Saturday, September 20, 2008

Corporate Global Citizenship

I recently had the privilege of reading an advance copy of a working paper written by Grahame Thompson, to appear as a Copenhagen Business School Working Paper. The following are some observations generated from the insights developed in that paper.

The convergence of public and private law has emerged as one of the great legal issues of the 21st century. (Backer 2008c). It touches everything from the regulation of state activity, to the character and effect of the activities of non-state actors—and particularly those amalgamations of authority organized as juridically distinct persons. At its core, it implicates issues of the character and nature of the state, the state system, and the division of power—political, economic, religious, social and cultural—among a number of actors of which the state is only one. Though for the moment the state—and legitimate amalgamations of political authority—remains the dominant expression of coercive power in the organization of political governance, its role within emerging systems of governance both above and below the state level have been changing dramatically. Economic entities are increasingly seen as state-like actors requiring regulation at a transnational level (Backer 2006a; Backer 2008b), states seek to participate in domestic and foreign markets as economic rather than as political actors (Backer 2008c). Large multinational enterprises are increasingly able to self regulate (Backer 2007). Simultaneously, the nature of the legal order among states and the principles within which states may constitute themselves have become increasingly regularized—the community of nations has begun to move from an acceptance of constitution as a means of organizing political communities to constitutionalism as a system for the regulation of the constitution of communities with political authority. (Backer 2008). In this context, law has become unmoored and the old discussions about the nature of law and its relationship to the state have reemerged in new form. (Backer 2008a).

It is with this in mind that I read Grahame Thompson’s excellent article, “Corporate Citizenship: Corporate Activity in Context,” CBP Working Paper No. – (August 2008). Thompson interrogates the idea of “corporate citizenship” both as trope and in the context of emerging and competing frameworks of governance above and beyond the state. For this purpose Thompson nicely weaves together complex strands of developing theories of private and public governance, of transnational institutionalism and of the juridicalization and constitutionalization of public and private law beyond the state. Drawing together insights from economic and political theory, he suggests both convergence—one can no longer speak of separate spheres of closed governance sub-systems communicating through law, and fracture as economic-political power is diffused among a larger group of actors. It from the mechanics and consequences of this convergence and fracture that Thompson extracts “several unpalatable implications and dilemmas that will not be easy to resolve.” (Thompson August 2008, 2).

Thompson starts with an analysis of the phenomenon of “corporate citizenship.” (Id., 2-9). This is a significantly under theorized area with significant legal implications. Thompson’s great contribution here is to interrogate the relationship between corporate “citizenship” and corporate “social responsibility.” He is right to suggest that “corporate citizenship is a distinct category with it own modalities and dynamic.” (Id., 1). Corporate citizenship is a political stance. It is born of a sense of vulnerability “of their general business position.” (Id., 7). The threat is not private but a consequence of the power of large aggregations (public and private) of investment wealth. (Id., 6). In effect, Thompson suggests, the perception that even the largest economic actors cannot escape commodification at the hands of other forms of economic actors whose objective is to buy and sell such companies drives them to seek a reconstitution of their organization—from private to public. And in that re-characterization they seek protection against their commodification for the noblest purposes: the protection of markets for the “little people,” transparency, and the robust supervision of liquid financial markets that only the state can regulate. (Id., 6-7). No longer merely an amalgamation of economic power, corporations as citizens suggest the public purpose of such entities. And the attainment of the public objectives of such entities might well serve as a break on the power of markets to discipline these entities by privileging their non-public performance. For this purpose, they might well be willing to trade one sort of scrutiny—that of markets (with their perils)—for a “different—and possibly intrusive—kind of scrutiny.” (Id., 7). But the benefits may be worth the burden. Thompson identifies several: enhanced social and political power as “partners” of states, and expanded marketing opportunities. (Id.).

Still, corporate citizenship as a concept is an elite fabrication. Few, but important companies are furthering the notion. (Id., 6). But which companies are likely to wish to advance notions of citizenship? Here the relationship between corporate social responsibility and corporate citizenship is made clearer. Thompson develops a framework for understanding the development of a taste for corporate citizenship based on two factors: (1) a belief that social, environmental and ethical values are central to their business activities and (2) a belief that those values enhance their financial position. (Id., 3-6). And it is within this framework that the relationship he posits between corporate citizenship and corporate social responsibility is nicely extracted: corporate social responsibility is an aggregate of those acceptable and legitimating actions that together constitute the expression of corporate citizenship. They are the acts that in the aggregate constitute and legitimate claims to citizenship. (Id., 9). “It is a voluntary activity, associated with their behavior in taking responsibility for the sv & ev [social, environmental and ethical] aspects of their business operations.” (Id.).

And in this insight between act and characterization is revealed the lubricant—wealth maximization. Thompson illustrates these relationships between the importance of corporate social responsibility to economic actors and those actors’ desire to advance the political idea of corporate citizenship. Notions of economic welfare maximization inform the framework. Companies who for reasons of their own values or a sense of their financial best interests are invested in acts of corporate social responsibility are also most likely to embrace corporate citizenship as important for reasons that are either values based or promise financial gain. (Id., 4-6 & Figures 1-2).

If corporate social responsibility serves as the legitimating actions of citizenship, then what of the legal and political consequences of that citizenship in power and institutional senses? Thompson devotes the second half of his study to those issues. (Id., 9-18). Here Thompson suggests that changes in the legal and institutional framework of governance beyond the state have created a significant space within which the idea of corporate citizenship might assert public (political/governance) power. First, he argues that international law, in general, and private international laws in particular (identified as private, customary and administrative law) have increased in importance and relevance to even everyday activity. “In the global context of commercial activity it is mainly private law and administrative law that are brought into focus.” (Id., 10). He then suggests that this increase in pertinence is shored up critically by a drive to constitutionalize the international arena. He suggests that substantive constitutionalism (Sozialstaat notions), has become the gateway for both process constitutionalism (Rechtsstaat notions) and the boundaries of the power ceded to the state apparatus, and that “this pattern of expectations is mirrored in a whole host of other institutional contexts that deal with social governance: witness the UN system as a conspicuous example.” (Id., 11).

Into the mix of internationalization and constitutionalization, Thompson suggests an additional three trends. The first is the growth of governance through heretofore private law mechanisms. The second is juridicalization of governance beyond the state. The third is the uncontrolled character of constitutionalization and the creation of effective global communities. (Id., 11-12). This last trend appears critical to the analysis.

It is within this dynamic process of change in both law and state that corporations find both a space for their reconstitution as actor rather than as object. Thompson suggests that “companies are caught up in these wider processes: the idea of corporate citizenship and global corporate citizenship finds a convenient home amongst these linked processes.” Id., 12). We can now better appreciate Thompson’s central argument:

That companies are tapping into this trend. They want to have their rights and obligations more clearly articulated and formally recognized like everyone else. They want recognition for the civic duties and social obligations being thrust upon them or for which they are voluntarily taking responsibility. They want to become more openly political, to operate more transparently as public actors and be recognized as such. They are tentatively moving in this direction, quietly exploring the implications of claims to the capacity of citizenship that these moves entail, but at the same time opening themselves to a different type of scrutiny.

(Id., 11).

In the face of these movements, what becomes critical to Thompson is an understanding of the possibilities of constitutionalism as a factor in the construction of the character of corporate citizenship. Thompson looks to four models: neo-liberal, autopoietic, pragmatic-customary, and governance. (Id., 13-17). Thompson perhaps gives short shrift to the neo-liberal model. He suggests greater value in both the autopoietic and governance models. But both also suffer what for Thompson are critical defects. The cultural polycentrism, functional differentiation, diffusion and overlapping systemic communication of networked systems horizontally as well as vertically deployed—that is, its polycontextualism—is dismissed as “little more than an interestingly imaginative flight of fancy.” (Id., 14). It might even serve as a cover for an internationalization of Anglo-American privatizing institutionalization of informal networks of law. And that criticism is closely tied to the defects of the last model. Governance models suffers a lack of verticality; a defect that suggests a criticism of the vacuum at the center of the European Union, form which this model is said to be drawn. Thompson asks, “how do we ensure at least some elementary conformity to the RoL in a system where there is no competent authority with the means to enforce whatever ‘administrative law’ there may be in the making?” (Id., 17).

This leaves the third model. Thompson appears to favor this model, said to be grounded in the realities of British constitutionalism. The model has appeal because it is not grounded in a catechism—its theoretics are antitheoretical. And it is grounded in the will of the subject populations as memorialized by those institutions charged with guarding the legitimacy of government. (Id., at 15). For Thompson, British constitutionalism

is very much like the international quasi-constitutional process discussed so far: it is an assemblage of practices rather than a set of fundamental laws; it is a political constitution, based on an evolving political compromise, rather than a legal constitutional settlement based upon a firm written document; it involves a combination and coordination of public and private rule making designed so as to preserve both the social autonomy and public interest; it represents a structural coupling between diverse and fragmented social discourses.” (Id., 15).

Its focus on rule of law is important as a grounding principle of any international legal or institutional order. (Id.). Its Sozialstaat and Rechtsstaat principles, as guarded by the governance elites are assured by adherence to the famous Diplock Principles (proportionality, reasonableness, process fairness and due process). (Id., 16). Thompson suggest that these principles “could offer an effective set of criteria to be imported into the arena of quasi-constitutionalization so as to open up a discussion of the legitimacy of that rule making and power distribution system.” (Id.).

And thus the problem for Thompson. It is not clear that this third way is going to have a chance at contributing strongly to the construction of the new international order—and to discipline the place of economic actors within it. Thompson states: “”The RoL is effectively being given away and there seems to be little that can be done to stop it.” (Id., 17). Thompson fears the privileging of process—what he calls rule by law—over basic substantive government limiting principles (rule of law). Thus for him the problem: “how do we ensure at least some elementary conformity to the RoL in a system where there is no competent authority with the means to enforce whatever ‘administrative law’ there may be in the making.” (Id., 17).

Legitimacy, if it comes at all, might be possible through the importation of something like the Diplock Principles. (Id., 17). Thompson summarizes the resulting potential families of potentially legitimate global governance into four types falling within a matrix , one axis of which includes types of democracy (from popular top Constitutional/Republican), and along the other axis of which include the character of institutionalized government (from representative to governmental). (Id.). Thompson’s personal favorite—representative, constitutional/republican governance of a type characterized by intergovernmentalism and multilateralism, like the World Trade Organization. (Id., 18). “Unfortunately, this is the poor cousin of governance models in the debate about ‘global governance’, because it is thought increasingly redundant in an age of transnational, transterritorial and transformative relationships.” (Id.). And worse, the constitutionalist context in which these discussions are had are likely to remain chaotic. “This might make it a durable disorder of sorts (rather than a non-durable disorder—a decidedly uncomfortable prospect.”). (Id., 18-19). Within this durable disorder, there will be a place for corporate citizens, but its scope and character remain unknowable for the moment. And perhaps worse, what space is obtained shall be taken by corporate citizens rather than received.

In this essay Thompson is at his best in unpacking concepts of corporate citizenship from those of corporate social responsibility and in developing a conceptual framework from which to theorize this notion of citizenship as a political rather than an economic phenomenon. It is clear that corporate social responsibility is better conceived as action rather than as status. It is also right to believe that corporate action ought to have grounding in status concerns. That focus on status concerns was at the heart of the great debate between Adolph Berle (1931) and E. Merrick Dodd (1932) over the nature of the corporation. (Dallas 1988, 73-77). Social responsibility has at least been subliminally understood as a manifestation of the underlying debate about status and the nature of corporations as economic political or social actors, and the appropriate mix of the three. (Backer 2006a). The relationship between corporate citizenship and corporate social responsibility nicely demonstrates the difficulties of miscausation in analysis. (Nietzsche 1972 (1889), 492- 501). For example, Thompson classifies corporate taste for citizenship as a function of a set of values and of financial gain. Yet corporate values reflect the values of the greater society, and values based choices targeting financial gain also suggests a proxy for such values. Where such a strong nexus exists, then both should reflect each other—values will shape economic choice. (Backer 2007; Backer January 12, 2008). As such, the taste for corporate social responsibility as a manifestation of a taste for corporate citizenship among corporations may in turn reflect similar tastes within the non-economic elites, or at least within the communities of investors and consumers. It is for that reason, for example, that I have suggested that these actors sometimes form closed communities with significant governance power. (Backer 2007). Each affects the others’ tastes for values and conduct that in welfare maximizing in the context of those shared values.

Additionally, miscausation might affect the discussion of the claims for the benefits of global citizenship discourse as well. Thus, for example, are the rebranding potentialities of corporate citizenship claims, as Thompson suggests, an explanation of the reasons for the development of a taste for corporate citizenship because of its economic effects (and thus another proxy for corporate social responsibility) or because of its political benefits (the recasting of brand loyalty into something closer to political patriotism. There is a history of the latter that is worth deeper interrogation. For example, the American automobile manufacturers effort to induce Americans to buy American cars from the 1970s seems to implicate both economic and political elements. And the response—the immigration of foreign manufacturers to the United States—suggests the difficulties of politically based branding in an age of free movement of capital and globalization.

Indeed, the discussion of the rationale for corporate citizenship is important and insightful. It’s greatest contribution is the drawing of links between economic and political behavior. (Roe 2003). In one sense, Thompson is suggesting that the push to corporate citizenship is the ultimate defensive tactic for public corporations. It essentially represents a means of end running the elaborate system of regulation for sales of control that have been created in market economies like those of the United States (cf. Williams Act) and the European Union. This is a powerful insight that deserves careful development. Equally interesting is the discussion of market differentiation for money that has great political consequences. Thompson is right to point out the differences between liquid markets and markets based on private equity financing. It would have been useful to elaborate on the suggestion that the latter has political consequences for democratic and open governance. This is particularly important in the context of sovereign wealth investors, whose power conflates public and private welfare maximization modalities that may have implications for governance. (Backer 2008c).

Lastly, the relationship between corporate social responsibility and corporate citizenship concepts suggest a more complex relationship between acts and status citizenship. As I read it, the recharacterization of corporate social responsibility as the aggregate of those acts that legitimate corporate claims to citizenship status were compelling. But it did not necessarily suggest the second order ‘acts citizenship’ Thompson posits. Instead, it suggested to me a basis for status citizenship the way that voting and military service suggest the acts necessary to legitimate the status citizenship of individuals. Again miscausation rears it head. Are corporations citizens because they act within the legitimating parameters of corporate social responsibility, or do they act within those parameters because of their citizenship status? It seems to me that either is plausible, but the differences are significant. Yet neither detracts from the crucial distinction between acts of corporate social responsibility and the condition of citizenship.

And thus, I do not believe, as do Thompson and Crane et al. (2008), that companies claim citizenship on the basis of their acts and that such an ‘act-citizenship’ context essentially limits the character of the citizenship available to corporations. Rather, it is possible to suggest that, at the international level, corporations have begun to define the scope and nature of their citizenship rights as grounded in the basic principle of free movement of capital. (Backer 2006b). As a consequence the citizenship status is not downward looking (that is, to an accumulation of rights within a particular host polity) but upward looking (to the rights of public organizational status at a supra national level, where states and other public actors all interact in a more horizontal plane). Thus, the citizenship that is at the heart of Thompson’s paper might be better understood as both status oriented and political, rather than directly economic and grounded in the constant production of certain acts (corporate social responsibility). If that is so, a richer and more complex analysis follows. That analysis suggests the creation of a networked space above the state level in which a variety of actors may exercise public and private power to the extent of their limited competences. For corporations, of course, this would have extensive welfare maximizing effects—usually translatable into economic terms. Thus the value of corporate citizenship at the international level is neither dependent on acts (miscausation) nor essentially economic. Rather, in a politically reshaped global governance system above the state, corporations might seek to assert citizenship as a means of legitimating their right to interact with other juridical persons on similar terms. Might state corporations be given rights to enter into treaties? Are these entities corporations? (Backer July 30, 2008). Does corporate citizenship require or permit particular kinds of scrutiny? (Backer 2008b) These are some of the core questions that will require substantial debate in the coming decades.

As such, when the discussion turned to the constitutionalization portion of the paper, I had hoped for an elaboration of citizenship and the possibilities of its naturalization (or regulation) within the competing constitutionalizing frameworks currently advanced for understanding the rising shape of global governance. (cf. Backer 2004). Thompson did an excellent job of setting the stage. I would have profited from an elaboration of the constitutionalization of international global governance within the corporate citizenship debate.

Constitutionalization is itself a tricky issue. In its form of constitutionalism, it reflects a wide range of understanding that touch on both state construction and the relationship between states, the community of nations, and the supra national system (to the extent such may in turn be constituted). (Backer July 22, 2008). It also implicates powerful substantive alternatives. (Backer 2008). But corporate actors unsettle the usual framework within which constitutionalism is discussed. It adds a critical additional element that is only slowly being absorbed at the level of the nation state. For example, Bolivia’s recent effort to turn ethnic collectives into constitutional citizens is a case in point. (Backer December 9, 2007). But what of economic collectives? Religious collectives? That addition to the mix of citizens subject to the domestic dynamics of constitutionalism compounds the difficulties of considering the corporation as a subject (citizen) of international law. In a sense, then, within constitutionalist discourse, issues of corporate citizenship exist on two levels—first at the domestic level and dealing with the social and political position of the corporation within the polity; second at the international level and dealing with the issue of the public or private status of the entity. It is one thing to suggest domestic corporate citizenship for purposes of domestic policy, it is quite another to suggest corporate citizenship for purposes of international norm making, responsibility and the like.

Moreover, the parallels between the mechanics of an elaboration of corporate citizenship, and that of the elaboration of emerging principles of international governance might be usefully explored here. Thus, for example, it should not be surprising that the development of corporate citizenship principles is an elite affair. It should be even less surprising that elites might shape the concepts to maximize their own idiosyncratic welfare. And it is no surprise at all that thus benchmarked, the concept should have a strong effect (eventually on the rest of the community). Similar patterns apply in the construction of rules of political community. Thus, for example, it might be worth exploring the ways in which the corporate citizenship conversation, like the globalization conversation that preceded it, is essentially a Western and elite conversation in which European and American states and their corporations will play a disproportionately important role. Indeed, it might be possible to suggest that, like international law, corporate citizenship and social responsibility are effectively a western conversation with global consequences. (Backer May 28, 2008).

Like Thompson, I am drawn to the ancient customary law system represented by British constitutionalism. It suggests, as applied to the international plane, a possibility for an open weave governance that might well permit all sorts of juridical constituted persons—ethnic groups (the Welsh for instance), economic collectives and individuals—to participate in the construction of a pragmatic set of constitutional norms. I wonder, though, whether the Diplock Principles that Thompson advances are also something of a miscausation. It is not clear whether those principles work because they preserve the legitimacy of the values underlying the system, or that they work because they assume the adherence to those underlying principles as immutable, which are then applied. And indeed, I wonder whether the description of British constitutionalism doesn’t begin to sound like the sort of networked spaces within which polycentric and polycontextual law is not now being framed—all within the boundaries of global competence.

As such, it might be possible to suggest that what appears to be emerging on the global stage is “the construction of an amalgamated community based on a set of commonality from which political union is possible, while supporting subsystems of communal organization operating within tolerable levels of difference. This last characterization implicates the autopoietic approach to understanding human collective systems. Autopoiesis refers to systems, and particular legal and social systems, which produce and reproduce their own elements by the interaction of their elements. (Teubner 1987, 3; Luhmann 1989, 136).

“Social systems cannot exist in splendid isolation from their environment. This point is conceded even by ardent proponents of regime specialization. . . . Similarly, legal subsystems coexisting in isolation from the remaining bulk of international law are inconceivable. There will always be some degree of interaction, at least at the level of interpretation.” (Simma & Pulkowski 2006, 492).

Thus, the system suggests the notion of structural coupling from autopoiesis. (Luhmann,1992; Teubner 1998). Law serves as both communicative vehicle and as a system in its own right as it both communicates and serves as the means to communication, the tight and loose coupling between law and its social context in the interactions between legal and social systems. At the same time it suggests law as detached from political as well as economic collectives, even within common law based constitutional theory. (Backer 2008a).

Moreover, rule of law need not necessarily have a strictly public law context to be effective. I have sought to show the development of substantive rule of law based governance principles within the supply chain governance organization of large multinational corporations. (Backer 2007). Thompson prefers intergovernmentalism to other forms of engagement with global constitutionalization in general, and by implication with the problem of corporate citizenship in particular. Intergovernmentalism suggests the continued privileging of politically constituted states, even in a world in which large economic actors might be treated as invested with a public character (and consequentially vested with public power at the supra national level). Were states to be constituted as strictly political entities, then such a privileging might be plausible. But it is clear now that states are as strictly political and regulatory as corporations are strictly economic and participatory entities. (Backer 2008c).

Just as lawmaking might have become unmoored from the state, the state has itself become unmoored. And so, to my mind, the issue of corporate citizenship serves as a proxy for the equally important converse issue—that of the private rights of states as participants in global markets. At the international level, states and other collectives might well have to meet more as equals, even as they interact within vertical hierarchies in particular contexts. But even those localized hierarchies are now unstable. Corporations negotiate “agreements” with small states; nations negotiate treaties. Large corporations can coerce small states in ways that mimic the ways in which larger states can do the same to smaller and more vulnerable ones. States and corporations are now capable of deploying forces in the field—sometimes states hire corporations that serve as mercenary armies for hire. The clear lines of public and private authority, and even the once clear lines of its Marxist Leninist opposite, have become blurred. (Backer 2006). In that context, constitutionalism and the constitutionalization of governance have become more complex concepts. More importantly, the range and capacity of players has substantially increased as well. Thompson has produced an excellent analysis of the contribution of corporate public ambitions to this mix. This paper deserves careful and thoughtful attention.

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