas in Veritate, at Par. 42). Whether secular or theological, whether state driven or supra national, what emerges as a key to operationalization of any normative framework are the key elements identified by Benedict: normative transcendence, communal orientation, individual person based, diffused mechanics of enforcement, tightly controlled and centralized institutionalization and control of the normative framework itself. The object is, like Foucault’s notion of disciplines, aimed at self-enforcement. This is the great transformative project of the 21st century.