Friday, April 28, 2006

Rethinking Aristotle's Question, "What is a City?": Sovereignty and Non-State Actors in the 21st Century

An understanding of the nature, power, authority, and legitimacy of collective bodies has engaged philosophers and political theorists since before the time of Aristotle. The character, nature and limits of collective political commuinities – particularly that of nation-states – has proven to be particularly contentious. Complexity is added to contention in the twenty-first century as economic, social, identity-based, and religious communities seek--and sometimes succeed--in exercising authority once reserved solely to the political community of nations.

Aristotle famously asked (himself): "What is a City? For upon this there is a dispute: for some persons say the city did this or that, while others say, not the city, but the oligarchy or the tyranny. We see that the city is the only object which both the politician and legislator have in view in all they do: but government is a certain ordering of those who inhabit a city" (Aristotle, Politics Book III, ch. 1, at 66).

Drawing on insights from Aristotle’s Politics (sadly, Aristotle's answer does not completely satisfy in a world composed on communities in which ethnicity, religion, race and other diostinguishing characteristics of social organization are not held constant), and Michel Foucault’s Discipline and Punish it is possible to conceive of collective organizations as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed inside. I argue that these insights are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. I then explore the consequences of this premise in two contexts – the first is that of the multinational corporation seeking to exploit the wealth of a political community, and the second is that of a non-state organization engaged in acts of mass murder. In the 21st Century, both corporation and terrorist organization have become Aristotle’s "City."

Consider the following questions: Is it possible to declare war on Osama bin Laden? Should Daimler-Chrysler AG be accorded a formal voice within the framework of the WTO? Is the Communist Party of China right to view the Fulang Gong, or any otjer autonomous collective not controlled by the Communist Party itself, as collective competitors for the control of the Chinese Communist state, and on that basis treat them as a sovereignty threatening enemy? To what extent are any collective entities free of the authority of the states in which or against which they operate? To what extent do either constitute autonomous institutions free of dependence on the “master collective” – the nation-state?

Aristotle provides a useful starting point for a consideration of the autonomy of collective bodies. I am willing, like Aristotle, to concede the autonomy of the nation-state as embodying the grundnorm. This autonomy of the nation-state, as the premier form of the collective body is based on shared custom. Thus, a mere multitude of people living together is insufficient to constitute a state, “for even if persons so situated should come to one place, and every one should live in his own house as in his native city, and there should be alliances subsisting between each party to mutually assist and prevent any injury being done to the other, still they would not be admitted to be a city by those who think correctly, if they preserved the same customs when they were together as when they were separate.” (Aristotle, Politics, Book III, ch. IX, at 83). But the autonomy of the collective body, as it presents itself to strangers, does not pass through to the internal organization of the collective, “for a city is a certain number of citizens.” (Id., Book III, ch. I, at 66). Not every person that forms part of the collective is a citizen of the collective body. The city is reserved for those who preserve the same customs.

Aristotle looks to notions of wealth and power as the basis for the social ordering within a city. Divisions within any collective on the basis of wealth and status provide the basis for the formation of states as monarchies, democracies or aristocracies, or for the degeneration of states into oligarchies or tyrannies. Law itself can play only a small, and perhaps perverse, role in the character of collectives. “For a law derives all its strength from custom, and this requires long time to establish; so that to make it an easy matter to pass from the established laws to other new ones, is to weaken the power of laws.” (Id., Book II, ch. VIII, at 50).

Aristotle suggests the connection between law, custom, social order, political power and the constitution of a state as we know it. But he makes no claim that law is inevitably tied to legilation, or that the power to order social behaviors is inseparably tied to the sonstruction of political community. It seems clear that law, custom and social order can exist separate from the political community that draws it opower from their invocation. Eacj of those is used, but not owned, by the "city." Thus, the suggestion appears to be that a certain mix of fundamental ingrediants, when put together in a number of ways, cam produce a "city," a community with power over its members.

Modern theory has added a set of more nuanced insights. Most useful is Michel Foucault’s argument, in his work Discipline and Punish, that collective organizations can be understood to exist as autonomous and sovereign, when viewed externally, and as coercive hierarchical disciplines when viewed internally. Culture, as practiced within a collective body, is the perfect disciplinary institution. It is "a network of mechanisms that would be everywhere and always alert, running through society without interruption in space or in time." (Foucault, Discipline and Punish, 208-209). What Foucault calls the "disciplines" evidences the separablity of the elements that make for sovereignty. The disciplines provide a way of understanding that political community, law, and power, are not necessarily tied together in a single form producing a single sort of authentic power community--the nation-state. Sovereignty, understood as a self-conscious autonomy backed by power among a community of individuals, is not invaliably tied to the organization of states.

Yet Aristotle’s Politics, and Foucault’s Discipline and Punish, though both instructive, fail us when we consider collective bodies of great power and cohesion other than the nation-state. Traditional thought viewed the city as the culmination of social organization, with all other forms of collective organization merely an imperfect part of this whole. All collectivities strive toward the construction of a state. “For which reason every city must be allowed to be the work of nature, if we admit that the original society between male and female is; for to this as their end all subordinate societies tend, and the end of everything is the nature of it.” (Aristotle, Politics Book I, ch. II, at 3). Yet governance of the individuals, the citizens of non-state collectives, requires the same effort to unitary custom. Supreme power is now shared by a nation- state with a host of state and non-state actors.

Technology and custom has produced global systems of organization that evidence Aristotle’s postulate that ultimate sovereignty is lodged only in the state. The insights developed to explain the state as an autonomous body are equally applicable to formerly non-sovereign collective bodies exercising sovereign authority – corporations, revolutionary organizations, organized criminal networks and religious organizations – collective bodies exercising sovereignty that overlaps with that theoretically reserved to the nation-state. Government has once again begun to pass to any number of collectives exercising portions of the power once exercised exclusively by nation-states. Each of these has become an Aristotelian ‘City.’ The formation of custom has begun to move to supra-national bodies whose work applies to all collectives. In this emerging reality there is little difference between the nature of a nation-state and that of a corporation, or of an organization such as Islamic Jihad? The corporate actor is ‘fictional’ because it is not identical with the real organization but only with the semantics of its self-description. It is ‘real’ because this fiction takes on structural effect and orients social actions by binding them collectively. Max Weber came closes to capturing this ambivalence by treating collectivities only as ‘ideas’ in the heads of judges, officials and the public, while at the same time assigning them ‘a powerful, often decisive, causal influence on the course of action of real individuals.’” (Teubner 1988 at 138; Weber 1978 at 13). As a result, modern international law, based on Aristotelian notions of a hierarchy of collective bodies headed by sovereign nation-states, no longer reflects the realities of the power or organization of the multitude of collective demi-sovereigns that now operate throughout the world.

The consequences of these premises are far reaching first in the context of corporations and then in that of non-governmental organizations that assert a sovereign capacity once thought exclusively as belonging to the state. Modern multi-national corporations may seek to exploit a traditional nation-state. Traditional analysis would suggest a hierarchy of authority in which the nation-state assumes dominance in any relationship between it and the corporation. After all, a state has a soul – a corporation has shareholders. Yet, when the corporation is large enough, old enough and free enough of dependence on any one state for its capital, labor, or markets, the opposite may occur. Moreover, where the corporate collective acts as the agent of another nation-state, or regional trade collective, the political authority of the corporation may vastly exceed that of the nation-state. Is the corporation a state actor? Conventional theory suggests it is not. This economic collective body should be regulated like any other merchant on the street corners of any city. But it cannot be. It acts with all the authority of a state actor. Its autonomous and independent character is as well defined as that of the nation-state that it seeks to exploit. Its disciplines, its culture, are as compelling as those of any political community. Should it not be deemed a state actor? Or perhaps it should be considered a proxy of the state – like the old Hudson’s Bay and East India Companies. Treatment as a sovereign requires a disregard of the authority of another nation to regulate ‘creatures’ of its own creation. Yet, treatment as an independent actor will result in a disregard of the power of the incorporating political state to control its subordinate creatures.

The second requires consideration of a non-state organization engaged in various political acts within and outside the borders of any one nation-state. Consider a series of acts of mass murder conducted under the auspices of an organization that determines that a nation-state is its enemy for reasons of religious, cultural and political difference. The organization has effectively utilized the most potent symbol of state sovereignty – the control of violence. It has deployed armies. It has killed. Yet, under conventional theory, the organization is merely a group of individuals whose actions are on a par with personal criminal activity. This criminal activity must be controlled like any random act of individual criminal activity within a state. But it cannot be. The collective acts with the authority and power of a state. Ought the collective be treated like a sovereign? If the answer is yes, then should the United States conclude that a particular organization was responsible for the destruction of the World Trade Center in New York, the United States may declare and conduct a war against this entity. But should, instead, this entity be considered a proxy of the nation-states that have consented to its actions or otherwise participated in the activities of the collective? Accepting this more traditional notion could permit the United States to treat a nation-state on whose territory the offending organization operated, as the director of that organization, and on that basis declare and conduct a war against it. Treatment of non-state collectives as sovereigns must result in an abandonment of the exclusivity theory of political sovereignty within nation-states. Such treatment would loosen the relationship between a particular geography and a sovereign collectivity. Non-state collective organizations would effectively function like a state within the geography of a nation-state. This is wholly outside traditional notions of international intercourse. Yet, such a loosening has marked theory for some time. Consider the Jews, until very recently, a stateless collectivity capable of independent political activity within nation-states traditionally constituted. Even today, Jewish ties to a geography are hotly disputed by another collectivity, Islam, which itself claims an identity tied both to territory (the dar al-Islam) and to the character of a universal stateless being. Is any ideological or cultural community different?

In the 21st Century, both corporation and terrorist organization have become Aristotle’s city. The notion of distinctions between state actors, holding a monopoly on power, and other collectives, clearly subordinate to the state actors, holds no practical reality in the 21st century. Collectivities that operate only as the expressive vehicles of the individuals in charge also fail to grasp the parallelisms between state and other collective organizations. In the future, multiple sovereigns will exercise partial and overlapping sovereignties in an increasingly confused world. The phenomena of multiple demi-sovereigns cannot be understood except through a linked analysis focusing on law, cultural sociology, and philosophy. The development of the quasi-sovereign provides a critically important venue for the interdisciplinary study of law, culture and the humanities. Law alone fails to adequately explain the emergence of new quasi-sovereigns, and has provided an impediment to effective responses by other political communities. Cultural studies provide insight into the nature of custom and discipline which provide the structure of these sovereigns. Political theory and philosophy provide the means of constructing a new basis for understanding emerging forms of political organization that, in turn, can equip law with the language needed to regulate the new reality in accordance with emerging custom on a global scale.

Reference List:


Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.


Gunther Teubner, Enterprise Corporatism: New Industrial Policy and the ‘Essence’ of the Legal Person, 36 AM. J. CORP. L. 130 (1988)

Max Weber, Economy and Society 13 ff (1978).

Sunday, April 23, 2006

Director Independence and the Duty of Loyalty: How Delaware Hasn't Quite Gotten it Right

Director independence rules are an important component of the duty of loyalty as both a substantive standard and a standard of review. To apply the director independence standards, courts necessarily invest relationships with legal consequence beyond the actual relationship itself. Messiness, for example, can be tidied by taking refuge in formal structural economic analysis. Analysis can also be simplified by taking refuge in stock stories and assumptions. Both, it seems, is what the Court of Chancery did in the Disney litigation in which shareholders challenged both the very lucrative employment agreement awarded to Michael Ovitz to become president of the Walt Disney Company in 1995 and the even more generous terms under which that contract was terminated in 1996. The Disney litigation, however, ought to have provided a rich vehicle for the examination of reality beyond formality and stock assumptions. This Article focuses on the application of the independent director standard to one director in particular: Reveta Bowers, an African-American female and the principal of the school that Michael Eisner's children attended. What makes Ms. Bowers particularly interesting is the peculiar way in which the Chancery Court sought to apply the director independence standards to her: the Court of Chancery effectively rejected plaintiffs' attacks on her independence on public policy grounds, that is, were Ms. Bowers' independence effectively challenged, 'regular folks' would be unable to serve on boards of directors of corporations like Disney. Though that analysis has attracted little attention among legal academics, the Chancery Court's application of a peculiar construction of the director independence rules for Ms. Bower’s benefit opens a window to the way corporate law intersects with social assumptions of race and class expressed as public policy. The inherent difficulties arising from that intersection and the resulting contradictions of the current Delaware approach to directorial independence in the face of competing policies—often unwritten, and not necessarily derived from legislative pronouncements—suggest that the current Delaware independence standard is of limited value in duty of loyalty cases. These deficiencies, however, might be overcome by incorporating into the narrow formalism of the current standard some of the relational insights of critical race and feminist theory. Relational analysis exposes the subtle ways in which class, gender, and race affect the application of standards in fact driven contexts-like determinations of director independence - and may help courts and litigants strive for fairer and more realistic results. Emerging from this analytical approach is a fundamental notion: subordination and dependence tend to be the critical factors in determining the independence of relationships, even those considered primarily economic relationships. This is a very different analysis from that of Vice Chancellor Strine in Oracle, an approach criticized by the Delaware Supreme Court.

In place of the current Delaware analysis, I have suggested, in a recently published Article--Larry Cata Backer, Director Independence and the Duty of Loyalty: Race, Gender, Class and the Disney-Ovitz Litigation, 79 St. John's Law Review 1011 (2005) -- that an alternative approach, the touchstone of which is subordination and burden shifting. Subordination would encompass all hierarchical and affective relationships. Subordination should serve as both a substantive rule—subordination destroys all claims of independence. Subordination should also serve as a procedural rule—establishment of a relationship of subordination ought to shift the burden of proving independence from the plaintiff to the director seeking to establish independence for purposes of validating board of directors' actions. The Article ends by assessing the utility of the proposed subordination-relational standard. Application of the standard to the facts of the Disney litigation demonstrates the ways in which the alternative standard yields different results. Had the Chancery Court applied a subordination based relational standard it would have been far more likely that a greater number of directors, perhaps even more than a majority of directors, might have been found not to be independent. Application of such a standard might have avoided the approval of the Ovitz Employment Agreement as ultimately signed, the invocation of the termination provisions as ultimately approved, or the litigation over that agreement that sapped the resources of the corporation from 1997 through 2005. And the price to be paid would have been small enough: ensuring that directors actually approving the transactions could meet the more rigorous and legitimating standards of a subordination based relational approach to independence.

Friday, April 21, 2006

Insulting China: The Politics of Gesture and Globalization with Chinese Characteristics

The recent visit of China's president, Hu Jintao, to the United States, was marked by lots of talk and ceremony. The Americans, including the American press, like most Western cultural and news organs, covered the supposed substance of the visit--progress on issues of interest to the United States (trade, Iran, human rights) and China (Taiwan, trade). For the Americans, it was somewhat humorous to report two gaffes in the visit. The first was the unfortunate reference to the playing of the anthem of the People's Republic as that of the Republic of China (a clear reference to Taiwan). The second, was the even more unfortunate inability to appropriately screen the guests at the White House welcome ceremonies for the Chinese President as a result of which a member of Falun Gong managed to gain entry to the ceremonies and heckle the President Hu Jintao and publicly challenge the Chinese President's human rights record (which, of course, from a Western perspective is fair game).

For the American media, these incidents merited little more than a bemused coverage. The television media delighted in airing both events, if only for the purpose of showing that this Administration is sloppy, or careless, or less than optimally competent. That message was meant to be used in the internal battle for the authoritative ground in the debate over the American policy in Iraq (to some extent in any case). The American political class ignored both gaffes. They were after 'substance.' Only an article written by Joseph Kahn for the New York Times ("In Hu's Visit to the U.S., Small Gaffes May Overshadow Smaller Gains") appearing carefully balanced between obscurity and prominence in the center of the first section of the Saturday (April 22) edition appeared to appreciate the importance of these incidents.

My guess is that the Chinese viewed these events in a very different light. For the Chinese, I might imagine that the gaffes were the most meaningful part of the trip. For the Chinese, symbol, rather than substance, can be the most important part of state visits. Technocrats and specialists are meant to actually produce the work that is then authenticated by the head of government. Visits of heads of state are meant as gestures symbolic of the substance to follow (or that precedes it). Every act capable of symbolic meaning is assessed for the information it conveys with respect to substance, personal relationships and mutual standing between the parties. In this context, it would be difficult to convince the Chinese that everything done during a state visit was not deliberate.

And who could blame the Chinese for cultivating that belief in this case? Both incidents exposed the president of the People's Republic to very pointed humiliation at very public times--indeed at times when protocol made it difficult for him to react. They were pointed in very politically sensitive ways--the anthem 'error' mocked the Chinese stance on Taiwan. The 'journalist' error provided a way for the Administration to rebuke the Chinese President about China's human rights record indirectly. Neither error was plausible as error. There is little room to believe that the difference between "People's Republic" and "Republic of," well known since 1949, was lost on the translator responsible for announcing the playing of the anthem. There is even less plausibility in the excuse about the 'infiltrator' to the welcoming ceremonies. The Bush Administration has prided itself since the September 11th terror attacks on keeping all undesirables away from the President. The White House is virtually impossible to penetrate. Even the President's meetings with 'the people' are as carefully vetted as any event in old Stalinist regimes to permit only friends of the regime to attend. All of this is well known and often reported. In this context, it is difficult to believe that someone might have been able to slip in past security 'under the radar.'

Not that the Chinese should have much cause to be surprised. And it is possible that they might have thought they had it coming. From their perspective, the Chinese President delivered a wonderfully significant insult to the American political establishment in general--and the sitting American President in particular--by arranging a visit with the head of Microsoft, a powerful transnational business enterprise, ahead of his meetings in Washington. If so, then the 'gaffes' were the price the Chinese had to pay in a way that mattered most to a symbol-conscious regime. Because the Chinese state apparatus also never does anything without careful deliberation, then the Americans might have been right to repay insult with insult.

But perhaps, multinational enterprises are more important to the Chinese than the American political establishment. If, indeed, global corporations have now assumed a fairly independent power to further global integration through their economic operations (all with substantive effects--to be sure), then it seems appropriate that the Chinese President arrange a state visit to a source of that power, every bit as important as the visit to the political power from which the economic power operates. For a sense of that power, see, Backer, Larry Catá, The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality, Tulsa Law Journal, Vol 41, 2006.

If this is the case, it might to possible to assume that no insult was intended directly, but a powerful message was meant to be conveyed. For the Chinese, it may be more important to arrange harmonious relations with the sources of American economic power than it is to develop any sort of deep relationship with the sources of American political power. Indeed, given the great power of economic determinism in Chinese political philosophy, it may make more sense to treat the great American multinational corporation as a political entity than it is to treat the American political establishment as critical to global economic development.

Thus, for the Chinese, the American state may be less relevant than American corporations. This is an important message for the United States. Yet that message seems to be lost on political Washington, to its long-term policy making detriment. Though that is hardly surprising given context in which Washington looks out on the world. See Backer, Larry Catá, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006

I do not mean to suggest that it should be American policy never to insult (or confront) a visiting head of state. Quite to the contrary, such symbolic actions can sometimes pay big dividends. I do mean to suggest that American policy makers should not be so arrogant--or so clumsy--that they lose control of this valuable tool. To insult the Chinese president because we meant to (whether that course would have been wise or not is another story) is one thing; to insult the Chinese President because we were careless is quite another.

In either case, those actions will affect our relationships with the Chinese for a while. Watch what happens in Cuba and Iran as the Chinese contemplate payback. Consider the extent of Chinese intransigence on Dafur (to protect its oil interests with Sudan) when you hear about the improving relationship between the United States and the People's Republic. More important still, watch what happens as the Chinese state bypasses American political institutions as it forges relationships with key American players in the global economy. At a minimum, the actions, or clumsiness, of the current Administration provides all the symbolic reasons China needs to support its policy of democratization with Chinese characteristics. I will look forward to interpreting the meaning of the 'gaffes' offered to our officials on their next state visit to China.

Thursday, April 20, 2006

Warfare Since Iraq: Has the Time Come for International Standards of Collective Responsibility Under Law?

The current phase of the war in Iraq has put a spotlight on one of the great perversities of modern international law. How is it that even as Iraqis appear to be marching toward elections in January, Iraqi institutions are producing and distributing manuals for suicide attacks that stress violent intolerance as a central element of Iraqi identity? The structure of modern human rights and humanitarian law emphasizes individual responsibility for specific acts of violence, and especially for acts of violence grounded in some sort of group affiliation. The resulting system of justice obsesses over the identification of specific individuals who must be held accountable for specific actions connected with certain forms of violent interactions between groups. At the same time, the system is indifferent to institutions and socio-cultural collectives that generate and sustain those normative frameworks that make such specific individual acts of violence possible and acceptable. The result is perverse: the international system of human rights and humanitarian law, the laws of war included, effectively protect, even subsidize, the creation and maintenance of social and political normative structures based on hatred of the ‘other’ while limiting legal responsibility and punishment to individuals.

The character of the war in Iraq shows the way in which the normative legal framework of modern international law protects local (national, ethnic, religious, racial, or other) communities willing, at some level, to offer their leaders to the world community as payment in full for their (local) transgressions. In return, the local community, and its infrastructure for the production of cultural norms justifying violations of global human rights norms, is left intact. Thus, the international community did not stand in the way of the Americans when they sought to hunt, and Iraq to give up, a small group of government officials of the old regime, the most prominent member of which was Saddam Hussein. Each of these individuals will be tried for their own crimes, as well as for the crimes of the Iraqi people by proxy. Left substantially undisturbed in this great pacification have been those key Iraqi institutions – institutional Shi’a and Sunni Islam, organized intellectual elites, media, and ethnic, family and other collectives -- that together produce the content of Iraqi identity. To the extent recognized at all, Iraqi institutions were understood as part of a caricature – the passive tools of a diabolical trans-border criminals preying on a gullible population of the willing. Yet these collectives were not passive. Each played an important role in the construction of the norms shaping the conflicts in Iraq, as well as between Muslim and non-Muslim states. Each continues to play a similar role in shaping what it takes and what it means to be a member of the “Iraqi” collective.

The time has come to re-examine the current taboo against collective responsibility. To a large extent, modern global human rights regimes institutionalize the rejection of the excesses of traditional forms of collective punishment. Collective punishment is condemned as indiscriminately targeting people, property, land, and social organization. Traditional collective punishment is likewise condemned for its abhorrent methodologies: extermination, expulsion, wealth transfer, social reorganization or pacification of political and economic institutions, or conversion. Reduced to its essence, these criticisms point to the centrality of the protection of the ‘innocent individual’ in the context of group conflict. The ‘war’ against Mr. Hussein’s government, like the economic sanctions before the last invasion, provides a nice example of these limitations – war and economic sanctions had greatest effects on individuals least responsible for the conflict. A system of communal responsibility that minimizes the problem of the ‘innocent individual’ might permit action against institutions consistent with current notions of human dignity.

It is time to recognize explicitly in law what governments and other combatants have long understood: targeting culture is an important part of any form of modern warfare. It can also be a most useful method of holding communities to emerging international standards of human rights in the production of ideas and the subsidy of action. There has been some movement among national and transnational actors in this direction – the most important of which include ‘truth and reconciliation’ commissions, and the suppression of the institutional ‘infrastructure’ of ‘terrorist’ organizations. But these efforts remain tentative and unfocused. Emerging conceptions of human rights may provide the key to fashioning effective and acceptable systems of collective responsibility. A general normative basis for such action would be useful. Certain fundamental principles – democracy, accountability, human dignity and proportionality -- may provide a basis for constructing such systems. Whatever its form, cultural behavior modification consistent with basic international norms might serve as the appropriate goal of collective sanctions. Reorienting notions of collective responsibility along these lines may solve the problem exemplified by the perversity limiting the effectiveness of the overthrow of Mr. Hussein, while avoiding the pitfalls and unfairness of traditional conceptions of collective punishment.

For a discussion of a more modern approach to this traditionally taboo subject, see Larry Catá Backer, The Führer Principle of International Law: Individual Responsibility and Collective Punishment, 21 PENN STATE INT’L L. REV. 509 (2003).

Saturday, April 15, 2006

Economic Globalization and the Role of the Nation-State in a Global System

The contours of the debate about the effect of globalization on the global state system are well known. Perhaps less well understood is the way in which major views of globalization all tend to posit the end of the state system. The result does not change even when considering state friendly conceptions of globalization. More interesting still is that even the great anti-globalization perspectives do little to defend the traditional state system. Whatever the form of opposition, each also essentially posits a global system in which the state plays a subordinate role.

The result is the same whatever the perspective one adopts about the relationship of globalization and the nation-state. Consider three very different perspectives on globalization and the state. The first proceeds from the logic of the so-called Washington Consensus of private economic transactional neo-liberal globalization. The second looks at economic globalization from a more traditionally state centered perspective. The third embraces the analytical framework current in certain parts of the developing world and among some major Western religious institutions in which it takes the form of a moral critique of Western led economic globalization. All three ultimately posit the same consequence for state systems as the foundation of world order – a replacement of the traditional state system as the foundation of law making in the global system of political governance. Each differs only in the nature and form of the system that will replace this system. In the first view all states ultimately suffer the same fate, though perhaps not all at the same time. Political power becomes more diffuse and shared among political, economic, religious, scientific and other communities. The second and third produce a perversion of the state system with a few hyper-states acting as the driving force of international norm making over an amalgamation of other actors, including states, and other political, economic, scientific, religious and related communities.

In the much earlier language of classical political theory, each of the perspectives on globalization and the state suggest the rise of one or another form of Aristotelian aristocratic governance—in which a few states, alone or in concert with powerful private entities, will effectively govern for the community of nations subject to a set of norms that transcend national boundaries (ARISTOTLE, POLITICS (WILLIAM ELLIS, TRANS. 1912)). Of course, Aristotle noted that aristocracy comes in a wide variety of forms, from simple semi-democratic to monarchical aristocracy. Applied by analogy to the governance by states within a community of nations, the former is likely to prevail where a large body of the community is of moderate means, and the latter where few in the community have enormous wealth and power. (See id., at 118-119 (Bk. IV, Ch. VI)). To the extent that any such form of governance takes into account the common good, Aristotle tended to be indifferent as to the form of governance; however, in their corrupted form “a tyranny is a monarchy where the good of one man only is the object of government, an oligarchy considers only the rich, and a democracy only the poor.” ( Id., at 79 (Bk. III, Ch. VII)).

The first suggests a more vestigial role for all states and the rule of amalgamations of private and public power, the characteristics of which will be determined by the aggregate desires of individuals pursuing private benefit. In effect state and non-state actors will share more equally in increasingly broad areas of global governance. This is the sort of governance corresponding to Aristotle’s notion of aristocracy. Aristotle describes an aristocracy as a polis “governed by the best men, upon the most virtuous principles. . . . which is the best of all governments.” (Id., at 120 (Bk. IV, Ch. VII)).

The second suggests a larger, though subordinate role for some but not all nation-states, but views this transition as benefiting all people. States continue to play a dominant role in governance, but only the most powerful of states will reserve to themselves the full range of power and authority to manage global governance. This corresponds to Aristotle’s notion of oligarchy. Aristotle describes four classes of oligarchy: where the right to offices is restricted by a certain census that effectively excludes the poor from any share; where those in control are all of small fortune but retain the power, among themselves to control the institutions of government (this, Aristotle suggests, is the closest in form to aristocracy where the selection is made from among the best of the community at large and closest to an oligarchy when the choice is restricted to a n arbitrarily small group); where power is hereditary (that is based on a characteristic other than worthiness; in a modern context, for example, perhaps race, ethnicity, or the like); and lastly, where the hereditary nobility rules without regard to law but only with regard to its own desires (this corresponds closest to the form of monarchical tyranny). Aristotle, supra, note 16, at 117 (Bk. IV, Ch. V).

The third perspective indicts this transition as the embrace of multiple systems of subordination: racial, economic, ethnic, social, political, and the like. In this view of globalization, certain powerful members of the community of nations will appropriate for themselves not only all of the power, but also all of the benefit of power for themselves and to the detriment of others. I provide context for this assertion by looking briefly at the current debate over sovereign debt and its amelioration. This suggests the form of Aristotle’s aristocratic or even monarchical tyranny. Aristotle describes tyranny as a corruption of either monarchy or democracy, but shows his greatest concern with what he describes a third distinct class of tyranny “which is the very opposite to kingly power; for this is the government of one who rules over his equals and superiors without being accountable for his conduct, and whose object is his own advantage, and not the advantage of those he governs.” (Id., at 125 (Bk. IV, Ch. X).

But the processes I describe, which in every variation appears to claim the state as a casualty of globalization, is both messier and more complicated than the three models of crisis suggest. Simultaneously developing alongside globalization, or surviving its ascendancy, are other systems incompatible with and likely to engage in conflicts for dominance with both the current system and the ascending system of globalization. These threats arise primarily from three sources. The first include alternative universalizing systems of global organization, based principally in religion. The second include universalizing systems in decline, principally the Marxist-Leninist vision of the past century. The last include anti-universalizing systems and anarchistic systems, from anti-globalization groups, to eco-activists, to old-fashioned conservatives. It seems that the only defense of the traditional state systems is essentially reactionary and increasingly anachronistic. The consequence for the traditional state system appears to be the same, whatever the form of globalization embraced, from the most benign to the most aggressive, and whatever the character of opposition to globalization endorsed. The attachment to a particular nation-state bounded by a finite territory no longer appears to be the critical factor in the debate about globalization. Under any of these models, the state will effectively fall away for all practical purposes. Yet states continue to appear to be quite strong. The state’s continued utility today does not suggest any vitality in the primacy of the state system so much as the immaturity of the new global institutional system. The process of change is messy. It is always uncertain. It’s future can only be divined – but its vectors can be discerned. Globalization along the lines suggested, and the crisis of the state it suggests, is multi-layered, ushering in a new hierarchy of wealth and power based on levels of integration into emerging global systems. The world is being divided along different, more diffuse, and complex lines. Pockets of inferiority may exist within as well as outside even the most powerful states. Development will not necessarily be determinable within the borders of any states, but like other things, may also jump borders. The poor of Appalachia may have more in common with the slum dwellers of Manila than with the executives and other officers employed in transnational economic enterprises.
“The contemporary international political economy is actually multi-layered, with distinct ‘levels’ being characterized by differing patterns of action and interaction. Globalization may provide an effective metaphor for developments at some levels of contemporary activity, but be seriously misleading at others. Moreover, the differences amongst the characteristics and dynamics of activity at the different ‘levels’ may well be a major source of future change in the international system and, under certain conditions, the actual reversal of current tendencies toward greater globalization.” R.J. BARRY JONES, GLOBALISATION AND INTERDEPENDENCE IN THE INTERNATIONAL POLITICAL ECONOMY: RHETORIC AND REALITY 226 (1995).

In any case, the state will be both a player and object of these processes. But the character of that process, and its moral value (is it good, bad, neither, or some combination) can vary significantly depending on the perspective of the judge. Looking at the very same process, agreeing even on the basic construction of the reality of globalization, it is possible to see three very different events unfolding. From one perspective, globalization is producing something like an Aristotelian aristocracy of global governance among the state and non-state actors who all serve the “law” and “custom” of the market. From a second perspective, globalization is a process of corruption of aristocracy, producing on a global scale, an Aristotelian oligarchy. This oligarchy, consisting of a few super states, uses globalization as a cover for the satisfaction of their own desires and perpetuation of their domination over a caste system of inferior states. From yet another perspective, globalization is the cover for a global tyranny by one hegemon, usually the United States (and its allies), to perpetuate a global system for its sole benefit and to the detriment of all other persons, entities or states.

By whatever perspective one views globalization, the state suffers a detriment to its status, in form or effect (or both). All states cede sovereignty either (1) to a host of actors in the service of the market and the quest for individual value maximization, or (2) to a few super states who alone exercise traditional state sovereign power in the name of and to further the global system, or (3) to a global tyrant seeking indirect global imperium. Those who would challenge the current system of economic globalization offer little of value to those who would defend the traditional state system, either because they seek to substitute another universalist ideology for that of economic globalization or seek to undo any sort of political order at all. Whatever the future brings, there is little question that the role of the nation-state will become more complex, less sure, more diffuse, and differentiated. This will be the case even conceding, as I am happy to do, that references to the traditional system is made in the full knowledge that the system never worked as perfectly as its theory would indicate, or that it was ever expected to perform that way. See generally, STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999). The meaning of this change will remain far less sure—and in that uncertainly lies the possibilities for challenge and change, opportunity and the fall of nations.

A longer version of this discussion will be published as Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17(1) BERKELEY LA RAZA LAW JOURNAL 141 (2006) (Published as Globalização Econômica e Crise do Estado: um estudo em quatro perspectives, SEQUENCIA No. 51: 255-276 (December 2005).

Friday, April 07, 2006

Is There a Role for the Nation-State in 21st Century Europe?

At the April 7, 2006 Conference of the American Society of Comparative Law and the Italian Society of Comparative Law sponsored by Pennsylvania State University's Dickinson School of Law a number of very interesting insights were developed at a panel entitled Adapting Political Structure to Societal Needs--An Italian Federalism? Redefining the State: Regionalism and Supranationalism. The speakers, Lou Del Duca (Penn State), Patrick Del Duca (UCLA), Giusseppe Franco Ferrari (Bocconi University, Italy), Roberto Toniatti (University of Trento), and Mark Tushnet (Georgetown), looked at the issue of federalism, regionalism, and the consequences of developing Italian federalism. The context was Italy in particular, and its own unique development from a series of independent states, to a unitary state, to a Member State of the European Union, to a state experimenting with identity based federalism.

While the perspectives were all quite different, it became apparent that each of the speakers was dealing with various aspects of the same general question, one which, in many respects, points to the most difficult important issue of the 21st century:

Is there a role for the traditional nation-state when much state power has devolved UP to supra-national organizations (like the European Union), or devolved DOWN to sub-national regional, ethnic, or identity based territories (Catalonia, Scotland, Sicily)?

One answer, provided by the Del Ducas, is that the state ought to survive as a mediator of sorts. In the case of Italy, they attempt to show how, after devolution to the regions, the central organs of the state must serve “to assure the role of the constitutional rule of law” through a human rights based constitutional order designed to preserve the democratic order of the regions and basic human rights on a uniform and consolidated basis. For these purposes, state organs—and particularly the national constitutional court—remain viable even when most other state power is devolved down to the regions. Thus, the principal role of the central government is to mediate the borders of acceptable political behavior within the regions.

Another answer is provided by Franco-Ferrari. He suggests that the state remains useful as a nexus of public networks. Constitutionalism serves particularly as a nexus of ethnos and demos. It is the site, within the Italian political body, where the aggregate of the ethnic regions can meet to produce political consensus for concerted action. Italian constitutionalism, standing alone, is suspect. It has become a chaotic affair, far too easily manipulated by the political party in power. But it is also the product of a top down effort by elites (over the course of centuries) to cobble together a nation from a large number of independent political units. Italian devolution to the regions and metropolitan cities has proven a useful means of restraining constitutional exuberance in the service of politics. But devolution without the tug of a unifying center leans restrains too much. It substitutes a bottom up conception of the state for the measured protections of the modern demos. But modern Italian constitutionalism leaves unanswered the fundamental question—in an asymmetric federal republic divided along ethnic and regional lines, where does the basis of political solidarity lie?

Yet another answer comes from Roberto Toniatti. He focuses especially on the value of regions within a system of overlapping state and supra-national competences. The locus of political power ought to reside in the regional entities—favoring ethnos in the devolution of state power. For Toniatti, the state serves as a safety net to ensure that the business of public governance gets done. The traditional nation-state serves best when it serves as the nanny of related groups of regions amalgamated together into a single political state, at least for purposes of dealing with similarly related sets of ethnic amalgamations (for example, the German Lander amalgamated within the German Republic or the various kingdoms on the British Isles amalgamated as the United Kingdom). These ethnic cousins can join together for limited purposes, with the understanding that effective power remains at the lowest level of political organization. The state is the great nexus point of amalgamations of related ethnic political units. It serves to coordinate these ethnic units. Ultimately, the state is a residuary power. Only those powers that have not been vested in the ethnic regions may be exercised by the central state. This is a form of federalism that almost directly inverts the American model.

Coming from an American perspective, Mark Tushnet, suggests structural and political dynamics as critical to the preservation of the central government of a federation, or, conversely, to effect the devolution of power to subordinate political units, like the American states. He argues that the process of federalism is inherently dynamic with a strong tendency toward centralization in the United States. Ironically federalism seems to have a strong tendency towards devolution in Europe. Centralization in United States federalism can be explained by reference to three factors. First: the formal structure of the American constitution creates strong incentives to centralization. The enumerated powers are specified for the federal government, residuary powers are vested in states. As a result the focus is on the extent of federal power. Second: the sort of symmetrical federalism of the United States does not sustain the growth of regionalism or devolution, especially in the absence of historically embedded and geographically concentrated ethnic divisions. Third: Politics became nationalized in the 20th century (after the federal constitutional amendment requiring the direct election of senators). Real national political parties replaced the coalitions of state based parties that were the focus of political activity through the early FDR years. In contrast, Tushnet suggested that devolution of power in Europe was more likely because European constitutions (unlike the American constitution) provide dual list allocations of powers—specific powers are vested in both national and regional governments. Second, Europe tends towards an asymmetrical federalism that favors the growth of the regions. Third, political party systems tend to mirror ethnic or regional divisions. Moreover, Tushnet argued that once the supra-national institutions of the E.U. are factored in, there remained little to make a case for national centralization. So what is left for the central governments of nation-states? Under this view, the principal role is to mediate between supra-national and regional governments.

So what is left for the central government of the nation-state? Mediator of political behavior within the regions or mediator between supra-national and regional governments? Nexus between ethnos and demos? Nanny or coordinator of related regional governments? None of these descriptions suggest anything like the sort of power traditionally associated with a Westphalian state.

I believe that all of these insights suggest a new, role for the traditional nation-state in a world order in which supra-national and regional governments will acquire much of the authority of the old ethnos and demos once the monopoly of the state. For nation-state constitutionalism, Europe has shown the possible realities of the future of the nation-state in an integrated system of overlapping governments at the local, national and supra-national levels. It can be summarized in three points:

1. European integration benefits tremendously from regionalization and the fragmentation of states. The supra-national institutions of the European Union have increasingly filled the vacuum left by central governments whose authority has been devolved.

2. Fragmentation is possible only because of the existence of a strong framework for supra-national integration. Supra-national integration makes it possible for regions to seek greater autonomy with little fear of any adverse effects to their economies or stability. There is a strong direct relationship between the strength of fragmentation at the regional level and the strength of integration at the supra-national level.

3. The institution in the middle—the nation-state—will remain quit useful but in a new way:

a. It will serve as the space/place where the allocation of power is mediated between region (ethnos) and supra-national (demos);

b. It will serve as the preferred neutral place/space where power can be shared (or where power can be lodged) where allocation to the region or the supra-national government is contested.

c. It will serve as the place/space where the allocation of power between public institutions and large private entities (like transnational corporations and global elements of civil society) can be focused and either (i) resolved, (ii) contested, or (iii) sorted for resolution at either the regional or supra-national level.

None of these consequences or relationships between governments were at the forefront of thinking of many people at the time that European integration began with the formation of the original three European communities. But the power of this unintended consequence is both compelling and will be difficult to resist.

Wednesday, April 05, 2006

Can a Corporation Regulate Itself?

Today an economic enterprise can insulate its assets within itself. It can disperse its assets among enterprises, each an independent juridical person. It can exist independent of its shareholders. It can raise capital virtually anywhere that money can flow--and money can flow virtually anywhere today. It can own itself.

But it can now do much more than that. It can exist independent of the regulation of any singular political community. Free movement of capital rules, protections of the rights of establishment and the opportunities created through bilateral investment treaties have opened greater opportunities for an enterprise to be able to choose where to place its assets and operations. In doing so it is choosing more than a place to operate, it is choosing to purchase a bundle of regulations produced by and "sold" by states seeking inbound investment. Because the enterprise can now effectively choose the set of regulations to which it wishes to subject clusters of assets, it can regulate itself.

For the economic enterprise able to disperse assets and operations worldwide, for the enterprise that can access capital markets throughout the globe, the essential role of nation-state based laws of economic organizations (as well as of securities regulation) appears to be to enhance the ability of the multinational economic enterprise to become an autonomous and self regulating entity. But it can become more than autonomous, it can also become an important political actor. Large multinational corporations, as consumers of legislation, have helped commodify economic regulation. Law, like the products of economic enterprises, are objects that can be produced, marketed, sold and consumed. As such, law can no longer be conceived as the product of the will of the people expressed through their government. Instead, law acquires the characteristics of products manufactured to attract consumers. In this sense, law loses its connection to concepts of popular sovereignty. It suggests that the political theories of state organization conflate with economic theory, at least in the context of legislating for economic enterprises operating globally.

I have written a short essay that serves as an introduction to the construction of a theory of institutional autonomy from out of a century of debate about the nature of economic entities. The essay first re-examines the asset partitioning ideas of Hansman and Kraakman the context of the multinational enterprise. It suggests that asset partitioning can be usefully understood as fleshing out the contours of the way in which organizational law shapes enterprise autonomy for creditors. The essay then re-examines the corporate personality analysis of Iwai to suggest that in a global context, Iwai’s insights suggest the possibility of enterprise autonomy from shareholders. The essay then considers the perverse utility of the ancient territorial principle and the principle of regulatory hierarchy. Applied in a global context these principles suggest the possibility of enterprise autonomy from the state. Pulling these three puzzle pieces together, the essay suggests that the nexus of multinational enterprises and globalization provides a foundation for the emergence of self-conscious autonomous self-regulating economic entities.

I would be interested in comments and reactions. The essay can be accessed at:

Larry Cata Backer, "The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality" . Tulsa Law Journal, Forthcoming Available at SSRN:

Tuesday, April 04, 2006

On the First Anniversary of the French Rejection of the European Constitution: Why the Proposed Constitution for the E.U. May be Better Left Dead

It has been almost a year since the French electorate refused to ratify the proposed European Union Constitutional Treaty. That reject in 2005 produced a certain theatrically over dramatic bit of reaction from media and political elites in the United States and Europe. At the time, the French government began to look for the appropriate high level official to cashier, as if the machinations of a single person or government might have better manipulated a docile population into cooperating more fully with its political masters. The Euro fell slightly in value as against the U.S. Dollar, as if to suggest that the rejection of a document characterized by Prime Minister Blair as changing relatively little would somehow affect the international financial status quo. American pundits chuckled at the complexity of a document that was virtually unreadable, and on this basis pronounced it rightly unfit for the establishment of a governance system. The Americans, of course, given their culturally induced short attention spans, are happy to forgetting, for a moment, that the documents the Constitutional Treaty sought to replace are no less complex, yet have worked extraordinarily well in reconstituting Europe as a great economic power. We were told that the experiment that is European integration had been damaged, perhaps even mortally wounded.

One year on from this disaster, European elites still cling to the notion that some sort of constitutional project, perhaps even a resurrection of the lost cause of last year, would be in Europe’s long-term best interest. With each successive E.U. Presidency, there is a carefully cultivated expectation of constitutional revival. Yet, the past year has demonstrated that the reality is nothing like the hysterics blasted from out of the propaganda machinery of the European elites for the benefit of the impressionable in the aftermath of the French vote. The rejection by French voters ought to serve to remind Europeans that the institutions they have so carefully built over the last half century may be worth preserving, and that momentous changes in political organization of the type to which the European Constitutional Treaty pointed (though by no means was prepared to grasp) require a more thorough and transparent political dialogue before they are adopted.

What, exactly, were the consequences for Europe after its effective rejection of the proposed Constitutional Treaty?

The precise answer, in a word, is nothing.

A slightly longer answer starts by reminding the reader that, at the time of its unveiling, several key proponents of the proposed Constitution, especially within the United Kingdom, suggested that the proposed instrument was largely technical in nature, effecting no substantial fundamental changes in European governance. To the extent that changes have not been made, a new form of instrument, especially an instrument the form of which might be used to effect changes not bargained for, seemed unnecessary at best and anti-democratic at worst. To the extent that technical changes were offered, dealing with enlargement and the like, it seemed that well targeted appropriate amendments to the present Treaties were a better alternative. To pour technical changes into a new instrument suggested that the changes in the proposed Constitution were more substantive and less technical than advertised. Given the thrust of the language and the centralizing proclivities of the European Court of Justice, this reading was not far fetched.

Those who continue to contemplate committing their nations to the embedded vision of progress toward some state of political being, as well as to the technical terms contained in an instrument purporting to be one thing and suggesting any number of other things, might well heed this caution: it might be prudent to be clear about the exact nature of the commitment and realistic about the feasibility of controlling participation in a political system in which control by any one Member State is limited at best. To the extent that France and Germany continue to believe that they can amplify their national instruments through control of the instrumentalities of a docile and obedient European Union, might do well to remember the difficulties of herding the E.U. to a common policy with respect to the American invasion of Iraq. Both might also contemplate the fate of Virginia and New York under the federal constitution, very influential in the 18th century, and far less so in the 21st. Moreover, as the American constitutional experience has well demonstrated, embedding disagreement in constitutional text is a dangerous thing indeed. To defer consensus on fundamental issues by embedding disagreement within the text itself is to invite decision by others. And within the European Union, the European Court of Justice has assumed that task, to a significant extent.

A much longer answer involves confronting an issue with respect to which the Member States remain divided, and around which much policy has been directed. That issue centers on the ultimate character of the European Union as a political, social, cultural and economic entity. Is it to remain an association of states, or evolve into something else -- a classical federation, a federation in which control is vested in the Member States, a unitary state, or a confederation? One year after the constitutional failure, the answers remain as elusive as ever. But perhaps this is best for all involved. A development of an organic sense of unity, that is, of a sense of Europe from the bottom up, rather than from the top down, might produce a stronger and more stable basis for the construction of a European political, social and cultural entity. Oddly enough, recognition of European cultural solidarity from outsiders may have a greater effect on the construction of Europe than the manipulation of the usual internal cultural levers by the European elite. The recent international response to the publication of the Mohammad political cartoons by a Danish newspaper, especially from the Muslim world, might have done more to push European together as a people than anything that has recently come out of the spin mills in Brussels.

But the elites, who drove the constitutional drama of the last year, did not think so. It seems clear enough that the proponents of this new instrument sought something more than the sum of the changes therein contained. But what is this ‘extra’ bit of value they meant to squeeze from the instrument? It might well be that those who have constructed it might be conniving a further evolution of the entity created thereby to something approaching a more concrete state. It would work like magic—from document to reality: Presto!

Thus, for example, a representative of French institutional thinking, Valery Giscard D’Estaing, the Chairman of the European Constitutional Convention, gave a well publicized address in 2003 in which he told whoever was willing to listen that European Union was at a major crossroads in history. He spoke of the need for Europe to define the role it wishes to play on the international scene. He said that Europe is strong economically, but weak politically. D’Estaing’s main argument is that a stronger, more united, Europe would be a much more valuable and trustworthy partner for the U.S.A. with which it would be possible to have a better organized and more productive dialogue on global strategic issues. A divided Europe would have little impact politically, which he said will hurt the United States, as the U.S.A. is in need of a strong ally and partner in Europe in global political affairs. Other authoritative speakers (that is, speakers whose voices tend to be amplified by publication in the press or other organs for the dissemination of political speech) have also spoken of the E.U. in evolutionary terms; in those cases, the evolutionary end point seems to resemble more a traditional federation than anything else.

It is with respect to this evolutionary project that proponents of the proposed constitution referred when they spoke about a crisis resulting from a failure to embrace a constitution for Europe. That appears to be the thrust of remarks from the United Kingdom’s Peter Mandelson, the E.U. Commissioner for External Trade. Mr. Mandelson was right to suggest in an August 2004 interview with the BBC that the failure to adopt the proposed Constitution would spark a “major crisis.’ The crisis affects not the current status but the scope, nature and timing of the evolution of the Union; “we will have to go back, look at the reasons for the rejection, understand why the treaty has not been embraced by the public and address those concerns.” But this is proving to be a very good thing indeed.

Consequently, European should continue to use the anniversary of the effective abandonment of the proposed Constitution to embrace whatever ‘crisis’ it has spawned. Such a crisis will be healthy for the long-term stability and growth of the Union. To the extent that the ‘crisis’ unearths the tensions long masked by the treaties, and redirects the conversation about their resolution from the judicial department of the European Union to the political departments of the Member States, that ‘crisis’, however resolved, may be long overdue. Such a conversation, to a greater extent than any sort of technical amendments to the treaties, will in the long term resolve the problem of the democratic deficit that seems to plague the process of integration, as and to the extent that further integration is embraced by the Member States.

Into what should the European Union evolve? It could focus, as the proposed constitution suggested, into something like a federal nation-state. On the other hand, the recent efforts by the E.U. to forge more formal trade and associational ties with the regions around it—in the Mediterranean basin and in Eastern Europe—also suggest a fruitful line of development. This is economic integration separated from political integration. For some, this might be the more fruitful approach, and certainly an approach more consistent with the economic globalization that is such a powerful force for integration today.

Ought it to evolve at all? It is possible to suggest that the great and fundamental changes of the 1980s and 1990s require more than a couple of years to digest. It might well be in the long term best interests of Europe to deepen the relationships among its members before they seek to broaden them. There is still plenty of room for such deepening within the framework of the current Treaties.

There is little point in hiding from those questions. There is, however, a great danger in supposing that finessing an instrument of governance around this issue without resolving it will either make the issue go away or provide a certain method for imposing one solution without the bother of negotiation or instrumental reform. The United States, of course, ought to serve as the great cautionary tale for those who believe they can use the institutions of the European Union to control or direct solutions to foundational issues that remain unresolved. Problems are rarely solved, and progress rarely follows, solely from the stroke of a pen or the enactment of measures without popular support.

And now for a little perspective: I do not mean to suggest a belief that Europeans ought to walk away from Europe. Rejection of the proposed Constitution did not have that effect. Nor do I necessarily counsel rejection of and future constitutional proposal. But fundamental political change by subterfuge or sleight off hand is hardly a prescription for sound governance. This first anniversary should remind the powers that be of this lesson. The rejected constitution required acceptance of a number of fundamental propositions that were not necessarily evident from the face of the document. It certainly seemed to suggest transfers of power in excess of that set forth in its black letter. These propositions were unpalatable, and would have been more unpalatable still had they been more clearly evident. In any case,

It seems to me that association of some kind is inevitable for the nations of Europe. It is possible to argue that the Member States of the European Union made that choice when each joined – for good or ill – the European Communities. Each now must embrace the consequences, including the evolution of the Union into a very different form of governance system. But I believe that argument like that beg the real question Europe must confront. It assumes a necessary passivity on the part of Member States with respect to fundamental questions and a transfer of authority over those matters to the collective that is the Union itself. I see no reason to adopt passivity except in the service of an evolutionary model of Union. While change may be wise, it deserves at least some sort of active consideration by government before the state binds itself to a system over which it has less control. The real question for the governments of the Member States of the E.U. thus center on the form and nature of its association with other states. With respect to those issues, the Member States might well wish to retain a significant amount of control, even as each might choose to integrate itself more fully with its European partners. At a minimum, analytical clarity and rigor will be essential to understand the terms of the constitutional ‘contract’ which the Member States will, sooner or later, again be asked to adopt.

Rejection of the European Constitution provided the people of the Member States with an important opportunity to rigorously examine its associational relationships and to more actively chart a course for its future. That is the greatest service the Constitution performed. A year’s reflection ought to make Europeans grateful for the crisis reject brought, and for the opportunity to be more active masters of their fates.

Saturday, April 01, 2006

President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times

President Bush’s Second Inaugural Address provided a forum for the articulation of what has come to be well understood American foreign policy: “The survival of liberty in our land increasingly depends on the success of liberty in other lands. The best hope for peace in our world is the expansion of freedom in all the world.” But this articulation has a far more significant and deeper meaning for the United States and the world community.

The articulation of what has come to be understood as the basis of American foreign policy also served as the framework for declaring, perhaps for the first time in completely developed form, a new American doctrine of international law. Drawing from universal principles from the founding of the Republic, as well as the eternal “truths of Sinai, the Sermon on the Mount, the words of the Koran, and the varied faiths of our people” the rules of behavior between, among and within nations will be grounded in human freedom and democracy. Democracy and human dignity provide a framework limiting the power of any political community – nation, state, international organization, or the like – to organize its society. Every nation has the right to choose its own path to freedom and democracy, and every other state has the authority to help its neighbors achieve and maintain compliance with these standards. But no community outside of the nation should have the power to choose or govern the choices made by any nation within the broad framework of liberty and democracy. As President Bush suggested: “Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities. And when the soul of a nation finally speaks, the institutions that arise may reflect customs and traditions very different from our own. America will not impose our own style of government on the unwilling. Our goal instead is to help others find their own voice, attain their own freedom, and make their own way.”

Actual implementation of the principles of freedom and human dignity are based on another set of rules also applicable to all political communities: “In America's ideal of freedom, the public interest depends on private character - on integrity, and tolerance toward others, and the rule of conscience in our own lives. Self-government relies, in the end, on the governing of the self.” Application of these principles for international action then becomes clear: It is for the people of Iraq to embrace freedom and human dignity, it was the task of the United States to help Iraq, and the resulting democratic society created in Iraq, sensitive to ethnic and religious divisions, may look very different from democracy as envisioned in the United States Constitution.

This declaration seems to turn on its head the carefully manicured structure of post 1945 American inspired internationalism. Prior to this Administration, it was generally unquestioned that a new global political community would be created through which an international managerial class would help formulate and implement binding norms on all states. These norms would be creatures of politics – developed by the actions of shifting blocks of multi-national majorities of nations, without reference to the character of those states. International law was to be developed in New York and Geneva by administrators and approved through a global political process only vaguely tied to democratic concepts of participation and accountability. Classical post-WWII internationalists thus envisioned a single political community under which all nations would be subordinate to the political will of a ‘higher law’ of the international community developed from out of pragmatic political compromise. This system, Americans were reminded by Senator Kerry, was to be the fulfillment of the American establishment’s post Second World War vision of a world tied together in peace by political forces superior to the American political community but trained in Western (that is, American) political values. Though these values might be expressed differently within the context of every polity, its basic framework, transcultural in character, would be transnational in application. The ideals of this system also guided the founders of the European Union.

But something happened between 1945 and the present that began to be revealed after September 11, 2001. The Second Iraq War finally brought the differences between classical internationalism and the Bush administration into sharp relief. In place of the structuralism of the United Nations systems, and the consolidation of political power outside the nation, the Second Inaugural Address reveals President Bush’s revolutionary new project of internationalism – a state centered system founded on individual participation. In place of the post 1945 drive to transfer and consolidate power over political and social communities – that is, nations, ethnic and religious communities -- within a remote and elite international community, the President suggests the consolidation of state centered political communities all operating under the same general set of framework norms – “that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth. Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. Advancing these ideals is the mission that created our Nation.” The new doctrine suggests the mission of every nation and the foundation of international law must be based on the classical ideal that ultimate political power rests with the people of sovereign political communities, but that all political communities are bound by a set of framework rules limiting their freedom of political choice. These framework rules are beyond political control, they define the baseline for universal or global interaction. The defense of these simple fundamental rules will be the primary subject of international relations in the 21st century, if the Americans have anything to do with it.

President Bush has declared: “America's vital interests and our deepest beliefs are now one.” To those few who might have been listening carefully, the future is now clearer: a rejection of shifts of power from states to an institutionalized and increasingly autonomous set of international organizations, a greater margin of appreciation for local context in applying the limitations of the transcultural element of constitutional substantive norms, a return to a natural law based understanding of the source of the transcultural element in constitutional law, and a suggestion that it might be possible to find appropriate universal substantive values within autonomous institutional systems of religion as easily as within natural law or even within the autonomous institutionalized system of global governance the Americans were at such pains to build after the Second World War. The foundations of internationalism will never be the same again.