Symposium Introduction: Reifying Law--Rule of Law, Government, the State and Transnational Governance

What follows is an introduction to a Symposium to be published by the Penn State International Law Review (Vol. 25). The contributions to the symposium include the following papers:

Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2007).

Gunnar Beck, Legimation Crisis, Reifying Human Rights and the Norm-Creating Power of the Factual, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2007).

Mark Modak-Truron, A Process Theory of Natural Law and the Rule of Law in China, 25 PENN. STATE INTERNATIONAL L. REV. – (forthcoming 2007).

José Gabilondo, Monetizing Diaspora: Liquid Sovereigns, Fertile Workers, and the Interest-Convergence Around Remittance Flows, 25 PENN STAT INTERNATIONAL LAW REVIEW – (forthcoming 2007)

Mae Kuykendall, The Ship of State and the Abandoned Yacht, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2007)

Carolina Pancotto Bohrer Munhoz, Corruption In The Eyes Of The World Bank: Implications For The Institution’s Policies And Developing Countries, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2007)

SYMPOSIUM INTRODUCTION:

The idea for this symposium grew out of a problem that has grown more acute in the discourse of contemporary globalization: what are the basic assumptions from which regulatory systems are elaborated? Globalization may be shaking the foundations of contemporary systems, centered on a hierarchy of power in which the political community, organized as states, stood at the top. Government may both have a monopoly on formal lawmaking, yet official lawmaking may no longer describe the extent of formal governance in a world in which states no longer necessarily sit at the top of the pyramid of recognized power relationships and contract may serve as law in a new form. (Shaney 2005) Law, government, the state, the community of states, and the individual (natural and juridical) serve as the basic building blocks of contemporary communal orders. Each is a set of animating ideas that used to be confined to notions of constitutionalism once confined to the territory of states (Dicey 1982), and now important beyond the state (Carothers 1998). But each is also a set of methodologies through which that idea becomes manifested in communities of individuals. (Koh 2006) Yet the meaning of these terms has proven elusive, either as ideas or as manifestations of ideas. Equally elusive is the way each of those building blocks of communal order interacts with each other in a world of people and not of ideas, though a world in which ideas can be felt as fatally as concrete falling from a scaffold. Most elusive, perhaps, is the way in which law (understood broadly) is judged good (legitimate, authoritative, civilized, and the like) or bad (illegitimate, arbitrary, savage, and the like). (Willoughby 1924, 29-31, 35-39, 312-315; Timburg 1947; Buergenthal 2006).

Within this complex of concepts and manifestations, law appears always to have a primary place. Despite this conceptual dynamism, the last century has been consistent in its desire to be “ruled” by law as the basic parameter of the construction of systems of government, states, communities of states and individuals. “Rule of law,” both as a set of normative principles and as methods of governance, has assumed important institutional global dimensions since the establishment of the contemporary world order after 1945. (Zifac 2005) As a set of normative principles, “rule of law” has exploded from an understanding of the relationship of law, government, and the individuals who act in the name of either within political states to a search for a universal set of principles that govern the constitution of states. (Backer 2007a; Murphy 1993, 3-25) “Rule of law” is now said to serve an ideology of constitutionalism. (Henkin 1994; Schwartz 2004; but see McWhinney 1981) But it is also central to the methodologies of the construction of “legitimate” government—that is of government with respect to which there is no just reason against which to rebel. (Rawls 2001; Rosenfeld 2001) These legitimacy principles can be reduced to methods of constructing a legal state: “[1] the predominance of regular law so that the government has no arbitrary authority over the citizen. . . [2] all citizens are equally subject to the ordinary law administered by the ordinary courts. . [3] the citizen’s personal freedoms are formulated and protected by the ordinary law. . . . ” (Ibtahim 1996; see also Peeremboom 2004) The focus is on the translation of principle to lived reality among the people most directly affected. Rule of law, as concept and method, has become a concern of states whatever their foundational ideology (Backer 2006), and has become part of the discourse of the behavior of non-governmental entities, especially multinational corporations. (Backer 2006a) And its principles have begun to seep into the construction of hard and soft systems of international law, governance and behavior. (Franck 1997) Contract regimes overseen by supra-national entities may engage the same rule of law issues, as founding or legitimating ideologies, as traditional nation states. (Chanda 2004)

Still, for all the agreement about the rule of law, the essential ideas and constructions remain highly contested. Law is either something inherent in communities of people or can spring only from an assertion of their will. That assertion of will might be manifested by societal action or only through the apparatus of government. That government might represent the entire sovereign capacity of the people or merely serve as a fiduciary of that power. The sovereign capacity of a people might be unlimited or it might be exercised only within the constraints of rules to which all peoples are subject. All peoples may be subject to global and thus universal constraints, or to the universal constraints of a divinely ordained system. Law, may, indeed, be limited to rules applicable to the establishment of political communities, or systems of such communities, but not of non-political systems. Or law may be understood as an expression by any group through action or conscious design. Depending on the basic assumptions embraced (about how law “works”), the resulting ideas, jurisprudence and conceptual limits of discourse about law, communities, government, and individuals, follow. But what follows is neither inevitable nor indisputable from out of reason; rather than from a faith in the “truth” of the core assumptions embraced.

Understood in its contemporary form as a debate about “rule of law,” the roots of this debate about the meaning and practice of law, government, state, government are ancient. Its political, social and religious expressions are bound up in Bracton’s notions of gubernaculum (government) and jurisdictio (jurisdiction) (McIlwain 1947), which together define the character, scope and authority of coercive systems of governance, both public and private. And Bracton is a useful beginning for a consideration of the problem. He stands at the beginning of the transformation of medieval conceptions of both to the very different conceptual understandings of law and the state. Those debates remain current, but under a constantly changing contextual landscape. Since the sixteenth century, debates about the meaning of both have gone hand in hand with the almost simultaneous construction of both the most advanced democratic constitutional states and the most authoritarian states of the twentieth century. Contemporaneously, they serve as the building bocks of both political and economic regulatory networks at the supra-national level.

Those debates have taken on greater meaning with the advent of globalization and the elaboration of transnational systems of governance. Gubernaculum and jurisdictio serve as the basis for both making an object of law distinct from its origins and for understanding the parameters of its “rule.” Law as an object can be transported, adopted, moved, and negotiated detached from any particular government or individual can serve as a powerful transnational force and also a limit on the power of individuals or institutions to subvert it. As evidence of governmental will, however, it may be far more parochial. These differences become critical as the world moves toward systems of coercive global law, understood either as common law binding on states, as the precursor to global governance institutions like the International Criminal Court (1998/99), or global private law systems based on contracts with public law characteristics. (Meidinger) But, its jurisprudential expression, especially since the mania for positivism in the construction of political ‘constitutional’ societies took hold in the 19th century (Alcott 2002; LaPiana 1986), produced a certain amnesia of sorts of the ancient, and often violent, contests over the nature of law and the relationship of law to government. (Grossi 2004)

This symposium explores these dynamic aspects of the relationship of law, state, government in a national, international comparative and transnational context. Contributors examine the issues form a variety of perspectives. These perspectives range from theoretical to applied frameworks—that is from a set of concepts to methods of implementation. Law and governance now appear in new forms, and old forms take on new meanings within theory and as applied. The goal is to develop a more complex and realistic structure for understanding law and regulation in a globalized environment in which the traditional nation-state no longer can claim a monopoly of formal or informal power to create or enforce norms. The “idea” of law acquires distinct meanings in a global system in which multiple sources of law—states, corporations, religious institutions, and other non-governmental communities—compete for authority and in which neither the state, nor its government can always command a privileged position.

The contributors have chosen to explore these complex interactions from the perspectives of both theory and practice. They have approached the issues from the national as well as the international plane. Together, they provide a glimpse of the complexities of modern jurisprudence in its transnational context. My contribution to this symposium (Backer 2007b) seeks to confront the issue of the character of law and its ramifications for the power of the state. The paper interrogates that discourse in modern terms. Using the gubernaculum and jurisdictio distinction in Bracton, the paper focuses on Francis Bacon’s defense of James I/VI’s instrumentalist view of law and Edward Coke’s organic view of law as the embodiment of the normative values of the political community that serves to bind and limit its government. These opposing visions of law are then explored in the context of the jurisprudential oppositions of 19th and 20th century political theory. Then, more broadly, the paper examines the Bacon-Coke opposition in post-modern and global terms. The essay suggests the way in which the constitutional deadlock of seventeenth century England, now broadened and freed of the artificial boundaries between public and private law, reproduces itself on a global level in the 21st century. To that end the paper explores the way in which the contested understanding of law as object or subject becomes a critical element in the management of networks of power at the international global level and in the reconstitution of legal reification in global common law and private transnational legal systems. The analysis ends with an exploration of the implications of these theories in the construction of modern transnational constitutionalism, both secular and theocratic.

Gunnar Beck (2007), examines another aspect of law and its relationship to government. He argues that customary common law, or ethically or religiously grounded models of the individual, ultimately provide a more convincing framework for restraining gubernaculum. In the absence of such a firm ethical or religious foundation, judicial law-making lacks foundational solidity. For Beck, it is unclear whether such a foundation can still be provided in the absence of a unifying normative or social framework or whether, ultimately, in modern times the only credible reason for dividing law-making authority between different agencies is merely functional. But a privileging of separation and diffusion of power principles in the absence of a consensus based understanding of organizational first principles—and first principles expressing communal values—also poses a legitimation problem, quite apart from the concentration of power in private hands which is not subject to institutional checks and balances. Beck also interrogates the way in which law is redefining itself in the post-national context. What is clear is that in this international system explanatory devices such as the rule of recognition no longer provide adequate means for analyzing the sources of the specific form of authority of legitimacy law lends to politics, nor for understanding the scope, source and limits of legal power. But here one meets a problem of source. Law tied to the apparatus of state,m for all its defects, has the benefit of clearly defining lines of authority. In a world of diffuse and private lawmaking, the problem of legitimacy and authority becomes the central issue for law. Consequentially, it becomes difficult to define the manner in which private gubernaculum is or can still be restrained through jurisdictio. Perhaps, Beck suggests, there are no answers except that the term Business Law will acquire a new and all-embracing importance.

Mark Modak-Truron’s contribution (Modak-Truron 2007) begins bridging theory and implementation. His context is the relationship of state and law in China. Modak-Truron asks:

“Is it meaningful to continue talking about the rule of law? Does legal indeterminacy and the ontological gap mean that law is primarily guided by local social norms and customs rather than universal rules and principles? Do different cultural circumstances in the West and the East warrant different conceptions of the rule of law? If so, can a normative theory of law legitimate these culturally sensitive conceptions without devolving into cultural relativism?”

He applies the post-modern normative theory of law based on the Process Philosophy of Alfred North Whitehead and the Radical Empiricism of William James to address these issues. The result is a “process theory of natural law” that he argues provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy, and closes the ontological gap between legal theory and practice. He also argues that a process theory of natural law mediates many of the cultural differences between the East and the West through the telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order (emergent harmony or spontaneous order) and a Western rational sense of order (complexity arising from diverse individual orderings). This conception of the rule of law allows for important cultural differences to be reflected in the interpretation of democracy and formal legality and in the instantiation of individual rights in the law. From this he concludes that the ideal rule of law may look different in the U.S. and China, and may continue to evolve in our constantly changing, pluralistic, and multicultural world.

Jose Gabilondo (2007) directly confronts the implementation issues raised in Backer and Beck’s contributions. He examines a legal and policy discourse about the need to reduce the transaction costs of worker remittances. The issue has become more important as labor migration has led to surges of remittance flows, which have become a source of hard currency foreign financing to developing countries on par with official aid and foreign direct investment. He argues that the current discourse on the question reflects a convergence of economic interests of three constituencies: labor-exporting countries, labor-importing countries, and international financial organizations, like the World Bank and the Inter-American Development Bank. The conflict between these constituencies and the interests of diaspora workers themselves illustrates one of the governance dilemmas about conflict and renegotiation of the relationship between ethnos, law, and the state raised by Backer and Beck.

Mae Kuykendall (2007) approaches the issue from the opposite end of the analytic spectrum. She focuses on the corporation as a site of regulation. The corporation is a fluid entity dominated by the logic of investment, a logic disjoined from the human stories that exist within corporations and which are rendered irrelevant to the subject of corporate law by the dominant persona of the corporate entity. It is not clear that this feature of the corporation, which naturally arises from the logic of financial markets, displaces law so much as, with growth of global capital, it makes less accessible to political understanding more sectors of human experience in which law might seek a role. The corporation is a site, not of jurisdictio or gubernaculum, but of fleeting interconnections based on exchange, all embedded in a whirlwind of words, and defying reification. Hence, it may be possible to suggest that law itself may not be contained. And no community of actors seeking to assert regulatory authority, can assert a monopoly of power. The contemporary world in general, and globalization in particular, may best be characterized by a diffusion of power, and thus of law. For regulatory institutions—like states and corporations—this suggests a limit to the resort to law to effect change, or control.

Carolina Pancotto Bohrer Munhoz (2007) ends the dialogue with an examination of law detached from its moorings in the state and its governance apparatus. She interrogates the complexity of corruption and the search for definition and methodological consensus at the transnational level. The specific objective is to identify the notion of corruption adopted by the World Bank in an attempt to demonstrate in what way this notion affects the actions of the institution in its fight against corruption and in the promotion of its primary objectives. In order to reach this objective, the adopted concept of corruption is analyzed in different contexts, both national and international. The article discusses the concept of corruption adopted by the World Bank, and the implication of this for the actions of the institution. The article analyzes the relationship that the preponderant role of the fight against corruption as an instrument of promoting development has with the paradigm of development adopted by the World Bank today, known as the Comprehensive Development Framework. However, this interest does not translate into a consensus on a single definition of corruption, or about the phenomena that it entails. In fact, there is no universally accepted concept of corruption. Because of this, practices understood or interpreted as being corrupt in one jurisdiction might not be judged corrupt in another.

Taken together, these essays suggest the realities of a world political, economic and social order in which the only stable element is the use of the same set of words to hide a multitude of ideas, desires, normative and institutional frameworks. Yet they also suggest a fairly narrow range within which the great debates over communal orderings are taking place. They further suggest that those debates are no longer the sole province of states, or even of political entities, but have become the common thread in the rush to institutionalize governance at the level of the firm, the political party, the state and the community of states. Law is a protean concept: it is at its most useful when it can serve as the object of desire of those who wish to use it. It has served totalitarian states as well as multinational corporations. It has been as much the creature of customary law in England as it has been instrumental in the ordering of systems of customary law at the international level. Law is both synonymous with the state, and the only means by which the state can be contained. It is a tool of political governance and the framework through which the state can be overcome. The “rule” of law is thus reduced to a highly technical meaning—the means through which arbitrary governance is contained—or it can be understood in a broader sense to encompass the institutionalization of governance at any level of autonomous, self contained governance systems. (Teubner 2004) Yet the result is not that the term “rule of law” loses all meaning, but that it serves as the vessel through which the commonalities of governance systems can be understood, compared, and tested for their authority and legitimacy in the context of their creation and operation. As international public and private law systems are broadened and deepened in this century, an understanding of the meaning and application of law in these senses will serve as a foundation of analysis and judgment of the value of the resulting systems of law.

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