(From Spencer Heath MacCallum, The Rule of Law Without the State, Ludwig von Mies Institute, Sept. 12, 2007)
From my essay: Governance Without Government: An Overview
Benito Mussolini once declared: “for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people” (Mussolini 1932, ¶ 7). This idea, shorn of its fascist ideology, remains both popular and foundational for the functioning of the state system and the international public law frameworks it supports (Alvarez 2005, 45-64). That idea of the state continues to frame the way in which elites approach the issue of public authority, the privileged position of the state (operated through the apparatus of its government), and the theoretical starting point for much discussion of law and governance (Backer 2008d). The state remains at the center of efforts to vest it with an ever expanding authority derived from some source or other—the people, some divine being, historical determinism or the like (Backer 2009c)—even as regulatory authority seeps outwards to international public and non-state actors. What lies beyond the state is not the stuff around which a government can be organized—its effects are merely felt as governance (Commission on Global Governance 1995; Ruggie 1982) rather than pronounced authoritatively through government (the state). Positing the central concern of this chapter as governance without government, then, suggests an identity between government and the state and a hierarchical relationship between governance and government.
This chapter examines the possibility of governance without government and considers the more radical notion that government itself can exist without the state, that is, that the organization of governance does not require a territory from out of which to project governance power. And thus my thesis: Globalization has made it possible to develop governance spaces outside both the state and public international organizations that can produce its own internal constitution exiting autonomously from the government of the state (and its public law frameworks), though in communication with them. One reaches here the limits of extraterritoriality: the normative framework of the discussion changes from one centered on the management the legitimacy and mechanics of the projection of governance power by the government of a state into another, or the protection against the projection of governance power onto a territory, to the development of a framework for the management of the infiltration of governance power from non territorially based governments. In other words, one moves from a discussion of the framework for managing the authority of the United States to project its regulatory power (for example over chemicals in consumer products) to Chinese manufacturers, to one where the authority of Wal-Mart to impose its regulatory determinations (by determining the content of the products it will order and sell) on both the United States and China moves to center stage (Backer 2011).
The chapter first provides an overview of the extent of contemporary reticence to embrace any “governance without government” framework that strays too far from the embrace of the state system and public power, that is of the possibility that communities can come together and share a governance structure without the prior requirement of a state or of the government that serves as the incarnation of the state. Following Renate Mayntz, it understands governance as the constellation of institutionalized modes of social coordination that produces and implements collectively binding rules, or collective goods (Mayntz 2005, 83-85). The focus is on an examination of the strands of the conventional theoretical debate and more particularly on representative work sympathetic to the project of governance without government. It very briefly outlines the normative framework of the conceptual framework for thinking about governance without government (that is without the state). This debate tends to suggest variations on a common theme: while non-governmental actors are, to an increasing extent, exercising governance power, defined in a variety of ways, none of these governance systems has achieved “escape velocity” from the orbit of the state. To some extent, conventional writing still suggests that these governance systems remain dependent on and subordinate to the legal orders of states or their international bodies. More pointedly, some make the case that efforts to theorize or produce evidence of the plausibility of any escape from the orbit of the state is neither necessary, feasible or prudent (Bodgandy, Dann and Goldmann 2008; Lobel 2007). For others, that search for autonomy is irrelevant. In a complex global legal order made up of intertwining governance regimes reconstituting governance within a “mixed, public-private, dynamic norm creation process” (Calliess & Zumbansen 2010, 277) what is useful is recognition of the embededdness of norm affecting governance mechanics outside the state. This section suggests that this conversation about the limits of government without governance can be usefully organized into five great currents: as illegitimate; as a species of devolution; as management; as mimicry; and as a component of a larger coherent regime producing something of a public-private transnational system. For all of its innovation, though, much in the academic literature still situates governance very much “in the State” (Mussolini 1932, ¶ 7) or its instrumentalities either directly, by affirming the supremacy of law (national or international, public or private) in some sort of ordering involving public and private actors. Whatever its form, the state is never far from the center; the “state is nothing else but the mobile effect of a regime of multiple governmentalities” (Foucault 2004, 31 January 1979, 77).
The chapter then proposes the contours of the constitution of such a governance framework beyond both government and state. Once the identity of state and government is displaced, the possibility of the governmentalization of non-state sectors become visible—not as some sort of appendage to the state, or even perhaps as a component of a complex weaving of regimes that produce norms, but of government in their own right. For that purpose, it looks to the government of three systems of non-state governance. The first looks to the self regulating corporation (Teubner 2009)—a corporation that can regulate itself through the ordering of its world wide operations, and that can project its regulation extraterritorially, that it outside of its own corporate “internal governance territory” through its supply and value chains. The second examines the constitution of a government for the regulation of the behavior of corporations funded under the framework established through the Organization for Economic Cooperation and Development (Backer 2008). The third considers the governmentalization of governance norms for business and human rights through the development of the United Nations Protect-Respect-Remedy framework (Backer 2010). The second and third consider governance systems organized within the international legal order. The three systems acknowledge both the limits and tentative nature of this exercise in power that is neither grounded in state-based law systems nor dependent on the state and a political-territorial based entity for its legitimacy. The functionally differentiated regulatory communities through which governance is emerging do not reproduce the state (Esmark 2009, 353-359); they represent the power of individuals and groups that consent to come together for jurisdictionally or temporally limited purposes and bind themselves to rules they have created for the purpose of furthering the objectives of that union. This suggests an institutionalization of hard governance, of government, in the absence of the state. The idea of the state can morph from a territorially privileged totalitarian ideal, understood in its sense of the state as the ultimate repository of all authority, to a social system expressed through territory (Rokkan 1999, 104) and embedded in more complex coordinated governance. Alternatively, the state can be understood as a political actor limited ultimately to what it can control within or through a connection to its territory (Teubner 1997) including governance regimes of non-state actors.
To read more download the draft by following THIS LINK and download the manuscript.
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