The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders
Larry Catá Backer
Abstract: This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnational ordering of the corporation—the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. More importantly, the exposure of the ideology of the state reveals the extent to which it can bend the objectives of analysis from one that follows reality on the ground to one that takes and bends that reality around the state. That bending can produce substantial effects on the structure of debate and the possibilities for understanding institutional changes in behavior that quite directly challenge the normative presumptions of the privileged ideology. This effect can be exaggerated when changes appear to threaten the hierarchies built into governing ideologies. Sections III and IV explore the power of ideology in framing analysis in Gunther Teubner’s conception of the reality of self-constitutionalizing organization outside the state and in Peer Zumbansen’s theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, normatively autonomous (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.
Our conceptions of the state—and of the character of legitimacy of law as a product of domestic legal orders—have a profound effect on the way in which theorists, politicians, and lawyers are able to approach the identification of “problem” and offer “solutions.” Yet, “‘Constitution’ – like ‘nation,’ ‘state,’ ‘democracy’ and ‘sovereignty,’ appears as one of the central icons and also one of the most ambiguous ideological structures in the pool of cultural representations of modernity.” These conceptions are at base the product of applied ideology. States often evidence their ruling ideologies in their core documents—constitutions, germinal judicial opinion and the like. In the social sciences, including the academic study of law, the role of ideology—its deployment in the service of autonomous “fact” deeply camouflaged within the ideological presumptions of the systems in whose service they are deployed—help manage the framework within which the conception of “what is possible/what is right” is constrained.
This effect is particularly evident in the way in which it may be applied, without much thought for the effect of underlying ideology, to frame the very question for consideration in this essay. That question will focus on the consequences—for law systems and its connection to the state—of a fundamental “tension” that has arisen as the ideological premises of the state system, and its manifestation through law, is challenged by non-state actors, and its development of increasingly robust functional domestic legal orders. That challenge arrays the premises and ideology of the state and the state system, against two alternatives. The first is an emerging ideology of a non-state system whose organization, at its limits, might parallel that of the state system but which exists beyond it. The second presents as against those two titans, that is of the state and the non-state actor as organizational centers of law systems, a novel edifice, an emerging recognition of self constituting transnational legal orders. This conflict, and its contradictions, are having a profound effect on law, in concept and application.
Yet, currently, this very construction is possible only within the confines of the core presumptions of state ideology. Those ideological blinders perversely make it difficult to see fundamental shifts except within the premises and analytical constraints of that ideology. In this case it produces irony—the need to reshape reality to suit the ideological predilections of a system increasingly real only in the past tense, producing a tendency toward false causation, and conceptual confusion. These presumptions bend the emerging realities into the structural presumptions of a global system grounded in the state as the highest form of coercive (and therefore political) power, legitimated by a set of presumptions about its use. It assumes the legitimacy of the hierarchy of power in which organizational and governance capacity proceeds out from the state, delivered in appropriate form (law undertaken within global Rechtsstaat principles) and exercised under the supervision of instrumentalities of the political or administrative branches of the state apparatus, or those of communities of states organized in international bureaucracies.
Such power can be ceded upward (to institutional creatures that aggregate collections of states international organizations) or downward (into corporations or aggregations of civil society actors, religious organizations and the like) that are understood to exist as a subordinate incarnation of the state. It is exercised through methods (contract, custom, and the like) that are, by their very definition, inferior to (in status, form and effect) to the forms (law, regulation, etc.) reserved to the state and exercisable only under the supervision of and vindicated through the judicial apparatus of the state. Indeed, in some cases, the state system finds intolerable the idea of assertions of governance power in aggregated form outside of the body of the corporate organization of the state itself. Consequently, all power falling outside of this framework can be suppressed as illegitimate and as a threat to the global social order. In a way that reflects the scientific development of “harmonious society” principles of Chinese political organization, the ideological presumptions of the state system permit the construction of a space for outlaw enterprises whose organization, methods and norms fall outside the law, that is they fall outside the organizational parameters of hierarchy and control with its center in the state.
It is in this constructing sense that much of the debate about the rise of governance orders outside the state is framed. Its object is either to recognize the rise of such orders but then tame them within the hierarchical ordering systems of the state, or to identify their methods of governance and then seek to transform them, or vouch for them as, law. Much like efforts to include marriage between people of the same sex within traditional marriage systems, the transnational governance debate at times seems singularly focused on proving that such systems are either just like or compatible with the state system, something, for example, at the heart of recent efforts to incorporate rules for sovereign wealth funds, or that they can be made so by either broadening the current understanding of important terms—like law—or characterizing these systems as somehow still attached to the state.
The “tension,” then, which is usually identified as at the heart of the conflict between state and private actors and among the two and the emerging “transnational system” (understood perhaps best in its methodological context), is grounded in the need to domesticate governance rules outside the state, or to bring their methods more conventionally within the methodological hierarchies of rulemaking. In either case, the state remains the supreme legitimating organization, and law remains the most legitimate expression of binding authority. At the heart of the tension is the issue of self-constitution. Within the presumptions of state ideology, self-constitution is impossible, except as a political and perhaps religious act. All tension disappears when private and transnational systems bend their knee to the state, even as the state might be required to bend a bit, like the feudal French monarchs, in acknowledgement of the now ceded (and thus regularized) authority of its vassals.
This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnational ordering of the corporation—the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. More importantly, the exposure of the ideology of the state reveals the extent to which it can bend the objectives of analysis from one that follows reality on the ground to one that takes and bends that reality around the state. That bending can produce substantial effects on the structure of debate and the possibilities for understanding institutional changes in behavior that quite directly challenge the normative presumptions of the privileged ideology. This effect can be exaggerated when changes appear to threaten the hierarchies built into governing ideologies. Sections III and IV explore the power of ideology in framing analysis in Gunther Teubner’s conception of the reality of self-constitutionalizing organization outside the state and in Peer Zumbansen’s excellent theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, freer (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.
 W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University, and is the incoming chair of the Pennsylvania State University Faculty Senate. The author may be contacted at firstname.lastname@example.org. The essay was prepared for a Global Governance Debate of the Robert Schuman Centre's Global Governance Programme (European University Institute) with Professor Peer Zumbansen (Osgoode Hall, York University, Toronto, Canada) on the topic "Tension Between Public and Private Governance in the Emerging Transnational Legal Order", Florence, Italy, April 16, 2012. My thanks to my research assistants Robert Marriott (PSU Law 2013) and Angelo Mancini (PSU Law expected 2017) for their usual excellent contributions.
 There is an orthodoxy in matters of both the idea of the constitutional state and the structures for the expression of state power and control through law that is socialized especially in lawyers and those who perform services within and for government. “Never before has there been such demand from courts, lawyers and constitution-makers in a wide range of countries for comparative legal analysis. And never before has the field been so institutionalized. . . . ” Rosalind Dixon and Tom Ginsberg, Introduction, in Comparative Constitutional Law 1-17 (Tom Ginsberg and Rosalind Dixon, eds., Edward Elgar, 2011). This orthodoxy extends to international law as well, especially as it intertwines with orthodox consensus on the premises of the constitutional systems of domestic legal orders. “Proceeding from the concept of higher law, comparison has to deal with the related prescriptive aspects of constitutions as an instrument of governance and government allocating, balancing, and controlling political power, as well as a charter laying down the ground rules for social conflicts.” Gunther Frankenberg, Constitution as Law, Instrument and Culture, in The Cambridge Companion to Comparative Law 171, 172 (Mauro Bussani, Ugo Mattei, eds., Cambridge, 2012). And it is also a foundation for the self conceptions of international law and order. See, e.g., J. Samuel Barkin and Bruce Cronin, The state and the nation: changing norms and the rules of sovereignty in international relations, 48(1) International Organization 107-130 (1994); Ernst B. Haas, Beyond the Nation State: Functionalism and International Organization (Stanford U. Press, 1964). Its pedigree is long and quite selectively privileged to support the core notions that lend themselves to an understanding of the organization of power at the apex if which is the state which expresses its most authoritative commands through law, including the law creating the administrative mechanisms that regulate the daily lives of legal objects. See, e.g., Michael Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford 2004).
 Gunther Frankenberg, Constitution as Law, Instrument and Culture, supra, 171.
 See, Louis Althusser, Idéologie et appareils idéologiques d’État (Notes pour une recherche), La Pensée 151 (1970), Louis Althusser, Lenin and Philosophy and other Essays 85-126 (Ben Brewster, trans.; New York: Monthly Review 2001); Robert Paul Resch, Althusser and the Renewal of Marxist Social Theory passim. Chp. 3 (Berkeley: University of California Press, 1992) available http://ark.cdlib.org/ark:/13030/ft3n39n8x3/.
 In China, see, e.g., Constitution of the Chinese Communist Party (中国共产党章程), and State Constitution of 1982 as amended (中华人民共和国宪法). In the United States, the U.S. Constitution and, for example, Marbury v. Maryland, 5 U.S. 137 (1803). In the U.K., among others, Magna Carta, the Bill of Rights of  1688 CHAPTER 2 1 Will and Mar Sess 2 1689, and the Act of Settlement of 1701 12 and 13 Will 3 c. 2 (now amended).
 For a germinal discussion, still relevant, see N.S. Timasheff, What is ‘Sociology of Law’?, 43(2) American Journal of Sociology 225-235 (1937); Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964). See also Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805-853 (Richard Terdiman, trans., 1987).
 See generally Juergen Habermas Knowledge & Human Interests (Jeremy J. Shapiro trans., 1971); Cf., Florian Menz, Manipulating Strategies in Newspapers: A Program for Critical Linguistics, in Language, Power and Ideology: Studies in Political Discourse 227-250 (Ruth Wodak, ed., Amsterdam: John Benjamins Pub., 1989).
 Brian Leiter provides an intriguing effort around ideology that itself, through its proffer of legal positivism, tends to expose the underlying ideology of the search for a non-ideological concept of law. Brian Leiter, Marx, Law, Ideology, Legal Positivism, 101 Vir. L. Rev. (2015). Cf. Friedrich Nietzsche, Twilight of the Idols, or, How to Philosophize with a Hammer (Duncan Large, trans., Oxford University Press; Reissue edition, 2009) (chapter, the four great errors).
 See, e.g, Gunther Teubner, Law as an Autopoietic System (Cambridge: Blackwell, 1993).
 See, e.g., Gunther Teubner, Constitutional Fragments: Societal Constitutionalism in the Globalization 2012
 See, e.g., essays in Terence C. Halliday and Gregory Shaffer, eds., Transnational Legal Orders (Cambridge University Press, 2016); Lawrence Friedman, Borders: On the Emerging Sociology of Transnational Law,” 32 Stan. J. Int’l L. 77 (1996); Gralf-Peter Calliess & Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing 2010); Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press 2012).
 See, Marc Amstutz, Métissage: On the Form of Law in World Society, in Zeitschrift fur Vergleichende Rechts-wissenschaft 336-360 (2013).
 See, e.g., Yale H. Ferguson and Richard W. Mansbach, Political Space and Westphalian States in a World of Polities: Beyond Inside/Outside, 2 Global Governance 261-287 (1996); Immanuel Wallerstein, The Inter-State Structure of the Modern World System, in International Theory: Positivism and Beyond 87-107 (Steve Smith, Ken Booth, Marysia Zalewski, eds., Cambridge University Press, 1996).
 Cf., Friedrich Nietzsche, Twilight of the Idols, or How to Philosophize with a Hammer [Die Götzen-Dämmerung] (Walter Kaufmann and R.J. Hollingdale) (chapter on ‘The Four Great Errors’). Available http://www.handprint.com/SC/NIE/GotDamer.html.
 See, e.g., Ralf Michaels and Nils Jansen, Private Law beyond the State? Europeanization, Globalization, Privatization, 54(4) The American Journal of Comparative Law 843-890 (2006).
 See Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113(3) Penn State Law Review 671-732 (2009).
 Sometimes Rechtsstaat notions are more myth than reality, gesture than substance, especially in the modern administrative state, where the connection between the polity and the sources of rules is tenuous at best. See Daniel R. Ernst, Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932, 23 Stud. Am. Pol. Dev. 171-88 (2009). Europeans understand this at the level of European Union law-politics as the democratic deficit. See, e.g., Kevin Featherstone, Jean Monet and the ‘Democratic Deficit’ in the European Union, 32(2) Journal Common Market Studies 149-170 (1994).
 Criticized in Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford 2010).
 See, e.g., José E. Alvarez, International Organizations as Law Makers (Oxford, 2006); Benedict Kingsbury, Nico Krisch and Richard B. Stewart, The Emergence of Global Administrative Law, 68 (3/4) Law and Contemporary Problems, 15-61 (2005).
 See, e.g., Armin von Bogdandy, Ingo Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers, in International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance 3-33 (Armin von Bogdandy, Ingo Venzke, eds., Springer 2012); Kenneth W. Abbott and Duncan Snidal, Why States Act through Formal International Organizations, 42(1) Journal of Conflict Resolution 3-32 (1998).
 See, e.g., Harvey Feigenbaum, Jeffrey R. Henig, Chris Hamnett, Shrinking the State: The Political Underpinnings of Privatization (Cambridge, 1998); Saskia Sassen, The State and Globalization, in The Emergence of Private Authority in Global Governance 91-112 (Rodney Bruce Hall, Thomas J. Biersteker, eds., Cambridge 2002). For a criticism from the perspective of the protections of public law, see, e.g., Tally Kritzman-Amir, Privatization and Delegation of State Authority in Asylum Systems, 5(1) Law & Ethics of Human Rights. 194–215 (2011); Robert Koulish, Blackwater and the Privatization of Immigration Control, 20 St. Thomas L. Rev. 462 (2007-2008); Harold J. Sullivan, Privatization of Public Services: A Growing Threat to Constitutional Rights, 47(6) Public Administration Review 461-67 (1987).
 See, e.g., Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, 14 ILSA Journal of International & Comparative Law 499-523 (2008).
 See essays in Cooperativas y socialismo: una mirada desde Cuba (Camila Piñeiro Harnecker, ed., Editorial Caminos 2011).
 Seventeenth National Congress of the Communist Party of China, Harmonious Society, (Sept. 29, 2007), available http://english.people.com.cn/90002/92169/92211/6274603.html. Larry Catá Backer, Studying the "Higher Law" of Scientific Development (科学发展观) in Chinese State-Party Constitutionalism, Law at the End of the Day (July 5, 2010), available http://lcbackerblog.blogspot.com/2010/07/studying-higher-law-of-scientific.html.
 Larry Catá Backer, The Drama Of Corporate Law: Corporate Narrative Between Policy And Law, 2009 Michigan State Law Review 1111 (2009) (reviewing David A. (Bert) Westbrook, Between Citizen And State: An Introduction To The Corporation (Paradigm Press 2007)).
 International Working Group of Sovereign Wealth Funds, Generally Accepted Principles and Practices (GAPP)—Santiago Principles, (Oct. 2008), available http://www.iwg-swf.org/pubs/eng/santiagoprinciples.pdf.
 Cf., Peer Zumbansen, Why Global Law is Transnational, 4(4) Transnational Legal Theory 463-475 (2013).
 Gunther Teubner, Fragmented Foundations: Societal Constitutionalism Beyond the Nation State, in The Twilight of Constitutional Law: Demise or Transmutation? (Petra Dobner und Martin Loughlin eds., Oxford University Press 2009).
 Though even here, the autonomy of religion as against political acts remains in doubt. Consider in this context the furious effort to avoid recognition of some strains of Islam as too violent or intolerant to be recognized as “legitimate” expressions of religious will. These ideological blinders were much in evidence as changes in religious expressions were conflated with Western political expression to change its complexion from religious to political expression. See, e.g., Peter W. Rodman, Policy Brief: Co-opt or Confront Fundamentalist Islam?, 1(4) Middle E. Q. (1994), available http://www.meforum.org/201/policy-brief-co-opt-or-confront-fundamentalist.