Democracy Part XIX: Electoral Legitimacy in Honduras and Afghanistan

In this age of mass democracy, elections are the essence of democratic constitutionalism. Elections, like some purifying elixir, cleanses all (political) sin of states that indulge the practice. An act of sovereign will by which the people of a state convey their political power to agents who act on their behalf, elections conform the appropriate relationship between state apparatus and the sovereign masses. Elections have proven crucial for legitimating states, and their governments. There is a strong connection between democracy and elections. One is impossible without the other. Together they implement notions of popular sovereign in the construction and operation of government.

But not all elections appear to have the same effect. A comparison of international reactions to the recently concluded elections in Afghanistan and those just finished in Honduras suggest that elections, like other legitimating markers of the norms of transnational constitutionalism, can also serve as instruments of foreign policy in ways that will ultimately weaken the value of elections as expressions of legitimating constitutive mass democratic action.

Consider first the recently concluded elections in Afghanistan. The elections were at first deemed suspicious. "Widespread fraud in the 20 August first round led to Mr Karzai being stripped of the outright win he appeared to have secured.A second round run-off scheduled for 7 November was called off after Mr Karzai's sole remaining challenger, Dr Abdullah Abdullah, pulled out saying the vote could not be free and fair." Q&A: Afghan Elections, BBC News Online, Nov. 3, 2009. But the difficulties of the elections, and their dubious reflection of the will of the people, seem to have taken a secondary role to the requirements of the international community in the context of the conflict in Afghanistan. "Western governments were privately reluctant to risk the lives of troops and voters to secure a second round when the result was already a foregone conclusion." Id. As a consequence, the international community adopted something like a "earn legitimacy going forward" approach to elections.

Western diplomats hope that his dubious political mandate will oblige Karzai to "earn legitimacy" by delivering services to his people and cracking down on high-level corruption, thought to be fuelling support for the Taliban. But questions remain whether he will be capable of delivering what the foreign powers demand, particularly as he struck deals during the election campaign with a number of unsavoury powerbrokers, who will expect to be rewarded by the new government. Highlighting the potential problems, he made his commitment to reform whilst flanked by his two vice-presidents, including Mohammad Qasim Fahim, a notorious former warlord who Karzai selected as a running mate, despite strong opposition from the international community. Barack Obama yesterday moved to bolster Karzai's position, saying that although the process had been "messy", the "results were in accordance with and followed the rules late down by the Afghan constitution". But many Afghan leaders say that is a questionable assertion as Karzai did not receive more than 50% of votes, which the Afghan constitution says the president must have. Karzai vows to fight corruption after re-election as Afghan leader, The Guardian (UK), Nov. 3, 2009.

The results might affect the quest for democratic legitimacy is significant ways. "Observers believe the disastrous election is likely to do lasting damage to western efforts to stabilise the country. Interventions by western powers – first to force Karzai to accept the need for a second round, and then for it to be abandoned – have bred popular cynicism about a democratic process many Afghans now believe is controlled by foreigners. The Taliban have been exploiting the debacle, by mocking the process and sowing fear that they would disrupt the second round through violence." Karzai vows to fight corruption after re-election as Afghan leader, supra.

Yet the recently concluded elections in Honduras have produced something of a different result. With no sign of fraud, important members of the regional international community appear ready to deny the government thus elected recognition as the legitimate successor to the Zelaya government.

The political crisis and election have divided the region, with the US indicating it would endorse the result if the elections are deemed "free and fair". Costa Rica, which has long been the mediator between the two sides in this crisis, has said likewise, but other Latin American countries have opposed the vote. Argentina and Brazil have said they will not recognise any government installed after the election, arguing that to do so would legitimise the coup which ousted an elected president, and thus set a dangerous precedent. The main regional grouping, the Organisation of American States, has declined to send an observer mission. Honduras Voting Stations Close in Presidential Poll, BBC News Online, Nov. 29, 2009.

And the man ousted form the Presidency, has been working hard to discredit the election, scheduled long before his ouster, and in which he is not a candidate. "Mr Zelaya had called for a boycott of the election, saying high abstention levels would discredit the government of the interim president." Id. In what might be the oddest, yet most interesting pronouncement, on elections and legitimacy, Mr. Zelaya has begun to elaborate a position that discredits elections on a sort of "false consciousness" basis.

Mr Zelaya, who was forced out of the country on 28 June, told Reuters it would be undemocratic if the US backed an election held by a post-coup government. "The United States changed its position. Its priority was the restoration of democracy and then elections, now they put elections as the priority," he said in a telephone interview from the Brazilian embassy, where he has been holed up since slipping back home from exile in September. Zelaya Warns U.S. Support for Honduras Election Divisive, BBC News Online, Nov. 25, 2009.

The suggestion, of course, is that there is no connection between democracy and elections. Yet this is a position that might well undercut the arguments Mr. Zelaya has raised in support of his position that his ouster was illegitimate because he was the duly elected President of Honduras who could be removed only by popular action.

But what result these efforts to discredit an election that would rid Honduras of the mostly discredited government that purportedly succeeded Mr. Zelaya? The most logical would be the imposition, effectively, of an internationally sanctioned dictatorship in Honduras. Brazil and Argentina have a vested interest in the person of the individual now no longer the President of the nation. And they appear willing to reinvent the Honduran constitution, in the name of democracy, to advance the cause of a man who would have ended his term as President of the Republic on January of 2010. For it seems that the only alternative to the seating of the candidates chosen by the Honduran electorate would be to reinstate the Zelaya Presidency. But that action would itself constitute a coup as anti-democratic as the late June "coup" that saw Mr Zelaya ushered out of the country. Indeed, neither Brazil nor Argentina make any pretense of even suggesting the need for any sort of internal electoral expression of support for such reinstatement. And even if there were, such an extension of term would be invalid under the Honduran Constitution.

And there is the ultimate object--the revision of the Honduran Constitution so that it conforms to the political tastes of others--the Brazilians, the Venezuelans, the Argentines. All of these potentates purport to act for the Honduran people, yet have a paramount duty to protect and advance the interests of their own states. And non are accountable to the people of Honduras for their political impositions.

And thus a tale of two elections--and two visions of the legitimating effect of popular sovereignty. For Latin America, Hondurans are like children-- incapable of exercising their sovereign rights expressed through elections, in the face of what they consider to be a "coup" effected by the legislature and judiciary in June. Until Brazil and Argentina are satisfied that the Honduran people can vote in a way they deem fair and appropriate, then no popular action will be deemed legitimate. The political advisor to Mr. Lula Da Silva, Marco Aurelio Garcia, made that clear recently.

"Very important countries -- the majority in terms of population and political weight -- won't recognize (the result)," said Garcia. . . . "It would be good if that expectation were not frustrated," Garcia said he told Jones. Recognizing the election was paramount to legitimizing a coup in a region that has been consolidating its democracies, said Garcia, adding that conditions for free elections in Honduras were not present. "The election has the fingerprints of a coup," said Garcia. "If we (accept) it, we're encouraging another country to adopt the same solution -- 'We don't like this president; let's topple him.'" U.S. risks isolation over Honduras election: Brazil, Reuters, Nov. 27, 2009.

Beyond the suggestion of a notion of electoral false consciousness, which Mr. Garcia raises, is the equally interesting notion that electorates are incapable of seeing the falsity of their consciousness. Only foreign states are capable of understanding such false expressions of democratic action. But such an idea has perverse effects. But it also is based on a false premise--that the removal of a President by its legislature and judiciary would invariably constitute a "coup" meant to "topple" a president. At least in this case, the removal effectively followed a pattern more like an impeachment and removal rather than a coup followed by the installation of a repressive regime with no connection with the electorate. Perhaps the international condemnation of the illegal exiling of Mr. Zelaya had this salutary effect. Perhaps those who violated the constitution by exiling Mr. Zelaya ought to be punished--according to Honduran law. But the Brazilian position--separating democracy from elections, suggesting a presumption of illegitimacy to elections that follow democratic dislocations, and conflating elections as expressions of popular will with potentially illegal or unconstitutional actions that might have preceded the elections--provides a dangerous precedent for states interested in interfering with the internal affairs of other states for their own ends.

The oddity of the reactions to the Honduran elections becomes clearer when considered against reactions to the outcome in Afghanistan. In that case even the form of an election of dubious validity served as a sufficient cover to legitimate the government brought (back) to power. In that case, most states, including Brazil and Argentina, raised no objections either to the circumstances in which the elections were held, or the interference in those elections of outsiders. Perhaps the answer is that elections and democracy are more fluid concepts when a state is in the middle of a war in which foreign states have a controlling role. In any case, it seems that consistency, and especially consistency in the application of rules for embracing elections as essential to mass democracy and to legitimate governments instituted thereby, is the hobgoblin of rigid thinking.

Great minds look to elections, democracy and legitimacy, as more elastic concepts. Sometimes, it seems, that elections might not be legitimate when states are willing to apply a "false consciousness" approach to elections and democratic expression, as the Brazilians suggest in Honduras. On the other hand, sometimes otherwise dubious elections may serve as legitimate expressions of the popular will and democratic legitimacy conveyed on the basis of the application of a "earn legitimacy going forward" approach adopted by the United States and others in the context of the Afghan elections. One wonders what might have happened if the "false consciousness" approach had been adopted to deprive Mr. Karzai of the legitimacy of his election.

Equally interesting would be the application of the "earn legitimacy going forward" approach to the government now elected in Honduras. Thus, for example, it might be possible to condition expectations on the successor Honduran government that night parallel expectations of Mr. Karzai's government, reconstituted to suit the context.

This is not to say that the world should spare Honduras' post-election government a scolding. The current and future authorities in that country, and indeed the region, must understand that democratic free lunches are not available anymore. They must be told, either by U.S. Secretary of State Hillary Clinton, Arias, or Brazil's President Luiz Inácio Lula da Silva (now that he has also been dragged, via his embassy, into this mess) that there will be much democratic debt to repay if the world is to recognize election results and turn a blind eye to the coup. Kevin Casas-Zamora, Courting Disaster in Honduras, Foreign Policy, Sept. 23, 2009.

This sounds like the kind of approaches that appear to have been sufficient to support a substantially more dubious election in Afghanistan. Yet those possibilities also suggest the difficulties of the current state of transnational constitutionalism as a mechanism for ordering frameworks for determining the legitimacy of government--the lack of consensus for determining the legitimacy of elections as a legitimating expression of mass democracy.

Honduras Between Restoration and Legitimacy

The Honduran constitutional crisis continues to lurch toward its messy end. At the insistence of the international community, both sets of protagonists in the conflict agered to s set of extra constitutional actions that were meant to restore Mr. Zelaya to his office and ensure that the legitimacy of upcoming elections would be recognized. To that end, the Tegucigalpa/San José Accords provided that in return for Mr. Zelaya renouncing efforts to call for constitutional changes through a National Constituent Assembly (Paragraph 2), scheduled national elections could proceed in November (Paragraph 3), the armed forces would be restrained from interfering with the elections (Paragraph 4) and the international community would restore their economic and political cooperation (Paragraph 7). In addition, the accords provided for the establishment of a truth commission (Paragraph 6), which would be administered in large part, by elements of the interanational community (Paragraph 7).

The critical part of the bargain for the international community, though, was that Mr. Zelaya would be restored to office for the remainder of his term. But there was a condition to this last critical condition.

To achieve reconciliation and strengthen democracy, in the spirit of the subjects of the proposal for the San Jose Accord, both negotiating commissions have respectfully decided that the National Congress, as an institutional expression of popular sovereignty, in use of its authority, in consultation with the entities it believes pertinent such as the Supreme Court of Justice and in accordance with the law, resolve the issue regarding “restoring possession of the Executive Power to its status prior to June 28 until conclusion the current governmental period on January 27, 2010.”

The decision the National Congress adopts should establish a basis for achieving the social peace, political tranquility and democratic govern-ability the society requires and the country needs.

Id., at Paragraph 5.

But Brian Jackson recently reported:

The Honduran Supreme Court [official website, in Spanish] on Wednesday ruled that ousted former president Manuel Zelaya [JURIST news archive] cannot legally return to office. The court's decision [Reuters report] is a significant blow to Zelaya's prospects for regaining power. Under the so-called Tegucigalpa/San Jose accord [Honduras News materials], Zelaya would have been able to return to the office of president assuming Supreme Court approval and an affirmative vote by the Honduran legislature. The legislature's vote, originally scheduled for November 29th [Reuters report], has been moved back to December 2nd. It is not clear what effect the Court's non-binding opinion will have on that vote. Similarly, it is not clear how the decision will effect the results of the Honduran presidential election [Guardian report], scheduled for November 29th. Neither Zelaya nor current president Roberto Micheletti are on the ballot for that election.

Brain Jackson, Honduras High Court Rules that Zelaya Cannot Return to Power, Jurist, Nov. 26, 2009. And so the drama tat is the internationalization of Honduran constitutionalism continues to develop.

The object, now is clear. Both sides see the control of the Presidential office as critical to the survival of the successor regime. The Honduran regime currently in power means to game the accords to its advantage. To the extent that it can extend the process of implementation through January, it can deny Mr. Zelaya any time to effectively game the accords to remain in government after the end of his term in January or to engineer conditions that would suggest the illegitimacy of any successor president. See, e.g., Alexandra Olson, Costa Rica: Honduras Vote Must be Backed If Fair, StLToday.com, Nov. 27, 2009 ("Costa Rica promised Friday to restore ties with Honduras if its presidential elections are clean, joining other nations in rejecting ousted President Manuel Zelaya’s insistence that recognizing the vote would legitimize a June coup." Id.); George Vickers, The Sham Elections in Honduras, Foreign Policy, , Nov. 25, 2009 ("This election is taking place in a political environment contaminated by repression, violence, and fear. If the U.S. government recognizes the vote, it will grant the de facto regime led by former parliamentary head Roberto Micheletti a legitimacy it does not deserve; it will needlessly lengthen a crisis that is hurting Honduras, its people, and its prospects for real democracy; and it will harm the U.S. image in the region.")

To that end, both sides will play to the international community as arbiters of legitimacy through the mechanisms provided by the accords--the verification commission and ultimately the truth commission.

To achieve reconciliation and strengthen democracy, we stipulate the creation of a Verification Commission to verify commitments made under this Accord and those deriving from it, coordinated by the Organization of American States (OAS). Said Commission will be composed of two members of the international community and two members of the national community, the last two to be chosen, one each, by the parties [i.e., one by Micheletti and one by Zelaya].

The Verification Commission will be responsible for attesting to the strict compliance with all of the points of this Accord and will receive the full cooperation of Honduran public institutions for that effect.

Tegucigalpa/San José Accords at Paragraph 6. At the same time, the opinion of the Honduran Supreme Court serves as a reminder that ultimately constitutionalism remains a domestic issue. Unless the international community is willing to reconstitute the Honduran Supreme Court with members more in accord with internationalist sensibilities, the mandate of the international community and its reading of the Honduran Constitution may carry little weight with domestic jurists who owe no allegiance to any system but that over which they preside. Still, in this respect the members of the Honduran Supreme Court have an unlikely role model--the justices of the American Supreme Court. Medellín v. Texas, 128 S.Ct. 1346 (2008).

The Accord purports to be one among the leaders of the Honduran people and internal to Honduras--an expression, of sorts, of Honduran sovereignty guided by an international hand.

Taking into account that this Accord is the product of the understanding and fraternity of Hondurans, we vehemently request that the international community respect the sovereignty of the Republic of Honduras and fully observe the established principle in the United Nations charter of non-interference in the internal affairs of other States.

Tegucigalpa/San José Accords at Paragraph 8. Yet the agreement to settle the constitutional legitimacy of Honduras was made through and with the international community.

We take this opportunity to thank the International Community for its accompaniment and good offices, especially the Organization of American States and its Secretary General, Jose Miguel Insulza; the [diplomatic] Missions of Foreign Ministers in the Hemisphere; the President of Costa Rica, Oscar Arias Sanchez; the Government of the United States, its President Barack Obama, and his Secretary of State, Hillary Clinton.

Though relegated to a formal "acknowledgment,", when read together with the "begging" provisions of Paragraph 7, it suggests the locus of sovereign authority as shared. And, indeed, it has been clear that the international community has intervened, in part, because it thinks litrle of the Honduran Constitution itself. "It was the United States' own handpicked negotiator, Costa Rican President Oscar Arias, who called the Honduran Constitution "the worst in the world."" George Vickers, The Sham Elections in Honduras, Foreign Policy, , Nov. 25, 2009.

As such, it is possible to understand the Accords as creating an interesting polycentric governance framework. The Honduran Supreme Court is Supreme within its jurisdiction and in the interpretation of the Honduran Constitution. But the Constitution itself is subject to a set of framework limitations that are administered by an international body--the Verification Commission--which is constituted as an extra constitutional (and extra national) body with the authority to legitimate the actions of all constitutional actors. More importantly, it appears vested with the critical autority to legitimate the elections scheduled for the end of November.

The failure to comply with any of the commitments contained in this Accord, as verified and declared by the Verification Commission, will result in the activation of measures the Commission will establish for the transgressor or transgressors.

Accords, Paragraph 6. But action will require the complicity of both the international community and domestic actors. The reactions of both in the critical days between this action of the Honduran Supreme Court and the installation of a new government in January will tell us much about the efficacy and character of any transnational element in constitutionalism.

Pluralism and Power: South Africa Confronts Hierarchy in Diversity

Pluralism, or its cousin, multiculturalism, might suggest a more horizontal relationship among different communities sharing the same territorial space. It suggests mutual respect and toleration. It also might suggest a willingness, among a political community, to abandon notions of assimilation to a dominant discourse and a dominant framework for inclusion. On the other hand, multiculturalism might instead represent little more than an effort to extend the willingness of a dominant group to tolerate the cultural, ethical and moral differences of minority communities. In its more perverse aspect, it might represent little more than a positive framework within which assimilation to the dominant framework is made easier--or perhaps reduces resistance to such assimilation.

In the United States, of course, that latter two have seemed to dominate official approaches to pluralism, especially with respect to the assimilation of the poor and the treatment of sexual minorities. With respect to the administration of the poor, see, Larry Catá Backer, Welfare Reform at the Limit: An Essay on the Futility of ‘Ending Welfare as We Know It,’ 30 Harvard Civil Rights-Civil Liberties Law Review 339 (1995); Larry Catá Backer, By Hook or By Crook: The Drive to Conformity and Assimilation in Liberal and Conservative Poor Relief Theory, 7 Hastings Women’s Law Journal 391 (1996). With respect to sexual minorities, see, Larry Catá Backer, Toleration, Suppression and the Public/Private Divide: Homosexuals Through Military Eyes, 34 Tulsa Law Journal 537 (1999); Larry Catá Backer, Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 University of Florida Law Review 755 (1993).

Even as political societies move toward greater respect for difference, the limits of that tolerance remain firmly grounded in higher order rules. It seems clear that respect for identity, morals, ethics, and communal practices remain limited by some overarching constituting framework. The move toward pluralism, the leveling implicit in ideologies that embrace some sort of multi cultural ideal, carries within it not so much a leveling of cultural difference as a reordering of the hierarchy of values within which cultural difference is managed and, at its limits, suppressed. The pluralist idea, thus speaks not only to toleration, but to hierarchy and control. Hierarchy of values is implied by a framework in which cultural difference is judged by a set of superior values that manage and limit all others. Control of values follows from its construction. A values system that manages must, in turn, be managed. Those who can control the superior value system can effectively manage all plural cultures subject to its control. Pluralism, then, perversely, both opens a greater space for individual and communal difference while it creates a greater power to control all such communities through control of the framework of the "higher law of tolerance." And perhaps most importantly, a hierarchical system of toleration ensures a more efficient basis for controlling plural populations. In place of resistance, there is conformity. In return for a broader toleration and recognition of difference, there is a greater willingness to submit to a system in which communal expression is corralled within pens not of their own making. As long as the restraining rules appear sourced in higher values, rather than in the desires of competing communities, conformity and manageability is possible.

In this sense, the search for "shared" values, for higher order values sourced above the level of communities, becomes a political goal of great value. One can understand the great current project of internationalizing "human rights" and other values as one approach to this goal. But within plural states, the same approaches have been undertaken within the highest levels of government through values based constitutionalism. The interplay between the two marks the current frontier in the development of hierarchies of values control. See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

Control of the framework structure within which pluralism is managed now assumes a great political importance. The political dimension of this tendency toward hierarchy in the construction of plural societies was recently highlighted in South Africa. Talks to be Held Over "Cruel" Zulu Bull Killing Ritual, BBC News Online, Nov. 24, 2009. Pluralism, the disciplinary effects of higher values, and the management, through law, of cultural diversity are all implicated in efforts by an animal rights group, which is "suing Zulu King Goodwill Zwelithini, arguing that the ceremony, known as Ukweshwama, is cruel. A royal spokesman said the killing was a highly symbolic way of thanking God." Id.

At its core, the action represents a contest over control of the fundamental right to define and determine the form and significance of cultural practice. For the animals rights group, that power shifted from the community itself to a higher level community--the Zulu are no longer masters of their own cultural and symbolic practices.

Animal campaigners say the Ukweshwama ritual does nothing to strengthen nation-building, social cohesion or peace. In a statement, Animal Rights Africa quoted an eyewitness as saying the bull was tortured for 40 minutes during a previous ceremony. Dozens [of people] trampled the bellowing, groaning bull, wrenched its head around by the horns to try to break its neck, pulled its tongue out, stuffed sand in its mouth and even tried to tie its penis in a knot. "Gleaming with sweat, they raised their arms in triumph and sang when the bull finally succumbed." The group's spokesperson, Michele Pickover, said the treatment of the bull was "unfathomable". "It physically pains us and is an affront to our dignity that an animal is made to suffer in such an overtly cruel and protracted way," she said. Id.

The values inherent in animal cruelty trump those of the Zulu. But more importantly, the measure of the relative strength of those values are set by markers outside the cultural territory of the community whose values are being measured. And also beyond their control.

For the Zulu, diversity and pluralism suggests now requires a defense of cultural practice on terms other than those of the Zulu nation itself. "Zulu groups are adamant that the ceremony will go ahead on 5 December, saying their rights are protected by the constitution." Id. But in the end, the Zulu will be reduced to arguing facts.

Royal spokesman Nhlanhla Mtaka told the BBC's World Today programme the activists had misrepresented the ceremony. "I have been attending this ceremony for 20 years and it does not happen the way they say it is," he said. "You will hear young men and old people singing Zulu hymns and people sitting down and teaching each other about the value and history of the Zulus."Id.

But the Zulu have ceased to be the masters of their cultural practices, or even in the control of the normative structure through which Zulu distinctiveness is elaborated and controlled. Reduced to dependent status, Zulu culture will be preserved, and managed, to the extent permitted under a higher law. It will be subject to constrains imposed from above and monitored by competing communities. The illusion of autonomy masks a necessary project of assimilation. In the end, something of a paradox--cultural and legal assimilation may be more efficiently pursued by efforts that suggest a preservation of difference, tightly managed from beyond, than by a direct coercive approach. Through difference, then, will come union.

Escape Velocity From the Orbit of the State: Is Governance Without Government/Government Without the State Possible?

Set out below are some preliminary thought on the question posed by the title of this essay--is it possible to reach escape velocity from the orbit of the state, and state-law systems? In other words, is it possible to conceive of governance without government, or better put, government without the state? While there appear to be no clear answers to me (for those with different or more elaborate views I welcome comments), I explore the possibility of such a state of "statelessness" in the materials that follow.

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Before the 16th century in Europe, states were an important component of a complex system of governance, over territory, individuals, beliefs, customs and the like. From the 16th century on a territorial principle was introduced cuius regio, eius religio, which by the 20th century had metastasized into the notion that political control of a territory subsumed within it the ultimate authority by the political apparatus of the state to control every aspect of life (and otherwise) within those borders—at least to the extent those borders could be defended. The line from the Treaty of Augsburg, through the great French state builders of the 17th-19th nineteenth centuries, to the great panoptic states of the late 20th century is clear enough. These states transformed themselves into great organisms through which a single set of government apparatus might control everything within the national territory to some set of ends usually described as something like “the greater good.” Though notions of the meaning of the “greater good” and the means to its attainment have varied considerably over the last four centuries, what has remained more fixed has been the adherence to the idea that this greater good is best effectuated by “the state.”1 By the end of the 20th Century the state had become the source of an authoritative allocation of values, the entity with the power to frame them through law, and to enforce them through the police power. To a great degree, Nietzsche’s ubermenschen ideal could be said to have been realized at last—not by natural persons engaged in a personal process of revaluation of values but rather in the elaboration of these great “state-beings.”

But success might well create the conditions for great change. Just as individuals are social animals, so, it appears, are states. States developed systems of relations with other states, and the resulting rules defined a community of states and the international system. But they also served to emphasize the permeability of borders. The reality that borders are permeable produced two simultaneous reactions—control and management. If borders were permeable, then, following the logic of cuius regio, eius religio, it was for states seek to control them to the extent technologically possible, and to assert the power to control the nature and manner of those penetrations. The logic of power and management, in the last half of the 20th century, has been manifested in “globalization”—the coordination of economic, political, cultural and religious systems across borders. But even as globalization has served states in their relations inter se, it also has begun to transform the nature and character of the state. The systematization, institutionalization and bureaucratization of the forms of interactions among states made possible under the conceptual logic of globalization have created a large network of transnational legal authority. As a result, it is no longer possible for the state apparatus to claim to assert sole authority within its territory. Globalization, in this sense, has produced legal pluralism and the diffusion of state power.

governance authority beyond the state and its formally constituted governance apparatus. Governance has become a protean concept.2 The evolution of these relationships, and the reconstitution of public governance frameworks beyond the state, or, beyond the direct involvement of elected officials within the state, has generated significant academic interest and the development of a host of theoretical approaches to this phenomenon. R.A.W. Rhodes noted in 1996 that “the problems of definition become acute when specifying this new process, condition or method. There are at least six separate uses of governance: as the minimal state, as corporate governance, as the new public management, as 'good governance', as a socio-cybernetic system, [and] as self-organizing networks.”3 These have captured the attention of influential academics and their followers within and outside the academy. Most center on the reconstitution of the state within networks of public power oriented upwards beyond national borders, downward, within but outside the traditionally understood borders of the apparatus of states, or outside the state in the formation of new collaborative arrangements for asserting the power of the state through agents or proxies.

In its most common emerging form, power diffusion and the rise of non-state governance sectors within a state has taken the form of “new governance” or new management.4 In the form of new administration and bureaucratic theories, it suggests power sharing under the ultimate, if remote, control of elected state officials.5 Beyond the state, globalization has tended to drive governance. Globalization is said to have produced movements toward governance that is based on functionally differentiated transnational public systems that operate above the state.6 These systems are autonomous collectives of actors who come together to create closed governance systems characterized by a limited functional mandate, autonomous structures that produce their own regulations that may be enforced through the community. These include regional human rights frameworks, regional trade associations, international governance systems like that of the International Criminal Court, and hybrid public-private entities like the World Bank and the International Monetary Fund. In these systems or networks, the state plays a role but no state dominates and no general political apparatus controls, at least one that mimics a government. Yet government participates indirectly through international organizations, the governance capabilities of which tends to pass for governance without the state.7 Likewise, states have fractured internally as they cede power upwards to supra-nationally constituted governance frameworks. The European Union has exhibited for example, a tendency to centralize and fragment public power, and to be receptive to non-governmental centers of governance, all at the
expense of the state.

Globalization has provided a governance framework environment marked by a fracturing and diffusing of power beyond political actors. Though the state remains very much alive, and continues to be powerful within the ambit of its authority, its claim to a monopoly of governance power, either directly or through public organs at the supra- or infra- national levels, is no longer plausible. This environment nurtures functionally differentiated communities of actors who together form closed self-regulating and autonomous governing systems that are not centered on any state, though perhaps ultimately connected to states.8 These are governance systems at the heart of what Gunther Teubner describes as polycentric globalization.9 This is not merely the sum of the privatization of governmental functions, common in assessments of polycentricity within the European Union governance framework,10 but the substitution/supplementing of state authority by private organs, self-contained and self referential, in which the state plays an incidental role. Prominent among these have been the rise of internally complete systems of operations of multinational corporations and their suppliers. In an advanced form, they might even merge both public and private actors within a system that is neither, in which an intimate and sustained interaction as equals produces something altogether different. Within this framework, even non-state actors acquire recognition as entities burdened with public obligations—for example to observe international human right norms. Significant in this respect are the current United Nations sponsored efforts to “operationalize” a regulatory framework imposing a direct obligation on multinational corporations to respect human rights. Governance authority has indeed leaked past the confines of the authority of public organs and, now reconfigured, includes actors other than states.

But has this nascent Umwertung aller Werte (“revaluation of all values”) of state power also produced a space within which governance is possible without government, and directly or indirectly, the state? Is it possible to point to systems of government that have achieved escape velocity form the state (and law systems) or even its proxies at the international level? Despite all of the great announcements of the end of the state or of law as the basic organizing principle of power within a defined territory, the state remains at the center of most discussion of governance. Even if no longer necessarily the only source of authority, the state is not absent from even the most polycentric or state rejecting system advocated as an overcoming of that enterprise.11

This essay provides an overview of the extent of “governance without government” outside the framework of the state system of public law. It suggests the possibility of a public law without public organs, and the constitution of governance beyond both government and state. At the same time it acknowledges both the limits and tentative nature of this exercise in power that is neither grounded in state based law-systems nor dependent on the state and a political-territorial based entity for its legitimacy.

The essay first examines the strands of the theoretical debate. The focus of this section is on the work of academics sympathetic to the project of governance without government. It describes a growing corpus of work that suggests that while non-governmental actors are, to an increasing extent, exercising governance power, defined in a variety of ways, none of these governance systems has achieved “escape velocity” from the state.12 Nor, for many, is such an escape necessary, feasible or prudent.13 The section concludes that the bulk of the academic literature shows an academy still very much tied to the state. Even the most advanced arguments retain a loyalty, if not a nostalgia, for the state. And why not? Were it Pierre Bourdieu writing,14 the structural necessity of this position would be emphasized. The suggestion might be made that this fidelity to the state and to law is an essential defining element of the profession; academics have internalized the structure of the state and law, which then determine their place within the social order. In the absence of law and the state, the lawyer, and the legal academic, would disappear; both have an essential role in the social reproduction of this structure,15 and in the preservation of status within the fields into which law study feeds.16 The academy thus has a basic duty and necessity of Bundestrue17 to the constitution of the state and the preservation of a hierarchy of power grounded in the rule of law (eventually) the state apparatus.

The heart of the examination is on the more radical notion that private entities also govern without the state or its apparatus in functionally differentiated regulatory communities. This is distinguished from the traditional public organization-centered focus of a governance without-government framework debate. In that context the chapter addresses a fundamental question: is this debate purely academic or does it point to substantial changes in the meaning and practice of governance. If the former, then the issues of governance without government reduce themselves to the perhaps still important search for new language to describe the dynamics of a traditional set of relationships. If the latter, then the debate points to substantial changes in the meaning of governing, and in the distribution of governing power among states and non-state actors. Those changes suggest that governance can focus on issues other than geography as a basis for building an autonomous regulatory community. That reduction in the importance of territorial control as the principal basis for the organization of governing power reorients the concept of the state—from a territorially privileged totalitarian ideal, understood in its sense of the state as the ultimate repository of all authority, to a political actor limited ultimately to what it can control within its territory. Governance without government is as much about the state as it is about alternative bases for the deployment of regulatory power. It is in this sense that this chapter will suggest that, like the state, territory is “extra” to governance, and that the issue of non-state governance is in reality one of the rarely considered issue—the possibility of government without a state.18

I. Reaching Escape Velocity From the State; Is It Possible?

For even the most progressive elements, governance can exist to a large degree free of government, but it may not exist entirely free of government. Can governance escape the state? Many have suggested the inevitable difficulties of this exercise, carving a space for governance without government that is ultimately dependent on the apparatus of the state or its manifestation in inter governmental organizations. This section suggests that the literature about the limits of government without governance can be usefully divided into four basic categories: as illegitimate; as a species of devolution; as management; and as mimicry.

The illegitimacy arguments are straightforward. They tend to arise from the application of assumptions that foreshadow their conclusion without much of a need for the development of argument. These include arguments that only formal law systems may be considered law.19 The
absence of formal law making power makes the study of such systems incomprehensible because
systems are impossible without law and law is impossible in the absence of a public with the legitimate capacity for law making,20 and enforcement.21 Moreover, the public law protections of important values—democracy, human rights, accountability and the like are less well protected in private norm-systems and thus reduce their potential illegitimacy.22

As such, much of what passes for the governance without government literature actually might be better understood as a theoretics of devolution. Most of these efforts effectively consider either the legitimate limits of governance in the absence of the state, or better put, the extent of governance devolution that might be considered legitimate.23 Typical of the new scholarship on “governance” without the state are those that suggest an essential role for the state in the organization and enforcement of systems of private or non-state power.24 Some have attempted a taxonomy of levels of need of state participation.25 The question of power sharing does not necessarily vest autonomous governance power—straying far from the controlling power of the a state or its instruments is still infeasible.26

Many speak of new forms of public-private partnerships, in which the role of the state becomes more managerial and less regulatory.27 The model is essentially similar to that of markets based regulation of global business28—the idea that the state serves an essential purpose where it exists to protect systemic integrity but steps back to permit a diffuse power regulatory environment in which every one plays by the state enforced rules of the market. In this sense, the literature is also one that is essentially concerned with management. In this form, the focus is on the ways in which non-state governance may be made more efficient.29 It serves as a substitute for direct governmental regulation but not as a substitute for validation and oversight by the state either directly or indirectly through organs of international organizations.30 The question isn’t one of ultimate authority, but of division of labor in which governance is privatized but for the benefit of a state-based government.31 Within this division, the motives and integrity of those responsible for devolved governance are necessarily compromised and subject to abuse and thus the need for monitoring from a greater and more legitimately neutral party.32

Lastly, this literature is one of mimicry. This approach is grounded in a belief that nonstate governance elements acquire legitimacy as and to the extent they begin to mimic the legitimacy garnering forms of states.33 Equally evident are transitory notions—private governance is considered a step in the direction of fulfillment—the absorption of private governance within the bosom of the regulatory state.34 This idea is common both at the state level and at the international level. In the later context, the recently failed effort to secure an international ordering of multinational corporations is telling.35

It is in the context of mimicry that I will consider the issue of constitutionalization in governance without government.36 Of principal significance is the notion that constitutionalization of private legal orders is necessarily dependent on the state.37 These notions suggest the broader indictment of governance without government—that ultimately the project fails in the face of the state. But the result, especially in the context of economic bodies corporate can be ambiguous.38 It has been used both to suggest the dependence non-state governance organs on the state and its territorial dimension of governance/jurisdiction.39 But it has also been used to suggest the possibility of escape from the orbit of the state through a mimicry that effectively frees governance from the state and produces it sown conceptual territory.40

II. A Space for Governance Without Government, or Government Without the State.

But the issue under consideration is not one that depends on the reproduction of the state through proxies or agents.41 The question is whether it is possible to theorize governance without government, or better put government without the state. “More meaningful than the distinction between government and governance is that between state and government.”42 I argue that it is possible to suggest the contours of such systems, without the need to fall back on the state for either enforcement or legitimacy.43

I first examine the literature on private governance regimes, autonomous of the state.44 These focus on standard setting,45 especially private systems for the regulation of products,46 soft and law systems.47 The special case of lex mercatoria is briefly considered, as an ambiguous example either of a private system dependent on the state, or an independent system in which the state plays a role to the extent it is permitted.48 The issue of global governance without a state is also mentioned.49 Also considered is the importance of functional differentiation to the debate of governance without government, permitting, as Ralf Michaels suggests, a hybridization of governance, which moves from legal segmentation to aggregation drawing from and communicating with but autonomous of any of the national legal systems within which the governance community operates. 50

The issue of the importance of autonomy from the state, or even from international organizations is discussed. On the one hand, connection to the state suggests the dependence of these governance frameworks on the state, and thus suggests the absence of governance other than by consent and devolution. On the other hand, even autonomous systems must exist within a community of actors, including actor sin other systems. Governance without government might well suggest a context in which limited jurisdiction and functionally differentiated groups would, of necessity, always be in communication with other groups with which they either share governance space (over the same entities, within the same territory and the like) producing complex multi norm obligations on specific actors.51 Structural coupling, then, is both a necessary element of autonomy, yet also a possible indication, like intermeshing, of the loss of autonomy. Moreover, the autonomy of such systems ought not to be measured by the extent of contacts with states. Such contacts suggest interactions between systems as much as assertions of authority of one by the other. But structural coupling has apolitical dimension as well. It suggests a process of recognition that adds legitimacy to the enterprise of norm structures beyond territory. It has been argued that “this approach can be understood as a contemporary version of lex mercatoria . . . . The new constitutionalism is, in modern guise, this practice of powerful market participants developing a set of preferred regulations for their dealing, avoiding
political interference as much as possible and then gaining state endorsement to allow enforcement of their preferred understanding of property rights.”52

I suggest the characteristics of an emerging system of governance without government/government without a state by describing aspects of three systems of governance First I review internal systems of supply chain governance created by large multinational enterprises.53 Second I examine the emerging system of governance under the OECD’s Guidelines for Multinational Enterprises.54 Third I examine the implementation of the United Nations’ framework for the regulation of the human rights obligations of multinational corporations under the Protect/Respect/Enforce polycentric governance framework elaborated by John Ruggie, the United Nation’s Secretary General Special Representative.55

The contour of governance without government, or government without the state emerges more clearly from these movements toward autonomous regulation. With respect to the first, I focus on an examination of the rise of self referential governance communities focused on the regulation of the behaviors of multinational corporations and their suppliers.56 These are narrowly constructed functionally differentiated communities. Within them Multinational corporations operate substantially like the state, though a state without a territory. It responds to the desires of its citizens, investors and consumers, through the production of policy and behaviors designed to enhance shareholder value and consumer demand. Shareholder desires are also affected by a normative framework exogenous to the multinational, one memorialized in
binding and non-binding instruments of international and national law, as well as other normative standards, sometimes bound up in concepts of corporate social responsibility. These policies are effected within the entity and its supply chain through contract of a regulatory character. Compliance is enforced directly by the entity and also monitored by outsiders, principally civil society elements and to some more remote extent, the state and other public actors. The threat of state intervention is also a disciplinary force. Civil society actors gain legitimacy in their enforcement function through relationships with the media—an organ that is at once both a producer of similar norms within its own enterprise and a producer of “sanctioned” information. But civil society also competes with the corporate regulator in the construction of investor and consumer tastes, and sometimes participates with the corporate entity in the construction of its regulatory standards for its supply chain. Taken together, what is
produced is a complete governance framework operating beyond the territory of the state but also within a very narrow governance space.

With respect to the second, I suggest that a “spaceless” governance is being constructed through networks of soft law systems through complex partnerships between states, international organizations that serve them and global actors, and the global actors that form the core of the regulatory community.57 The clearest example is drawn form the recent work of the Organization for Economic Cooperation and Development’s National Contact Point system for the enforcement of global soft law frameworks that radiate out from the OECD’s Guidelines for Multinational Corporations.58 A set of recent decisions59 suggest both the autonomy of the governance enterprise, its relationship to “the state” yet independent from states, and integration of networks of soft law norms to construct a set of coherent governance standards for a functionally differentiated group of actors—focused on the corporation and its stakeholders. These frameworks draw their standards from multiple sources for the construction of an autonomous framework of governance that is made applicable to actors as a supplement to their obligations under the law-systems of states asserting territorial jurisdiction much like Ralf Michaels suggests for lex mercatoria.60

With respect to the third, I suggest that the Protect/Respect/Remedy framework emerging from the work of the U.S. Special Representative has all the earmarks of a governance system without a state, though in communion with states.61 Mr. Ruggie describes the two traditional approaches and their champions--"Human rights advocates favor binding standards imposed on companies directly under international law. Business traditionally has favored voluntary initiatives coupled with the identification of best practices and the development of management tools, arguing that the market itself will drive the process of change."62 Mr. Ruggie suggests both are inadequate. The rationale flows naturally from the presumption that states, like multinational enterprises, are subject BOTH to law systems and norm systems that exist in a complex set of entwined horizontal relationships. That leaves Mr. Ruggie in essentially new territory--one that rejects the monopoly of law systems within states and the conception of norm systems as non-binding.63 What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors.

The case of the multinational enterprise nicely contextualizes the ambiguity of the “governance without government/government without a state” discussion. Here the discussion favoring autonomy64 is contrasted with that of the prior section that suggests a necessary intermeshing between the multinational and the state.65 In addition, the multiple layers of governance are considered. Multinational corporations may construct their own internally coherent system of governance among its stakeholders and through its production chain, a system recognized as powerful by soft law frameworks.66 At the same time, the community of multinational corporations, as a functionally differentiated community, may construct a self referencing and autonomous regimes of governance, though very narrowly focused, which is free of substantial state interference, except as a foreign body with which relations must be maintained.67 It is in this sense, certainly, that the old foundational notions of territoriality, as the marker par excellence of jurisdiction, loses coherence.68 The territory of norm creation and enforcement within and among corporations can be conceived as bounded by the territory of the operations of that community. The extra-territorial is that which lies beyond the normative framework of corporate governance. But the prime referent is no longer geography. It is in that sense that one understands the receding of the state from governance.

The importance of polycentric governance is also emphasized. Functional differentiation suggests a limited framework of governance. Non-state governance systems have a limited range. It also suggests a simultaneous overlapping of governance. But at the same time, these are new and fragile systems. They are not fully developed. They may change. They have their sociology.69 But they suggest possibility in more than the form of the abstractions that provide more comfort to academics than the less elegantly articulated realities on the ground. That insight forms the basis of the review of insights proffered in the critical literature.70 The three examples, however, suggest that it is possible to see the construction of autonomous and self referential social-norm systems that exit out of the shadow of the territorially bound law-systems of states.71

At least within the context of the multinational corporation it is possible to speak of governance without government, where the latter term is meant to refer to the state. It is also possible to speak, to some extent, of government without a state as an element in the governance of multinational regulation. At the same time polycentric governance tends to obscure the reality of emerging autonomous governance.

III. Conclusion.

19th century anthropologists could state with some certainty that:

'It may be here premised that all forms of government are reducible to two general plans...The first, in the order of time, is founded upon persons, and upon relations purely personal, and may be distinguished as a society (societas)...The second is founded upon territory and upon property, and may be distinguished as a state (civitas)'72

Territory defined not only a governance space, but also the framework within with a subordinating political order could act, through law, to establish dominance over other forms of organization deemed secondary to it. Globalization has begun to undo these verities of the 19th and early 20th centuries. This short essay has argued that it is possible to speak not merely of governance without government, but also of government without a state. This governance framework poses no danger to the state in terms of its ability or interest in substituting itself for the state. But to serves as a supplement to state power. And, to some extent, displaces state power. But that may not be something o be feared. The range of displacement and supplementation represents, in a sense, a taking back of governance space lost to the state only recently, as the state moved more powerfully in the 20th century to claim a limitless sphere of action. But within the spheres of their organization and power, these communities serve as an autonomous, self-referential space where governance is possible without the state and government created for the effective governance of that community in accordance with its terms. That governance occupies shared space. The system exists only in a polycentric universe. And it communicates with and cooperates with other governance systems. Especially in the context of soft law frameworks there may be partnerships created in which the state provides an element. But understood as a unity, at least a few systems appear to begin to evidence the characteristics of governance units without government, and of government without a state.



END NOTES:

1 Compare A. JAMES GREGOR, THE IDEOLOGY OF FASCISM: THE RATIONALE OF TOTALITARIANISM (New York: The Free Press, 1969) with JÜRGEN HABERMAS, THE DIVIDED WEST (Polity Press, 2006) and FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY (Chicago: University of Chicago Press, 1960).. See, Larry Catá Backer, 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.

2 James N. Rosenau, Governance, order, and change in world politics, in GOVERNANCE WITHOUT GOVERNMENT: ORDER AND CHANGE IN WORLD POLITICS 1, 4 (James N. Rosenau & Ernst-Otto Czempiel eds., 1992)

3 R.A.W. Rhodes, The New Governance: Governing Without Government, 44 POLITICAL STUDIES 652-667 (1996).

4 See, THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE (Lester M. Salamon ed., 2001); Gráinne de Búrca & Joanne Scott, Introduction: New Governance, Law and Constitutionalism, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 1, 1-3 (Gráinne de Búrca & Joanne Scott eds., 2006); Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004).

5 B. Guy Peters and John Pierre, Governance without Government? Rethinking Public Administration. 8(2) JOURNAL OF PUBLIC ADMINISTRATION RESEARCH AND THEORY 223 (1998).

6 “The functional differentiation of society means that the largest social system is internally differentiated into a plurality of subsystems, which perform different functions for society as a whole. Among the more readily identifiable subsystems are: the economic system, the legal system, the system of science, the religious system - and also the political system. The second innovation with respect to the past is that these functional subsystems of society are rigorously autonomous. They continually reproduce themselves according to their own specialized language with a particular grammar and vocabulary.” Dieter Kerwer, Governance in a world society The perspective of systems theory, in OBSERVING INTERNATIONAL RELATIONS: NIKLAS LUHMANN AND WORLD POLITICS 196, 197-98 (Mathias Albert, Lena Hilkermeier, eds., New York: Routledge, 2004).

7 See, Ingo Venzke, International Bureaucracies from a Political Science Perspective – Agency, Authority and International Institutional Law, 9(11) GERMAN LAW JOURNAL 1401 (2008); Jan Klabbers, The Changing Image of International Organizations, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS 221 (Jean-Marc Coicaud & Veijo Heiskane eds., 2001).

8 See, Errol Meidinger, Beyond Westphalia: Competitive Legalization in Emerging Transnational Regulatory Systems, in LAW AND LEGALIZATION IN EMERGING TRANSNATIONAL RELATIONS 121 (Christian Brutsch & Dirk Lehmkuhl eds., 2007).

9 Gunther Teubner, The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination, in CONFLICT OF LAWS AND LAWS OF CONFLICT IN EUROPE AND BEYOND: PATTERNS OF SUPRANATIONAL AND TRANSNATIONAL JURIDIFICATION (Rainer Nickel, ed., Oxford: Hart, 2009).

10 Thus, it is not uncommon to “conceptualise the emerging field of European spatial policy discourse as an attempt to produce a new framework of spatialities - of regions within member states, transnational megaregions, and the EU as a spatial entity - which disrupts the traditional territorial order, and destabilises spatialities within European member states. The new transnational orientation creates new territories of control, expressed through the new transnational spatial vision of polycentricity and mobility.” OLE B. JENSEN AND TIM RICHARDSON, MAKING EUROPEAN SPACE: MOBILITY, POWER AND TERRITORIAL IDENTITY 44 (London Routledge, 2004).

11 Inger-Johanne Sand, Polycontextuality as an Alternative to Constitutionalism, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM (Christian Joerges, Inger-Johane Sand and Gunther Teubner, eds.) 41-65 (Oxford & Portland Oregon: Hart Publishing, 2004).

12 See discussion at Part I, infra.

13 Armin von Bogdandy, Philipp Dann, Matthias Goldmann, Developing The Publicness Of Public International Law: Towards A Legal Framework For Global Governance Activities, 9 GERMAN L.J. 1375 (2008); Cf. Orly Lobel, Big Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions, 39 CONN. L. REV. 1685 (2007).

14 Prierre Bourdieu, Homo Academicus, (French Edition--Les Éditions de Minuit, Paris, 1984; English Edition—Polity Press, 1990).

15 Cf. R. Harker, Education and Cultural Capital, in AN INTRODUCTION TO THE WORK OF PIERRE BOURDIEU: THE PRACTICE OF THEORY, (R. Harker, R., Mahar, C., & Wilkes, C., eds., London: Macmillan Press, 1990).

16 Cf. Pierre Bourdieu, STATE NOBILITY: ELITE SCHOOLS IN THE FIELD OF POWER (Polity Press, 1998).

17 The principle of Bundestreue has been construed to supply the underlying character and animating spirit of German federalism through which federalism provisions of the Basic Law must be interpreted. It has also been extended to the obligation of the federal government when it acts within the E.U. Nigel Foster and Satish Sule, GERMAN LEGAL SYSTEM AND LAWS 179 (3rd ed., 2002).

18 This is a concept which early found some room for if some quixotic expression in German political theory, especially that of the mature political theory of Johann Gottfried Herder. See FREDERICK C. BEISER, ENLIGHTENMENT, REVOLUTION, AND ROMANTICISM: THE GENESIS OF MODERN GERMAN POLITICAL THOUGHT, 1790-1800 210-214 (Cambridge, MA: Harvard University Press, 1992). I do not mean to use the phrase in support of volkish notions, bit rather to illustrate that ideas about emancipation from the state apparatus through voluntary and culturally differentiated associations has some history in the West as political thought.

19 Pierrick Le Goff, Global Law: A Legal Phenomenon Emerging From the Process of Globalization, 14 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 119 (2007).

20 Marc Amstutz, Global (Non-)Law: The Perspective Of Evolutionary Jurisprudence, 9 GERMAN L.J. 465 (2008).

21 Dinah Shelton, Law, Non-Law and the Problem of 'Soft Law,' in COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 13 (Dinah Shelton ed., 2000).

22 Ruti G. Teitel, Humanity’s Law: Rule of Law for the new Global Politics, 35 Cornell International Law Journal 355 (2002).

23 Eyal Benvenisti, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 STANFORD LAW REVIEW 595 (2007).

24 R.A.W. Rhodes, The Hollowing Out of the State, 65 POLITICAL QUARTERLY 138-51(1994).

25 Kenneth W. Abbott and Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming The Orchestration Deficit, 42 VAND. J. TRANSNAT'L L. 501 (2009) (arguing that “that states and IGOs can (positively) and should (normatively) more actively support and steer RSS schemes, embracing them as valuable components of the international regulatory system.” Id., at 511).

26 Reza Dibadj, Panglossian Transnationalism, 44 STANFORD JOURNAL OF INTERNATIONAL LAW 253 (2008); Joe W. (Chip) Pitts III, Business, Human Rights, & The Environment: The Role Of The Lawyer In CSR & Ethical Globalization, 26 BERKELEY J. INT'L L. 479, 485-89 (2008).

27 B.G. Peters, Managing the Hollow State, in MANAGING PUBLIC ORGANIZATIONS 46-57 (K. Eliassen and J. Kooiman, eds., London: Sage, 1993).

28 See, IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE 4 (1992).

29 Benedict Kingsbury et al., Foreword: Global Governance as Administration-- National and Transnational Approaches to Global Administrative Law, 68 L. & CONTEMP. PROB. 1 (2005).

30 Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997-98).

31 Larry Catá Backer, Monitor and Manage: MiFID and Power in the Regulation of EU Financial Markets, 27 YEARBOOK OF EUROPEAN LAW 349-386 (Oxford U. Press, 2008); Larry Catá Backer, The Duty to Monitor: Emerging Obligations of Outside Lawyers and Auditors to Detect and Report Corporate Wrongdoing Beyond the Federal Securities Laws, 77 ST. JOHN’S LAW REVIEW 919 (2003).

32 Kimberley D. Krawiec, Cosmetic Compliance and the Failure of Negotiated Governance, 81 WASH. U. L.Q. 487 (2003).

33 See, Dara O'Rourke, Outsourcing Regulation: Analyzing Nongovernmental Systems of Labor Standards and Monitoring, 31 POL'Y STUD. J. 1 (2003).

34 Sean D. Murphy, Taking Multinational Corporate Codes of Conduct to the Next Level, 43 COLUM. J. TRANSNAT'L L. 389 (2005); David A. Wirth, Compliance with Non-Binding Norms of Trade and Finance, in COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 330 (Dinah Shelton ed., 2000); Roberta Karmel, The Hardening of Soft Law in Securities Regulation, 34 BROOK. J. INT'L L. 883, 918-923 (2009).

35 From the perspectives of its proponents and authors, see David Weissbrodt & Muria Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AM. J. INT'L L. 901 (2003); David Weissbrodt, International Standard-Setting on the Human Rights Responsibilities of Businesses, 26 BERKELEY J. INT'L L. 373(2008).

36 Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM (Christian Joerges, Inger-Johane Sand and Gunther Teubner, eds.) 3-28 (Oxford & Portland Oregon: Hart Publishing, 2004)Christoph Engel, A Constitutional Framework for Private Governance, 5(3) German Law Journal 197 (2004).

37 Gunther Teubner, The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination, in CONFLICT OF LAWS AND LAWS OF CONFLICT IN EUROPE AND BEYOND: PATTERNS OF SUPRANATIONAL AND TRANSNATIONAL JURIDIFICATION (Rainer Nickel, ed., Oxford: Hart, 2009). For its domestic law version, see, e.g., STEPHEN BOTTOMLEY, THE CONSTITUTIONAL CORPORATION: RETHINKING CORPORATE GOVERNANCE (Burlington, VT: Ashgate, 2007).

38 Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT'L L. 999 (2004).

39 Gunther Teubner, The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination, in CONFLICT OF LAWS AND LAWS OF CONFLICT IN EUROPE AND BEYOND: PATTERNS OF SUPRANATIONAL AND TRANSNATIONAL JURIDIFICATION (Rainer Nickel, ed., Oxford: Hart, 2009).

40 Larry Catá Backer, Transnational Corporate Constitutionalism, Law at the End fo the Day, Sept. 21, 2009 http://lcbackerblog.blogspot.com/2009/09/transnational-corporate.html.

41 Steven Bernstein & Benjamin Cashore, Non-State Global Governance: Is Forest Certification a Legitimate Alternative to a Global Forest Convention?, in HARD CHOICES, SOFT LAW: VOLUNTARY STANDARDS IN GLOBAL TRADE, ENVIRONMENT AND SOCIAL GOVERNANCE 33 (John J. Kirton & Michael J. Trebilcock eds., 2004).

42 JOHN HOFFMAN, CITIZENSHIP BEYOND THE STATE 27 (London: Sage, 2004) (“The distinction between state and government is not only an empirical one for most of human history, but it challenges the Hobbesian argument—deeply rooted in conventional political culture—that without the state there can be no order.”” Id., at 26). See, LUCY P. MAIR, PRIMITIVE GOVERNMENT 14-16 (London: Penguin Books, 1962).

43 Errol Meidinger, Competitive Supragovernmental Regulation: How Could It Be Democratic?, 8 CHI. J. INT'L L. 513 (2008).

44 See, e.g., Paul Schiff Berman, International Law to Law and Globalization, 43 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 485 (2005).

45 See, Margaret M. Blair et al., The Roles of Standardization, Certification, and Assurance Services in Global Commerce 15-17 (Aug. 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1120503; Craig N. Murphy, The Functional Approach, Organization Theory, and Conflict Resolution, in NEW PERSPECTIVES ON INTERNATIONAL FUNCTIONALISM 84-104 (Lucian M. Ashworth and David Long, eds., Houndmills, Basingstoke: Macmillan Press Ltd., 1999); CRAIG M. MURPHY AND JOANNE YATES, ISP, THE INTERNATIONAL ORGANIZATION FOR STANDARDIZATION: GLOBAL GOVERNANCE THROUGH VOLUNTARY CONSENSUS (London: Routledge, 2009).

46 See, Rodney Bruce Hall & Thomas J. Biersteker, The Emergence of Private Authority in the International System, in THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE 3 (Rodney Bruce Hall & Thomas J. Biersteker eds., 2002); BENJAMIN CASHORE ET AL., GOVERNING THROUGH MARKETS: FOREST CERTIFICATION AND THE EMERGENCE OF NON-STATE AUTHORITY (2004).

47 Anna di Robilant, Genealogies of Soft Law, 54 AMERICAN JOURNAL OF COMPARATIVE LAW 499 (2006).

48 Nikitas E. Hatzimihail, The Many Lives—and Faces—of Lex Mercatoria: History as Genealogy in International Business Law, 71—SUM LAW & CONTEMP. PROBLEMS 169 (2008); Harold J. Berman and Felix J. Dasser, The ‘New? Law Merchant and the ‘Old’: Sources, Content, Legitimacy, in LEX MERCATORIA AND ARBITRATION 22 (Tom Carbonneau, ed., Transnational Juris Publications, 1990); Robert Cooter, Structural Adjudication and the New Law Merchant: A Model of Decentralized Law, 14 INT'L REV. L. & ECON. 215, 216- 17 (1994).

49 See, e.g., James N. Rosenau, Governance in the Twenty-First Century, 1(1) GLOBAL GOVERNANCE 13-43 (1995); Lawrence S. Finkelstein, What Is Global Governance?1(3) GLOBAL GOVERNANCE 367-72 (1995).

50 See Ralf Michaels, True Lex Mercatoria: Law Beyond the State, 14 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 447 (2007).

51 And thus the communicative and structural element of polycentricity, suggesting that geography is merely one sort of territory on which normative jurisdiction can be asserted and that the object of regulation can exist in multiple governance spaces. This is the essence of soft law systems. But it has ancient roots as well in the old public private divide that segregated religious citizenship and the obligations thereof—governance to a great extent—from that of the territorially bounded state. See John Locke, A Letter Concerning Toleration 1689 Available http://www.constitution.org/jl/tolerati.htm.

52 WILLIAM K. TABB, ECONOMIC GOVERNANCE IN THE AGE OF GLOBALIZATION 34 (New York: Columbia University Press, 2004) (see also id., at 155-58).

53 Tim Bartley, Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions, 113 AM. J. SOCIOL. 297 (2007); Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Law Making: Wal-Mart as Global Legislator, 39(4) UNIVERSITY OF CONNECTICUT LAW REVIEW 1739 (2007).

54 Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21 July 2008) And Global Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW 258 (2009).

55 John Gerard Ruggie, Business and Human Rights: The Evolving International Agenda, 101 AM. J. INT'L L. 819 (2007).

56 Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, 14 ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 499 (2008).

57 And thus seek to rebut the early conceptual critique: ("Soft law expresses a preference and not an obligation that states should act, or should refrain from acting, in a specified manner. The underlying assumption is that behavior, or forbearance from behavior, in accordance with this preference will be directly beneficial to states." JOSEPH GOLD, INTERPRETATION: THE IMF AND INTERNATIONAL LAW 301 (1996)).

58 OECD, Guidelines for Multinational Corporations (2000). These are in the process of being revised and a new more globally liberated version is expected in 2010.

59 Initial Assessment by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Survival International and Vedanta Resources plc, March 27, 2009 (available http://www.business-humanrights.org/Links/Repository/969215/jump ); Final Statement by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Complaint from Survival International against Vedanta Resources plc, 25 Sept. 2009, available http://www.businesshumanrights.org/Links/Repository/266990/jump; Statement By The United Kingdom National Contact Point (NCP) For OECD Guidelines For Multinational Enterprises (NCP): Das Air, available http://www.berr.gov.uk/files/file47346.doc; Final statement by the UK national contact point for the OECD guidelines for multinational enterprises: Afrimex (UK) Ltd, Available http://www.berr.gov.uk/files/file47555.doc.

60 See, supra.

61 Larry Catá Backer, On Challenges to Operationalizing a Transnational Frame. work for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009, available at
http://lcbackerblog.blogspot.com/2009/10/on-challenges-to-operationalizing.html.

62 John Ruggie, Opening remarks by UN Special Representative John Ruggie, October 5, 2009, at 4, available http://www.business-humanrights.org/Documents/Ruggie-speech-to-Geneva-consultation-Oct-2009.pdf.

63 “The “protect, respect and remedy” framework lays the foundations for generating the necessary means to advance the business and human rights agenda. It spells out differentiated yet complementary roles and responsibilities for states and companies, and it includes the element of remedy for when things go wrong. It is systemic in character, meaning that the component parts are intended to support and reinforce one another, creating a dynamic process of cumulative progress—one that does not foreclose additional longer-term meaningful measures.” Id., at 5.

64 Jean-Philippe Robe Multinational Enterprises: The Constitution of a Pluralistic Legal Order, in GLOBAL LAW WITHOUT A STATE, 45, 45-47, 52-56 (Gunther Teubner ed., 1997); Larry Catá Backer, The Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality, 41 TULSA LAW REVIEW 541 (2006).

65 Gunther Teubner, The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination, in CONFLICT OF LAWS AND LAWS OF CONFLICT IN EUROPE AND BEYOND: PATTERNS OF SUPRANATIONAL AND TRANSNATIONAL JURIDIFICATION (Rainer Nickel, ed., Oxford: Hart, 2009)

66 Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises (2000).

67 A. Claire Cutler, Private international regimes and interfirm cooperation, in EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE 23 (Rodney Bruce Hall and Thomas J. Biersteker, eds., Cambridge, Eng.: Cambridge University Press, 2002).

68 See Gefion Schuler, Effective Governance Through Decentralized Soft Implementation: The OECD Guidelines For Multinational Enterprises, 9 GERMAN LAW JOURNAL 1753 (2008).

69 Amitai Aviram, A Paradox of Spontaneous Formation: The Evolution of Private Legal Systems, 22 YALE L. & POL'Y REV. 1 (2004).

70 See, e.g., Martin Marcussen, OECD Governance Through Soft Law, in SOFT LAW IN GOVERNANCE AND REGULATION 103 (Ulrika Mörth, ed., 2004); David Weissbrodt, International Standard-Setting on the Human Rights Responsibilities of Businesses, 26 BERKELEY J. INT'L L. 373(2008); JOSEPH GOLD, INTERPRETATION: THE IMF AND INTERNATIONAL LAW (1996).

71 With an oblique reference ot social norm theory, here. See, e.g., Robert C. Ellickson, Law and Economics Discovers Social Norms, 27 J. LEGAL STUD. 537, 540 (1998); Lisa Bernstein, Opting Out of the Legal System, 21 J. LEGAL STUD. 115 (1992). Yet this is an approach that has been explicit in the construction of the norm-system at th heart of John Ruggie’s Protect/Respect/Remedy framework. Cf. John Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism and the Postwar Economic Order, 36(2) International Organization, 379-415 (Spring 1982).

72 LEWIS HENRY MORGAN, ANCIENT SOCIETY 6 (New York: Holt, 1877).

Disciplining Education

It has long been true that the control of educational institutions have been a principal site for the control of social, cultural and political norms within a society. Everyone, from John Dewey to Fidel Castro and John Paul II, has understood that education is less about the production and dissemination of knowledge than it is about the production of citizens fully (to the extent possible) assimilated to whatever objective is required of its "pupils." Even the disembodied "education" elaborated in the United States and other advances Western democracies grounded in pluralism and "sensitivity" are tightly drawn to particular objectives of cultural, social and political "teaching" for assimilation by rising cohorts of people expected to take their place within the social order without making a fuss. This disciplining is made more palatable, of course, by the elaboration of an ideology of education as somehow disembodied from the ideologies of society, culture, religion politics, etc. which is serves.

But this idea conflates three separate categories of activity. The first is the production of knowledge. The second is the education of pupils. The third is the operation of institutions where knowledge is produced and pupils educated. In the form of the university, the three ideas conflated has proven to be a formidable barrier to substantial control by the state sector on the one hand, or by the discipline of the market, on the other. For every effort by the state to assert control, the university asserts its role in the production of knowledge. For every effort to impose the discipline of the market with respect to education, the university asserts the paramount obligation to educate future productive citizens as tinged with public purpose. Yet it is as clear that education as institution, knowledge production, and knowledge dissemination is highly contextualized within the societies in which they are embedded and serve as a great tool of control. Educators play a key role in this contextual embedding that is hardly free of cultural, political, religious or other ideological restraints. Speaking of a special cadre of educators being inserted into the Cuban educational system, Fidel Castro noted:

Their current presence in schools and, in the not-so-distant future, in communities and workplaces, is enriching the system of attention to children, adolescents and young adults that has been drawn up in recent years within the Battle of Ideas which, for us, essentially translates into the patriotic strengthening of the people and concrete facts and realizations for the total transformation of our society.

Fidel Castro Ruz, Only Education Can Save Our Species, Greetings from Cuban President Fidel Castro to educators participating in Havana's 12th World Congress on Comparative Education, in the Year of the 45th Anniversary of the Triumph of the Revolution, Oct. 24, 2004. And, of course, education, as Mr. Castro suggests, is a great tool of ideological warfare and the preservation of the structures on which the structures of power and order are maintained.

But there is consensus on this point even in the developed states. It is just that the context of restraint is different. Especially in developed states, for example, universities are seen, in their institutional context, as a critical point in the production of useful labor for other economic, cultural and state sectors. In that role, both the production and dissemination of knowledge is supposed to be bent to the greater effort to produce these factors in the maintenance of those labor markets ior whose advancement and benefit university graduates are produced.

It is refreshing, then, to see the recent modest efforts of the Japanese governments to extend some of the discipline of the market to the university's mission to produce useful labor.

All universities likely will be required to provide prospective tertiary students with certain key statistics, such as dropout and employment rates, according to a draft plan for a review of university establishment standards drawn up by the Education, Science and Technology Ministry. On Thursday, the ministry submitted the draft to a university section meeting of the Central Council for Education, an advisory panel to the education minister, for deliberation.

The proposed changes aim to ensure students taking entrance exams receive key information about the national, public and private university of their choice. The draft lists 17 items of information across five fields that universities would be required to disclose.

The standards likely will be revised after the proposed changes are examined further this fiscal year.

The list is divided into five fields the ministry thinks universities should focus on to promote high educational standards: education, students, organization, economic framework and learning environment.

Information pertaining to students would include the dropout rate, which is an indicator of the difficulty of gaining the marks needed to proceed to the next year of study and how many students attend a university without a real intention of completing courses, such as those who failed to gain admittance to their first-choice university.

Universities May be Forced to Give Applicants Key Statistics, The Yomiuri Shimbun, Nov. 8, 2009.

Now THAT is a perversely ironic advance in the production of knowledge. . . . and control! See Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007.