Tuesday, November 30, 2010

Professor Melissa Tatum on Anita Blake's Vampire Hunter Series

Melissa L. Tatum is a Research Professor and the Associate Director of the Indigenous Peoples Law and Policy Program at the University of Arizona’s James E. Rogers College of Law. Much of her teaching and scholarship focuses on the intersection of minority groups, individual rights, and the criminal justice system. She is also the author of several short stories published by Yard Dog Press.

Professor Tatum has recently reviewed  Laurell K. Hamilton's Anita Blake: Vampire Hunter series, appearing for a short while publicly on the Internet at Melissa L. Tatum, Trying the System, in Ardeur:  14 Writers on the Anita Blake: Vampire Hunter Series (ed. Hamilton)(SmartPop 2010). The vampire is a particularly potent construct rich in symbolic value.    Her essay is worth a careful read, a version of which follows.

Trying the System
Melissa Tatum 
(Reviewing Laurell K. Hamilton's Anita Blake: Vampire Hunter Series)
In Anita Blake’s world, the monster lurking in the dark has emerged from the closet and become the monster who lives next door.  College students earn degrees in preternatural biology, cops must determine whether the corpse at their murder scene will come back to bite them (literally!), and EMTs must treat everything from humans to vampires to shifters to all sorts of other formerly mythical creatures.  And the criminal justice system struggles with how to handle beings with superhuman strength and abilities.  How do you incarcerate a vampire who can bend the bars of the cell and escape?  How do you impose pretrial detention on a vampire who can exert mind control powers on his jailer, compelling the jailer to open the cell and forget ever doing so?
Over the first dozen books in the Anita Blake series, the U.S. government wrestles with these issues, and while it laudably decided to make vampires legal citizens of the United States, it unfortunately decides to flagrantly violate approximately one-half of their constitutional rights by imbuing federal marshals with the legal authority to be vampire executioners.  No search warrants or arrest warrants for vampires; instead, courts issue warrants of execution, essentially creating a system where the sniper and the cop combine to create an assassin with a badge and give a whole new meaning to the phrase “execute the warrant.”
To fully understand what is happening in Anita’s universe, we must take a brief detour through the somewhat convoluted thicket of the criminal justice system. The American criminal justice system prides itself on being a model of fairness, a system founded on the bedrock principle that it is better for ten guilty men to go free than for one innocent person to be convicted.  The system achieves this goal by creating an elaborate set of procedural protections, and the most important of those procedures are articulated in the U.S. Constitution.  Twenty-five clauses in the first ten constitutional amendments address individual rights and create boundaries to prevent the government from overreaching.  Over half of these clauses, fourteen of the twenty-five to be exact, deal with the criminal justice system.  Clearly, the Founding Fathers thought it important to spend a significant portion of our primary governing document outlining the key working principles of the criminal justice system.
These principles govern everything from police investigations and interrogations and arrests to the trial and sentencing process.  They also provide endless fodder for books, movies, and television shows.  Americans are addicted to legal thrillers in every form, from John Grisham’s The Firm to the Law & Order franchise to Legally Blonde.  The legal process also provides a microcosm for books and movies and television shows to explore how society interacts with those who challenge its norms—think To Kill a Mockingbird, Minority Report, or X-Men.
In addition, these principles provide endless fodder for politicians and the media who seek to manipulate public reaction.  Every time the specter of Willie Horton is dragged into the spotlight, every time some media pundit pontificates about the killer who went free on a legal technicality, the public condemns the legal system for placing the rights of murderers above the rights of their victims. What the politicians and the media gloss over is that these principles are not legal technicalities; rather, they are rights. When our Founding Fathers wrote the U.S. Constitution, their purpose was to design a system that protected each person’s liberty by ensuring that the government must justify any decision to deprive a citizen of that most cherished right—freedom. The Declaration of Independence speaks of life, liberty, and the pursuit of happiness as the inalienable rights of all men; the Constitution proclaims that it intends “to secure the Blessings of Liberty to ourselves and our Posterity.”
At the same time, the Founding Fathers understood that it is part of human nature for the group to join together against those individuals who do not conform to group norms.  Humans naturally clump together in everything from high school cliques to the Kiwanis club.  And they have words, often negative, to describe those who don’t—nonconformist, loner, someone who marches to the beat of a different drum.  In recognition of these tendencies, the Founding Fathers created a criminal justice system that is a study in contrasts, a balance between group and individual rights. 
On the one hand, the entire purpose of the system is to protect society as a collective from the aberrant behavior of certain individuals: a criminal case is always the State v. or the People v. the individual defendant.  Every society establishes behavioral norms—rules that define what conduct is acceptable and what is not.  Not all “unacceptable” behavior is criminal; rather, each society must define for itself what behavior it will treat as “criminal,” as so unacceptable that individuals who violate those norms must be singled out for punitive sanctions.  It’s the difference between littering and wearing white shoes after Labor Day; they are both aesthetically displeasing, but only one is a crime.
On the other hand, the whole purpose of the criminal trial is to protect the individual from society.  Society can protect itself from aberrant behavior by imposing criminal sanctions on individuals, but only if it follows the proper procedures.  The United States is a system of checks and balances—three branches of government balancing each other and ensuring the Constitution is obeyed.  In the criminal justice system, the executive branch, through the police and the prosecutor’s office, investigates crime and instigates the process of seeking criminal sanctions.  Indeed, this division of labor is at the heart of the successful Law & Order television show, now in its record twentieth season.  Roughly the first half of each episode follows the police investigation, while the second half focuses on the prosecution. 
The police and prosecutors, however, are just two aspects of the system.  Presiding over both of them is the judicial branch, which, through the trial and appellate process, ensures that the police and prosecutors do not overstep their boundaries.  Much of the dramatic tension in the second half of Law & Order arises from the rulings of the judges.  Will the confession be suppressed?  Will the plea bargain be accepted?  Will the surprise witness be allowed?  In answering these questions, the judicial branch refers to and relies upon the Constitution, thereby administering a fair process that protects the individual rights of defendants. 
In Anita Blake’s world, the process has become skewed, at least with respect to vampires.  The role of the judicial branch is minimal; it exists only to review and issue warrants of execution.  Issuing a warrant is usually the beginning of the court’s involvement in a criminal case, not the beginning and the end.  With no trial and no jury, the role of the judicial branch is all but eliminated, leaving the mission of protecting the public from criminal vampires squarely and heavily on the shoulders of the executive branch.  Indeed, in Incubus Dreams, one cop challenges Anita’s actions, asking, “who made you judge, jury, and [executioner]?”  To which Anita replies, “the federal and state government.”
The decision to essentially eliminate the role of the judicial branch is deeply troubling, because in the American system, “guilty” and “deserving of punishment” are not necessarily the same thing.  A defendant may have “done the deed” but offers an acceptable excuse, such as self-defense.  While we don’t condone killing another human being, we also don’t believe you have to sacrifice yourself—it is okay to defend yourself, even if the result is that you kill your attacker.  Sorting out these types of claims is part of the judicial branch’s job.
 The American system also believes in tempering justice with mercy tailored to each defendant’s personal circumstances.   We may not accept a proffered excuse—like acting in the “heat of passion” or “temporary insanity”—as a reason to acquit, but it may be used to mitigate the punishment. While we don’t want to encourage people to kill adulterous spouses, we do understand that unexpectedly finding your husband in bed with your sister can cause a person to lose control in a manner that is not likely to happen again—especially if said husband is now six feet under.
These defenses are some of the ways the judicial branch keeps a careful watch on the rights of the defendant and reins in potentially overzealous prosecutors.  Our society has decided that why a person commits a crime is relevant to whether and how they will be punished.  But these defenses are not available to vampires accused of crimes in Anita Blake’s world.  The criminal justice system for vampires consists of a stake through the heart and maybe a separation of head from shoulders. (As Anita puts it in Incubus Dreams, “dead is at least half their brains spilled, and daylight through their chests.”)  The why behind their actions is irrelevant.
Examining motivation is only one purpose of the criminal trial. Another purpose, perhaps the primary purpose, is to put the prosecution’s evidence to the test—to put witnesses under oath when they provide testimony and to allow the defense to cross-examine witnesses and present its own evidence.  Anita recognizes and wrestles with her conscience on this issue in Incubus Dreams; to get a death warrant, “All we needed was proof, or, depending on the judge, strong suspicion.  Once I’d been okay with that.  Now, it bothered me.”  In fact, in Incubus Dreams Anita actually takes the time to investigate whether the warrant was issued for the correct vampire and, upon discovering it was not, locates and executes the guilty one instead.
In another scene from the same book, Anita explains to the reader why the law was changed to require more than one count of using vampire wiles to have sex before a death warrant could be issued: “Those of us in the middle just didn’t like the idea of a death warrant being issued on the say-so of one date who woke up the next morning with a bad case of buyer’s remorse.”  If warrants are being issued for the wrong vampire and other warrants rest solely on one person’s say-so, particularly a person with a motive to lie, the process is certainly flawed.
In short, most of the normal procedural protections have been tossed out the window for vampires. The process is clearly skewed.
However, a skewed process is not necessarily also an unconstitutional process.  Because vampires are citizens in Anita Blake’s world, they are entitled to the same due process and equal protection as all other citizens.  For a country founded on the rights of the individual, the United States’ history is full of instances where people were categorized by and punished for what they looked like, where they were from, or who they worshipped.  We enslaved African Americans, confined American Indians to reservations, incarcerated Japanese Americans, discriminated against Mexicans, and demonized Muslims.  In recognition of this basic human impulse, the Founding Fathers inscribed restrictions in the Constitution designed to limit the government’s ability to make and enforce laws based on group identity.  The government is allowed to make such laws—after all, the September 11 hijackers were all Middle Eastern—but those laws will be strictly scrutinized by the courts, who will require that the government present a compelling case to justify the legal discrimination. 
Thus, “due process” and “equal protection” do not mean that everyone must be treated the same.  At their most fundamental level, they mean the defendant must receive a fair hearing and any differences in treatment must be justified.  What constitutes a fair trial for the average defendant would not be a fair trial for a defendant that possesses superhuman strength and the psychic ability to influence witnesses and jurors.  What, then, constitutes a fair trial for a vampire?  How do we deal with the “different,” the “strange,” and the “uncontrollable”?
Although the rights enunciated in the Constitution can be a bit amorphous, they still serve as the touchstone or starting point for answering those questions.   In Anita Blake’s world, vampires are the “other,” the group that challenges the majority’s view of itself.  They are different and therefore feared and sometimes hated; vampires are almost literally the embodiment of the boogeyman, our childhood fear come to life.
And as with all minority groups, while one segment of the general populace argues for greater understanding, another segment argues that society must enact a slew of laws to protect itself.  We saw this in the aftermath of September 11 with the PATRIOT Act and with the cyclical tightening and loosening of immigration and border control laws.  Above all, the U.S. Constitution and its individual rights protections exist to control and moderate these impulses.  So did Anita’s federal government violate the Constitution in authorizing warrants of execution and deputizing vampire executioners?  Or do the differences between humans and vampires justify such radically different procedures for handling vampires accused of crimes?
In his Handbook of Federal Indian Law, Felix Cohen, a specialist in American Indian law, gives his opinion that:
Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

Substitute “vampire” for “Indian,” and you encapsulate the issue.  Granting legal citizenship to vampires means the rules apply to vampires the same as to all Americans.  It also means that the same restrictions apply to the government; the government may not violate the rights of vampires any more than it may violate the rights of any citizen.  To do otherwise, to create a second and distinct set of rules for vampires, demonstrates a lack of faith in the system and a lack of trust in the system’s ability to handle minority groups.
            While many people would likely argue that vampires are not “disadvantaged” in the traditional sense (in addition to being powerful and immortal, all but the youngest vampires inhabiting Anita’s universe possess some ability that might allow them to thwart or skew the criminal justice process), there is no doubt that vampires are a “disfavored” group.  One has only to look at Dolph’s reactions to his human son’s romantic relationship with a vampire to recognize that prejudice is alive and well in Anita’s world.  Dolph’s hatred is extreme, but his feelings are mirrored in varying degrees by other characters in the series—including, at least in the earlier books, Anita herself.
Anita Blake’s world is reeling from the revelation that vampires exist and is struggling to come to grips with what that means.  It is precisely in such times of crisis that the Constitution’s protections are the most valuable and the most necessary.  It is precisely in such situations that the Constitution’s protections ensure that our system remains fair and even-handed and does not become twisted by public fear and hysteria.  We can’t sacrifice the Constitution for expediency.  Only if there are no other ways of containing rogue vampires can we justify summary execution.
The critical question is whether the superhuman abilities possessed by vampires justify the government’s decision to eliminate the trial process for vampires.  While it is true that Anita Blake’s world still requires individualized warrants of execution for vampires, so some proof of wrongdoing must be presented, the government has sacrificed the defendant’s other rights on the altar of protecting society.  Vampire defendants have no ability to respond to the charges, to present witnesses in their own defense, to question the government’s witnesses, or to have a jury decide their guilt or innocence.        
Even a cursory review reveals a variety of other possible methods of handling vampires suspected of crimes, and while those alternate methods may ultimately prove unsuccessful, the government is morally and legally required to at least give them a try.  The police could create and recruit a special squad of vampire officers to handle cases involving vampires, or at least to capture those vampires accused of crimes.  The courts could recruit persons with special abilities to sense whether vampires are using their psychic abilities to unduly influence witnesses, jurors, the judge, or anyone else in the courtroom.  Perhaps some form of technology could be developed to disrupt the use of those abilities in the courtroom.  And those are just a start—clearly, many other options exist. 
Society certainly has the right to protect itself, but the federal licensure of vampire executioners is a stunning departure from the checks and balances that form the cornerstone of the American government.  And it is a stunning concentration of power in the hands of one individual, something history has taught us is a recipe for disaster.  Too much depends on the ethics and integrity of that one person, or at the very least the public’s perception of that person’s ethics and integrity.  It is not enough for a person to do right; they must be perceived as doing right. 
When Anita’s government created the special federal marshal position, it gave badges to all vampire executioners with sufficient years of experience and firearm skills.  That’s a problem. “For some of us it was more like giving a badge to a bunch of bounty hunters with license to kill,” explains Anita in Blood Noir.  Anita also discloses in Incubus Dreams that some of those newly minted federal marshals use their badge and the carte blanche provided by the death warrants to justify torture. 
Our democratic system ultimately rests on the public’s trust of those in power, a trust that the Constitution purchased by setting up a system premised on the idea that although individual segments of the government may be untrustworthy, the three branches possess sufficient checks and balances on each other to keep each separate branch on the straight and narrow.  In Anita’s words in The Harlequin, “When the police go bad, they aren’t the police anymore. . . . [They are] criminals”—and the Constitution expects them to be arrested and treated as such.   The Constitution’s regulations governing the criminal justice system are designed to keep the general public from losing faith in the police and the prosecutors.  Individual officers may go bad, but the police department and the district attorney’s office as collective entities will remain worthy of the public’s trust.
In The Harlequin, Malcolm confronts Anita about her decision in Incubus Dreams to carry out a warrant by invading his church and executing one of his parishioners. He makes the point that there are no warrants of execution for humans:          
             “The death penalty still exists, Malcolm.”
             “After a trial, and years of appeals, if you are human.”

             “What do you want from me, Malcolm?”
             “I want justice.”
             “The law isn’t about justice, Malcolm.  It’s about the law.”

An insightful, if disturbing, statement.  The foundation of the law, the Constitution, declares that the best method of achieving justice is to follow the procedures established in that document.  No law enacted in violation of those foundation principles, even one purporting to do justice, can truly be law.  No law enacted in violation of those foundation principles should be respected or followed.  Officials have a duty to ask whether the laws they are charged with enforcing are in compliance with the Constitution.  Even the military, the ultimate bastion of unquestioning obedience, requires its soldiers to recognize and refuse to follow an illegal order.  Ask Lieutenant William Calley about My Lai or Adolf Eichmann about the Holocaust; both learned that “just following orders” was not an acceptable defense.
Just following orders is also not an acceptable argument for Anita Blake, federally-licensed vampire executioner.  Every time Anita executes a warrant (and a thus a vampire), she violates the Constitution.  Without legal sanction, an execution is nothing more than murder.  The public’s faith in the government depends on the government complying with the Constitution and its individual rights protections.  The Constitution itself allows the government to tweak the rules, to adapt the contours of the Constitutional guarantees, but the government is not entitled to disregard them all together.  And that’s what Anita’s government did when it licensed vampire executioners.
Anita herself has a fundamental sense of right and wrong.  Indeed, much of the conflict in the series derives from Anita’s struggles with her own moral code, with the recognition not only that shades of gray exist, but that there may be many more of them than she is comfortable admitting.  But while Anita does rely on her own internal sense of justice, she also relies on the guiding hand of the law, and she takes refuge in the protections of the legal system.
Anita recognizes the dilemma licensed vampire executioners pose, even if she shies away from examining it too closely.  In The Harlequin, Anita gives us some insight into her discomfort:
I’d been grandfathered in like most of the vampire executioners. . . .  The idea was making us federal marshals was the quickest way to grant us the ability to cross state lines and to control us more.  Crossing state lines and having a badge was great; I wasn’t sure how controlled we were.

Anita is also clearly uncomfortable with the power placed in her hands:
             “I cleared Avery.  Legally, I didn’t have to.”

         “No, you could have shot him dead, found out your mistake later and suffered nothing under the law.

            “I did not write this law, Malcolm, I just carry it out.”. . . .

         “And that justifies slaughtering us?”

Anita doesn’t respond, but does reveal her internal struggle to the reader:
I was going to leave this argument alone because I’d begun to not like that part of my job. I didn’t think vampires were monsters anymore; it made killing them harder.  And it made executing them when they couldn’t fight back monstrous, with me as the monster.
            In a sense, a parallel exists between law enforcement efforts to capture and contain a serial killer and efforts to capture and contain vampires.  As with a serial killer, the consequences of failing to capture and contain a criminal vampire are extremely serious; indeed, people will die.  But the consequences of violating the Constitution are worse.  The system must remain intact.  To repeat Anita’s words, “The law isn’t about justice . . . it’s about the law.”  The U.S. Constitution is the supreme law of the land.  Tossing out the entire trial process for vampires accused of crimes is an effort to “do justice” at the expense of the law.  And that is exactly the type of “justice” the Constitution seeks to curtail. The Founding Fathers firmly believed that true justice is achieved only when the law prevails. They inscribed procedures in the Constitution as part of a deliberate attempt to check those who would act in the name of justice; the procedures reflect a deliberate lack of trust in the judgment of any one person.  Before a citizen can be deprived of his or her liberty, several people must pass judgment, and the defendant has a right to be heard and to refute the charges.  Vampires are legal citizens in Anita’s world, and killing one is the ultimate deprivation of liberty.  Summary executions, in the name of protecting society, are the ultimate violation of the Constitution, the bulwark standing between an accused and a mob of vigilantes.
The job of vampire executioner turns the entire U.S. criminal justice system on its head.  It tosses out law in an effort to replace it with justice and restricts the number of people who have a say in defining what constitutes justice.  It tries the system, finds it wanting, and abandons it altogether for vampires.  And the thought of a United States without its criminal justice system scares me.  Even more than vampires.

Sunday, November 21, 2010

The Public Official and the Sovereign Wealth Fund (SWF): Four Models of Public Governance in Search of Coherence--Presentation at the ENA Brasil Seminário International de Governança Pública

The French École National d'Administration has a long and well earned reputation as a professional training for civil servants in France and abroad at a variety of stages of their careers.   
Created by General de Gaulle in October 1945, the founding principles of the Ecole nationale d’administration are to broaden access to the highest executive levels of government service, and to provide professional training for senior civil servants.
Hence, the school’s principal responsibility is to recruit and train the men and women who will make public service a living institution and enable it to adapt to ever-changing times. At the same time, the school must pass on the ethics of government service to its graduates, based on the values of responsibility, political neutrality and selfless service. (École National d'Administration, Meet ENA, A School for Government Service).
ENA has been moving aggressively to stake out a global position as a conduit for French expertise in public administration and the training of civil servants.
ENA has developed very solid relations in Latin America:  
Brazil is a highly valued partner in the region: ENA took part in the celebrations of the Year of France in Brazil by organising a joint symposium on the theme of “The professionalism and the consolidation of the public service in a context of public policy reforms” with ENAP in Brasilia.  
The partnership with the State of Santa Catarina was strengthened by the creation in September 2009 of “ENA Brasil” and the starting of teaching missions carried out by French contributors.  (L'ENA,Accueil, International cooperation, The Americas,  Relations between ENA and the American continent).
Under the direction of its President, Rubens Araújo de Oliveira, ENA Brasil has been moving quickly to establish its reputation  as an important center for the training of public administrators for sub-national government actors.  
A ENA Brasil foi criada pelo Governo de Santa Catarina em junho de 2009, em convênio com a École Nationale d'Administration (l'ENA) da França, com os mesmos objetivos: formar gestores públicos comprometidos com altos padrões de eficiência da administração pública, por meio da educação continuada e da prestação de serviços e intercâmbios com instituições nacionais e internacionais. (/ENA Brasil, O que é a ENA Brasil? (ENA was created by the government of the state of Santa Caterinain June 2009,  by agreement with ENA France with the same objectives as ENA France: to train public managers committed to high standards of efficiency in public administration through continuing education and the provision of services and exchanges with national and international institutions.)).

As part of its celebrations of its first year of operation, ENA Brasil sponsored a conference held 17-19 November 2010 at its campus in Florianopolis, Santa Caterina, Brasil:  Seminário International de Governança Pública.  The conference  program is set out below.

14h - Rubens Araújo de Oliveira (Brasil) Doutor em Ciências Econômicas - Universidad de Alcala Del Henares. Professor da ESAG/UDESC. Presidente da ENA Brasil.

14h e 30min - Rethinking Public Policy and Civic Engagement in a time of economic crises
Curtis Ventriss (EUA) Ph.D. University of Southern California, School of Policy, Planning, and Development. Foi Consultor do Departamento de Desenvolvimento Econômico do Estado de Vermont. É Professor de Políticas Públicas na University of Vermont, tendo ministrado cursos nas universidades de Oxford, John Hopkins e Southern California.

15h e 30min - Coffee brake

16h - Responsabilidade cívica e governança moderna
George Candler (EUA) Ph.D. in Public Policy, Indiana University, School of Public and Environmental Affairs. Professor da University of North Florida.

17h - O Tratado de Lisboa: a resposta adequada aos desafios da globalização?
Manuel Carlos Lopes Porto (Portugal) Doutor em Ciências Juridico Económicas pela Universidade de Coimbra. Professor de da Faculdade de Direito da Universidade de Coimbra. Presidente da European Community Studies Association. Foi Deputado do Parlamento Europeu e membro da Comissão de Reforma Fiscal portuguesa.

15h - Mentalidade burocrática nas organizações públicas
Leonardo Secchi (Brasil) Doutor em Estudos Políticos pela Universidade de Milão. Professor do Departamento de Administração Pública da ESAG/UDESC)
Lançamento de livro: Políticas Públicas: conceitos, esquemas de análise, casos práticos
Editora: Cengage Learning

16h - Coffee brake

16h 30min - Sustentabilidade ambiental
José Rubens Morato Leite - (Brasil) Doutor em Direito Ambiental pela UFSC. Pós-doutor pelo Centre of Environmental Law da Macquarie University - Austrália. Consultor da IUCN. Professor de Direito Ambiental na Universidade Federal de Santa Catarina.

17h 30min – Atualidade da governança pública na França, relações financeiras entre poder central e autoridades locais
Ronan Kerrest - (França) Diretor geral adjunto (finanças) da prefeitura de Villepinte, Mestre em Geografia Urbana pela Universidade de Paris I. Foi Vice-Presidente do Conselho Geral de Seine-Saint-Denis, Prefeito Adjunto da Ilha Saint-Denis e membro do Conselho Superior de Educação

14h - Dos modelos de intervenciones públicas en sectores y mercados privados - las intervenciones de Noruega y China a través de sus fondos de inversiones soberanos
Larry Catá Backer (EUA) Juris Doctor pela Universidade de Columbia (NY). M.P.P. pela Universidade de Harvard. Membro do Instituto Europeu de Governança Corporativa. Professor da Penn State University.

15h - Coffee brake

15h e 30min - Sustentabilidade financeira na União Europeia
José Casalta Nabais (Portugal) Doutor em Ciências Juridico-Políticas. Professor da Faculdade de Direito da Universidade de Coimbra. Membro do Conselho Superior dos Tribunais Administrativos e Fiscais.

16h e 30min - Novas tendências em controle de gastos públicos – a experiência do tce/sc
Salomão Ribas Junior (Brasil) Conselheiro e ex-Presidente do TCE/SC. Foi deputado estadual e Presidente da Comissão de Sistematização da Assembléia Estadual Constituinte.

My paper presentation begins an exploration of what emerging models of sovereign wealth fund administration can tell us about changing cultures of public administration under regimes of globalization. The English language version of the paper, "The Public Official and the Sovereign Wealth Fund (SWF): Four Models of Public Governance in Search of Coherence" will be available soon. I have set out below a summary of of my presentation notes.

The Public Official and the Sovereign Wealth Fund (SWF): Four Models of Public Governance in Search of Coherence

Larry Catá Backer

I. Thesis:
Sovereign Wealth Funds are symptomatic of the rise of four important and significantly different models of cultures of public governance and its administration:

(a) private sector actor model
(b) legal-juridical—law/rule based model
(b) public policy/private execution model-- public officials coordinating public and private sectors
( c) political actor model —public sector privileged in private sector .

These models provide a useful window for understanding the ways in which emerging and fundamentally distinct framework assumptions about the nature of the state shape also shape the formation of assumptions about the appropriate role of public officials within states.

II: The Problem and its Context

A. Starting Point: Globalization
1. Free movement of capital
2. Borders become more porous but are not eliminated (freest movement of capital, services, enterprises and goods, but limited movement of people)
3. Economic markets populated by non-state actors are privileged
4. State role as regulator emphasized
5. Markets and actors become transnational
6. State regulation becomes commodified, a factor in the production of capital considered by enterprises in decisions about allocation of assets and operations.

B. The State in Markets: what happens to states when markets leak beyond territorial limits.
1. Regulatory role emphasized.
2. Participatory role limited to control of factors of production (capital, labor and consumption) within national territory.
     --Soviet economic model
     --Socialism "light" in post 1945 Europe
     --Fascist state corporatism
But nature of this role is contested:
     --Europe: private activities do not lose public character
     --U.S.: private activities by states can be undertaken without reference to public obligations of states
3. Limited participation in foreign markets
      --markets for capital (sovereign lending)
      --state intervention to protect currency
      --state intervention to adjust balance of payments asymmetries
     --conservative investment of funds in the currencies and debts of foreign states

C. The State in globalized Markets: possibilities for states seeking to participate in markets abroad.
1. With globalization of economic activity it is possible for non-state actors to organize their production to maximize aggregate wealth.
     --result permits the projection economic power well beyond the national borders of the states in which they are created and to
     --state regulation less effective on aggregate corporate operations; the largest and most operationally flexible corporations can effectively become self regulating.
2. Can states mimic the largest private corporations when it seeks to organize its economic activities beyond its borders? Rather than use its funds traditionally to invest in state activities or in foreign currencies or debt, states can also invest directly in private markets.
3. These market interventions challenge the role of the state, reflecting a consequence of globalization—the conflation of public and private functions of state (and also non-state) actors.

D. The role of the state as a transnational public or private actor becomes contested
     -- as a substitute for regulation, or
     --as a way to maximize national wealth or
     --as a means of projecting public power abroad through private markets for political goals.

E. In particular, state participation in transnational or foreign private markets and in the economic activity of other states directly changes the character of (1) the state, (2) of private markets and (3) of the character and role of public officials.
1. I have explored the first and second elements elsewhere.
2. I will focus on the third element, suggesting that the form of state participation in private markets through SWFs is critical to the development of distinct forms of public management culture.

III. Sovereign Wealth Funds as Systematized Institutions of Private Market Interventions
A. History
1. 1950s Kuwait financially insignificantly vehicle for management of quasi public wealth.
2. 1990s on—potent force for global activities of states and equally potent reaction in the form of calls for regulation and control.

B. Reaction among host states—shaping the universe of efforts to regulate.
1. Fear of protectionism at local level. If host states treat states differently from non-state actors in connection with market activities.
     --US; Europe, limited success in increasing regulatory intervention in activities of sovereigns investing in markets.
2. Failure of hard law at international level.
3. Soft Law approaches
     --Santiago Principles. Embrace of model of idealized private actor and “best practices” as basis for avoidance of host state protectionist legislation.

C. Four generalized “types” of Sovereign Wealth Fund, similarities and differences. Four distinct approaches to instituting Santiago Principles.
1. Singapore: state corporatism through a private enterprise model.
2. Norway: state corporatism through a normative juridical model operated with the objective of advancing a set of global and national law norms invoking the mechanics of the conventional profit making enterprise for that purpose.
3. China: state enterprise operated with the objective of advancing state political policy through private enterprises. Conventionally private profit oriented enterprises directed in specific areas of operation by state policy needs and goals. Sovereign wealth fund as a state directed conglomerate controlling external investment and internal funding of outbound investment.
4. Brazil: division of government, least autonomous and most traditionally public in character. Provides greater flexibility for government to meet its fiscal obligations in a form that is most closely integrated with public and sovereign operations of the state. SWF is more of a sovereign “debt” fund (“just a mechanism to shift around imaginary fiscal surpluses, which also only exist in the questionable way the so-called primary surplus target is calculated, since the country runs a nominal deficit of 3.3% of GDP” Tony Volpon, The rising BRL: Brazil’s sovereign debt, sorry, wealth fund to the rescue, Financial Times, 9-21-2010)

IV. SWF Models and Models of Public Governance and Administration Culture.
A. Singapore—implementation of non-state actor administration ideal
1. Santiago Principles Model: stricter division between public and private functions of the state.
2. Public administration separate from private administration of SWF.
3. Preserve traditional division between public and private spheres.
4. For the public administrator, the economic activities of the state remains the province of private sector specialists.

B. Norway—law/juridicalized model.
1. A public law model for private law activity.
2. The SWF is viewed as embedded in a global system of law that is at the center of its public and private sector activities.
3. The state has a positive obligation to enforce that law in its own actions and in the behavior of other states as well as private parties.
4. Economic activity privileges law and legality in both investment decisions and in the interaction of the SWF to its investments. Economic activities serve the objectives of the law-state.

C. China—integrating state and economy under the leadership of the Party.
1. The state is understood as the institution through which political and economic activity are harmonized.
2. State activity is undifferentiated between state and non-state sector activities.
3. Both public and private activities are meant to serve the greater objective of a coordinated effort for overall objectives.
4. Legal rules are meant to serve this objective; economic decisions are meant to serve the fundamental policy objectives of the state.

D. Brazil—political model; reclaiming the public element of non-state sector activity.
1. Economic activity is meant to serve political ends.
2. SWFs are understood as the opportunity to expand the range of traditional state practices in the protection of its economic position.
3. The view is internal. The objective is not so much to affect the world outside as to preserve the internal position of the state.
4. A political tool in which law and economics are tools. SWF given authority to invest in foreign currencies, for example.

V. Consequences for public governance.

A. The public administrator as bureaucrat.
1. Traditional role as regulator within conventional understanding of the role of state bureaucracies; state and non-state roles understood as distinct.

B. The public administrator as lawyer.
1. Traditional role bent to serve the object of law and legal rules.
2. Political and economic activity is grounded in the primacy of legal rules.
3. They limit the substantive and procedural scope of the operation of both state sector and non-state sector activities.
4. Process is emphasized along with the use of state to further legal integration.

C. The public administrator as coordinating political economist.
1. Traditional role bent to economic political economy.
2. The administrator serves as coordinator.
3. Private sector activity is directed in the service of the objectives assigned to it by the state.
4. State conceived as a space in which public and private activity is coordinated and the role of the highest level state officials to to manage this coordination.

D. The public administrator as politician.
1. Public function of the state is given primacy. Economic activity bent to internal political objective.
2. Public administrator serves the political classes
3. Object is to protect the state in the traditional sense.

The PowerPoint slides of my Portuguese language version, O funcionário público e o Fundo de Investimento Soberanos (SWF): Quatro modelos de governança pública em busca de coerência, can be accessed here

I have included a rough Spanish language synopsis as well:

El Funcionario Público y el Fondo de Inversión Soberana: Cuatro modelos de gobernanza pública en busca de coherencia

I. Tesis:

Fondos de Inversiones Soberanos son sintomáticos de la subida de cuatro importantes y significativamente diferentes culturas de gobernanza pública y su administración:

(A) modelo de actor del sector privado, separación entre modalidades de los sectores públicos y privados.
(B) modelo jurídico (estado de derecho)
(B) modelo coordinador público-privado--funcionarios públicos coordinando los sectores público y privado, onjectivos públicos metodos privados
(C) modelo deactor del sector político—modalidades públicos privilegiados en los esfiuerzos en el sector privado.

Estos modelos ofrecen una perspectiva útil para la comprensión de los supuestos emergentes acerca (1) del carácter del Estado y (2) el papel apropiado de los funcionarios públicos en los estados.

II: El problema y su contexto

A. Punto de partida: la globalización
1. Libre circulación de capitales
2. Fronteras nacionales se vuelven más porosos, pero no se eliminan
3. mercados económico poblado por actores no-estatales es la forma de actividades comercialñes mas priviliegiado
4. Émfasis en la función reguladora del Estado
5. Mercados y actores se convierten en transnacionales
6. La regulación estatal se convierte en mercancía, un factor en la producción de capital.

B. El Estado en los mercados
1. Función regulador
2. Función participativo, objectivos estatales limitados al control de los factores de producción (capital, trabajo y consumo) en el territorio nacional.
---modelo económico soviético
---El socialismo “democrático” estilo común en Europa entre 1945 y 1990
---Fascismo corporativo estatal
3. Limitada participación en los mercados extranjeros
- Los mercados de capital (préstamos soberanos)
- La intervención del Estado para proteger la moneda
- La intervención del Estado para ajustar el balance de las asimetrías de los pagos
- La inversión conservadora de los fondos en las monedas y deudas de los estados extranjeros

C. El Estado en los mercados globalizados
1. Con la globalización de la actividad económica es posible para los actores no estatales para organizar su producción para maximizar la riqueza total.
- Resultado permite la proyección de poder económico más allá de las fronteras nacionales de los estados en los que se crean y
- Regulación estatal menos eficaz en las operaciones de agregados, las empresas, en el límite se autorregula.
2. El estado también puede organizar sus actividades económicas más allá de sus fronteras. En lugar de utilizar sus fondos tradicionalmente para invertir en las actividades del Estado o de la deuda externa ort monedas, los estados también pueden invertir directamente en los mercados privados.
3. Estas intervenciones de en el mercado amenaza la estabilidad del Estado, que refleja una consecuencia de la globalización-la fusión de las funciones públicas y privadas de actiores estatales (y no-estatales).

D. En consequencia há discordância sobre el carácter del Estado y su función como un actor transnacional pública o privada
- Como sustituto de la regulación, o
- Como una manera de maximizar la riqueza nacional o
- Como un medio para proyectar el poder público en el extranjero a través de los mercados privados para fines políticos.

E. En particular, la participación estatal en los mercados privados transnacionales o extranjeros y en la actividad económica de otros estados directamente fuerza un cambio fuerte en su potencia en el carácter de (1) el estado, (2) de los mercados privados y (3) el carácter y el papel de los funcionarios públicos .
1. Me centraré en el tercer elemento, lo que sugiere que la forma de participación del Estado en los mercados privados a través de los fondos soberanos es fundamental para el desarrollo de distintas formas de cultura de gestión pública.
2. Para mejor apreciar estos cambios consideramos el desarrollo de SWFs.

III. Fondos Soberanos de Inversión en Instituciones Sistematizado de intervenciones en el mercado privado

A. Historia
1. De Kuwait hasta los 1990s—pequeños y jugete de príncipes y paises en desarrollo.
2. Desde os 1990s—crecimiento y reacción. Fuerza potente en mercados estanjerors y objectivo de regulación.

B. Medidas para regular
1. El miedo del proteccionismo si los estados de acogida de manera diferente el tratamiento de estados de los actores no estatales en relación con las actividades de mercado.
- Estados Unidos, Europa, proteccionismo militado por la necesidad de inversiones de otros paises.
2. El fracaso de esfuerzos para la imposición de reglamento
3. Soft Law enfoques
- Principios de Santiago. Imposisión de un modelo fundado en la articulación de un accionista privado idealizado.

C. Cuatro generalizado "tipos" de Sovereign Wealth Fund, similitudes y diferencias.
1. Singapur
--corporatismo estatal realizado en forma de modelo de organisación empresarial privado.
2. Noruega
-banco central, ministerio de finanzas, objectivo privado efectuado por instituciones públicas.
-comisión de ética, imponiendo sistema de conducta fundado en sustemas de derecho internacional. Estado vehículo de distemas de derecho implementado por medidios de mercados privados.
3. China
-estado, partido comunista, empresas.
-objectivos politicos. Métodos privados. El estado impone dirección de inversiones. Coordinación con SWFs y empresas estatales
-dirección es para el control de producción afuera.
4. Brasil
-fundado para servir como parte del sistems financiero del estado.
-dirección interna, el SWF otra parte de sustem gobermental para la protección del gobierno y lo fiscal.

IV. SWF Modelos y Modelos de Gobernanza Pública y Cultura de la Administración.
Cada sistema de SWF requiere un distinto tipo de administración pública. Estas distinctas culturas de administración son necesarios para the efectuación del SWF.

A. Malasia: el modelo del estado comop idealizando actor no- gobermental
1. Aplicación de los Principios de Santiago Modelo: estricta división entre las funciones públicas y privadas del estado.
2. Pública separada de la administración privada de SWF administración.
3. Preservar tradicional división entre las esferas pública y privada.
4. Para el administrador público, las actividades económicas del Estado sigue siendo la provincia de especialistas del sector privado.

B. Noruega –modelo derechista-juridico.
1. Un modelo de derecho público para la actividad de derecho privado.
2. El SWF se considera parte integra de un sistema de derechos y normas sglobal de la ley que está en el centro de sus actividades del sector público y privado.
3. Bajo las normas fundamentales de este sistema, el Estado tiene la obligación positiva de hacer cumplir esa ley en sus propias acciones y en el comportamiento de otros estados, así como los particulares.
4. La actividad económica privilegia la ley y la legalidad, tanto en las decisiones de inversión y en la interacción de los SWF a sus inversiones. Las actividades económicas se usan al servicio de los objetivos de la ley del estado.

C. China y la integración de estado y la economía bajo la dirección del Partido.
1. El Estado se entiende como institución a través del cual se armonizan la actividad política y económica.
2. actividad del Estado es indiferenciado entre las actividades del Estado y el sector no estatal.
3. Tanto las actividades públicas y privadas se ha creado para servir al objetivo mayor de un esfuerzo coordinado de los objetivos generales.
4. Las normas jurídicas tienen el propósito de servir a este objetivo, las decisiones económicas están destinadas a servir a los objetivos de la política fundamental del Estado.

D. Brasil- modelo político; recuperar el elemento público de la actividad del sector no estatal.
1. La actividad económica está destinada a servir a fines políticos.
2. Los fondos soberanos se entiende como la oportunidad de ampliar la gama de prácticas tradicionales del Estado en la protección de su posición económica.
3. La vista del sistema es primariamente interno. El objetivo no es tanto influir en el mundo exterior como para preservar la posición interna del Estado.
4. Un instrumento político en que el derecho y la economía son herramientas.

V. Consecuencias para la gestión pública.

A. El administrador público como burócrata.
1. papel tradicional como regulador dentro de la comprensión convencional de la función de las burocracias estatales, el estado y las funciones no estatales entendido como algo distinto.

B. El administrador público como abogado.
1. doblada papel tradicional de servir el objeto de las normas de la ley y legales.
2. La actividad política y económica se basa en la primacía de las normas jurídicas.
3. Que limitan el alcance sustantivo y de procedimiento de la operación del sector estatal como en las actividades no estatales del sector.
4. Proceso se acentúa con el uso del estado para la integración legales.

C. El administrador público como empresario público.
1. Modalidades de cultural administrativa pública modificado , administración pública fundado en objectivioos políticos y metodos privados.

2. El administrador actúa como coordinador.
3. Actividades del sector privado se dirige al servicio de los objetivos que le asigna el Estado.
4. Estado concebido como un espacio en el que se coordina la actividad pública y privada y el papel de los más altos funcionarios a nivel estatal para gestionar esta coordinación.

D. El administrador público como político.
1. función pública del Estado se da primacía. Inclinó la actividad económica con el objetivo político interno.
2. administrador público sirve a la clase política
3. Por objeto la protección del Estado en el sentido tradicional.

Saturday, November 20, 2010

National Day of Black Consciousness in Brazil

Today many civil society elements will be celebrating November 20th as the National Day of Black Consciousness in Brazil.   I happened to watch the street celebration of the event in Florianopolis, a city in the South of Brazil.  

This celebration, like those in the Caribbean, are built around historical figures that have come to symbolize resistance to subordination.  In the Caribbean, the Taíno Indian Hatuey has become a symbol of both indigenous resistance to European colonization, of resistance to religious chauvinism and of resistance to national subordination.  See, Larry Catá Backer,  From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples (March, 27 2009). American Indian Law Review, Vol. 33, 2009. 

Afro-Brazilians celebrate Zumbi dos Palmares, who died resisting slavery in 1695. Under the banner "Valeu, Zumbi" Afro Brazilians marched in the streets of several cities.  Zumbi, they relate, dedicated his life to the fight against slavery, racism and discrimination ("Dedicou sua vida a la luta contra a escravidão, o racismo, o preconceito e a discriminação." 20 de novembro, Dia Nacional da Consciencia Negra, leaflet, Nov. 20, 2010). Zumbi was the last of the leaders of the great fugitive slave city of Quilombo dos Palmares.  Isolated from the rest of Brazil, it remained a refuge for fugitive slaves, Indians and some Europeans for almost all of the 17th century.   An interesting discussion of the Palmares Quilombro can be found at Aline Viera de Carvalho, Archeological Perspective of Palmares:  A Maroon Settlement in 17th Century Brazil, The African Diaspora Archeology Network (March 2007); Robert Nelson Anderson, "The Quilombo of Palmares: A New Overview of a Maroon State in Seventeenth Century Brazil," Journal of Latin American Studies 28:545-566 (1996) (Zumbi in the historical context of the leadership of the fugitive slave community).    

As in the Caribbean, Zumbi incorporates the symbolic embodiment of difference and resistance in the service of integration within a society that is both singular and differentiated.  Its power is in the patterns of its symbolic history--subordination, resistance, the possibility of success, betrayal, martyrdom, and the transformation of the hero (Zumbi) from person to idea.  Like Hatuey in the Caribbean, Zumbi has become the site for a complex of ideas about the organization of social and political power within a society organized once on principles of formal subordination, now rejected as incompatible with its political values.  Zumbi becomes a symbol of nationality beyond race, yet conscious of race.  Zumbi becomes the idea under which a large number of civil society elements might coordinate somewhat disparate aims into something more unified.  But the movement from symbol to practice, from ideal to social values consensus is a slow and difficult.  The realization of this complex interplay between sameness and difference will to some extent determine the success of Brazil's ability to embrace its economic and social potential.  

Sunday, November 14, 2010

Avoiding Corporate Complicity in the Human Rights Violations of States--Microsoft and Software Licensing

Traditionally, the conventional wisdom centered the regulatory function in states, and the form of governance in "law" understood narrowly as the product of legitimately constituted legislatures or delegated to legitimately constituted regulatory agencies, to the extent the "law" so enacted fell within the delegated authority vested in such entities.  At the apex of this cluster of governance institutions was "the state"--a construct conflating a territorial and its political system with the institutional apparatus (usually but not always a "government") constituted to exercise political power within the territorial limits of the state.  Increasingly, however, states have sought to move beyond the conventional forms of the exercise of its power.  States now govern beyond the traditional parameters of "law"--focusing on the techniques of managing behavior once reserved to non-state actors:, especially religious organizations, corporations, and social or economic communities  non-binding principles. systems of disclosure, information gathering, observation, recording and surveillance.  These are used to monitor, judge and control subject populations to ensure appropriate behavior by means of a control of the environment in which human activity occurs, rather than by the traditional use of command.  See, e.g., Larry Catá Backer,  Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley (August 25, 2010). Law Review of Michigan State University-Detroit College of Law, 2004.

One of the reasons for this movement away from law to management was the availability of technologies of control previously unavailable.  The ability to monitor individual and communal action has become much more extensive and less costly.  Another reason was the loss of the power of states to affect behavior in the traditional way.  Law and regulation become less meaningful when the extent of the power to control is smaller than the territory within which the objects of control operate.   The process of opening borders to facilitate the increasingly free movement of capital, services and enterprises (and less so for labor) conventionally understood as economic globalization has forced states to seek control through those techniques traditionally the province of non-state actors.  States  control within their territories  through "law" to be sure.  But especially  with respect to those movable components of economic activity, states increasingly use the techniques of the corporation or the church as a means of managing behavior and controlling  those who occupy space within its borders.

Yet this move toward governance through the techniques of non-state actors is significant for a more important reason. It has exposed exposed a functional reality that academics and states had ignored--that non-state actors govern, noth through law and the institutions of states but through their own governance systems.  Understood as "soft" law from the perspective of the state,these assumed a more compelling character within the "social" space within which these actors operated. See, e.g., Larry Catá Backer, Corporate Social Responsibility and Voluntary Codes: Apple, its Stakeholders, and its Chinese Laborers, Law at the End of the Day, June 16, 2006. More importantly, non-state actors govern using the very techniques now at the heart of the governance efforts of states.  These governance frameworks, like those of states, can be understood, in their most well developed forms, as self-referential constructs with its own constitution, rules derived from its governing framework, an institutional framework for the organization of the governance unit and effective means for the interpretation of these rules and their enforcement through mechanisms of dispute resolution.   See, Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007.

Most important, the recognition of the existence and power of these autonomous systems of governance founded on the values and  objectives of these functionally differentiated communities has found its way back into important efforts to organize  important aspect of transnational governance.  Of greatest significance has been those of the United Nation's Secretary General's Special Representative for Business and Human Rights, John Ruggie, and his critical role in the development of the U.N. Framework for the governance of business and human rights, the "Protect, Respect and Remedy Framework"--described as "a framework that clarified the relevant actors’ responsibilities, and
provided the foundation on which thinking and action could build over time."  The U.N. "Protect Respect, Remedy" Framework for Business and Human Rights (Sept. 2010).

In June 2008, after three years of extensive research and consultations with governments, business and civil society on five continents, the Special Representative concluded that one reason cumulative progress in the business and human rights area had been difficult to achieve was the lack of an authoritative focal point around which actors’ expectations could converge—a framework that clarified the relevant actors’ responsibilities, and provided the foundation on which thinking and action could build over time.
The Special Representative presented such a framework to the Human Rights Council in June 2008. The “Protect, Respect and Remedy” Framework rests on three pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and greater access by victims to effective remedy, both judicial and non-judicial.  The U.N. "Protect Respect, Remedy" Framework for Business and Human Rights (Sept. 2010).
The foundation of the Second Pillar corporate responsibility to respect human rights is grounded in the understanding of the principles that corporations govern--each governs itself internally and is subject to governance rules from the complex of stakeholders that make up its operating constituencies. Corporations thus sit within state "law" systems" and non-state behavior norm systems, each binding to the extent of its jurisdiction--states within their territories, stakeholders within the extent of their power to affect each other.  "In addition to compliance with national laws, the baseline responsibility of companies is to respect human rights. Failure to meet this responsibility can subject companies to the courts of public opinion - comprising employees, communities, consumers, civil society, as well as investors - and occasionally to charges in actual courts. Whereas governments define the scope of legal compliance, the broader scope of the responsibility to respect is defined by social expectations - as part of what is sometimes called a company’s social licence to operate. . . . The corporate responsibility to respect exists independently of States’ duties." United Nations Human Rights Council, 8th Sess Agenda Item 3, Protect, Respect and Remedy: a Framework for Business and Human Rights Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/8/5 (7 April 2008) (at Paras 54-55).  Indeed, the very description of the responsibility acknowledges both the relationship to and the autonomy from the domestic legal systems of those states within which a corporation or other economic enterprise may operate.

The responsibility to respect, thus understood, does not exist as a free floating obligation with an ambiguous relationship to public international law or to corporate obligations imposed by the domestic legal orders of states in which corporations operate. . . . . The responsibility is defined by reference to norms in international norms, but is grounded in the social license of corporations.  Corporations are legitimated as creatures of law by complying with the requisites of the law applicable to their organization and operation.  Legitimation provides a corporation with certain rights under the domestic law of a state--legal personality, limited liability, the right to access the formal system of dispute resolution and the like.   Corporations are legitimated as economic entities by the actions of their principal stakeholders . .  .investors purchase securities, customers purchase products, employees work, trade creditors extend credit, and the like.  A corporation cannot exist as a viable entity in the absence of either legal or social  "validation."  The expectations of stakeholders as well as those of states, bind corporations as a matter of law and economics.  Human rights touches on the relationship of the corporation to its stakeholders in the context of the social license within which they operate. Those rights, sourced in global norms developed as consensus among the community of nations, apply beyond the particular laws of a state.  In some contexts, corporations face compliance with a multiple set of norms--state law and social license norms (the responsibility to protect).  In other context, especially where corporations operate in states with weak of ineffective government, or where corporations operate in conflict zones, the only norms that may guide corporate behavior may be those arising from their social license (and grounded in human rights). Larry Catá Backer, Business and Human Rights Part I--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 1, 2010.
The existence of multiple sources of obligation, each derived from its own constitutive governance framework does not suggest an anarchic systems of unconnected and disaggregated obligations., nor does it suggest disconnect or incompatibility among these systems.  Within a framework of economic globalization, one grounded in the movement of significant economic forces, trans-systemic activity could be long sustained in the absence of communication and harmonization.  Communication makes it possible to move between borders--physical or conceptual.  Globalization requires a common language. Harmonization suggests the necessity of shared understanding of the meaning of words and the expectations of behaviors to facilitate activity. Globalization requires at least the recognition of a common set of standards of behaviors and expectations, or at least of the consequences of deviating from them within particular localities.  To some extent, then, substantive values tend to be trans-institutional.  The same values that are reproduced as global social consensus on appropriate behavior tend to find themselves incorporated into the law of the domestic legal orders of states.

Conversely, failures to observe consensus based substantive norms can arise when either states or corporations fail to respect those "norms" central to systems of law or social regulation.  Just as corporations can breach its obligations under national or "social license" norm structures, so can a state breach their obligations under either.  The issue of complicity arises when states or corporations work together or are involved in such transgressions together. Within the context oif the U.N. Framework, the importance of complicity has been underscored:
73. The corporate responsibility to respect human rights includes avoiding complicity. . . .  Complicity refers to indirect involvement by companies in human rights abuses - where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.

74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime . . .

75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural. United Nations Human Rights Council, 8th Sess Agenda Item 3, Protect, Respect and Remedy: a Framework for Business and Human Rights Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/8/5 (7 April 2008) (at Paras 73-75).
Complicity suggests the ways in which breaches of both the state duty to protect and the corporate responsibility to respect can occur in concert.  Concerted breaches can be more dangerous than a breach of either a duty to protect or a responsibility to respect precisely because the breach crosses regulatory borders.    "More importantly, though, complicity analysis is useful beyond its substantive implications.  It also highlights the links between the state duty to protect, the corporate responsibility to respect and the remedial pillar.    See, Larry Catá Backer, Business and Human Rights Part II--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 2, 2010.  Anna Triponel recently noted both the extent of this connection and the  danger of relying solely on the state and legal frameworks for  effectively meeting the challenges posed by complicity among states and transnational actors.  See Anna Triponel, "Business and Human Rights Law: Diverging Trends in the United States and France", 23 American University International Law Review 855 (2008)
 Triponel reminds us that though international actors have been attempting to change global legal culture to embrace the notion of state liability for complicity in the human rights violations of private actors, "it is improbable that France or the United States would be held liable under this standard." Id., at 879. On the other hand, French courts will enforce supra national law directly in French courts to a much greater extent than American courts. But those direct obligations generally extend to the specific obligations of France under the European Convention on Human Rights, and the legal framework of the European Union. For Americans, the pickings are slim. . . .   Beyond that there are voluntary codes., but enforcement is private and subject to substantial criticism among civil society actors eager to impose more direct obligations on corporate entities. Id., at 885-891.  Larry Catá Backler, Yelling Loudly and Carrying a Small Stick: The Nation State and the Enforcement of Global Human Rights, Law at the End of the Day, June 30, 2009 (reviewing Anna Triponel, "Business and Human Rights Law: Diverging Trends in the United States and France", 23 American University International Law Review 855 (2008)
Triponel notes that "plaintiffs increasingly use the theory of corporate complicity in domestic law suits against corporations. As such, defining the parameters of corporate complicity is especially important." Triponel, supra, at 904 ("The International Commission for Jurists, for example, was created in 2006 to 'develop the legal and public policy meaning of corporate complicity in the worst violations of international human rights and humanitarian law that amount to international crimes.'” Id (quoting in part Business & Human Rights Resource Centre, International Commission of Jurists - Expert Legal Panel on Corporate Complicity in International Crimes)). More interesting, perhaps, is the emergence of a soft law framework for remediation for harms stemming from corporate complicity in human rights abuse. ID., at 898-904. The National Contacts Point in the UK has taken this up recently under the OECD Guidelines for Multinationals. See Larry Catá Backer, Rights and Accountability in Development (‘Raid’) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, Melbourne Journal of International Law Vol 10:258-307 (2009).  See also Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon, 20 BERKELEY J. INT'L L. 91 (2002); Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE. L.J. 443 (2001).

Concerted breaches also suggest the importance of invoking both the state-law system and the social license systems to seek to manage, and in the best case, remedy these breaches.  Recent approaches to complicity by states and corporations in their respective human rights related harms nicely illustrate the complexity of the interplay between state-based law systems and non-governmental private governance (social license systems in the language of the U.N. Framework).  Complicity also suggests the functional efficiency that marks the growing movement away from law to management governance systems.  This is nicely illustrated by the recent efforts of the Russian Federation to protect the intellectual property interests of Microsoft Corporation.    In early September 2010 reports began be published in leading global newspapers about a curious partnership between Microsoft Corporation and the Russian Federation related to Microsoft's global efforts to manage its intellectual property piracy problem.  On the one hand, the stories were all about the use of law to protect the rights of a corporation to its property in accordance with national and global standards.  On the other hand, the story suggested a partnership of convenience in which the Russian Federation was able to  suppress its critics in civil society and in return Microsoft got state action agonist intellectual property pirates.

It was late one afternoon in January when a squad of plainclothes police officers arrived at the headquarters of a prominent environmental group here. They brushed past the staff with barely a word and instead set upon the computers before carting them away. Taken were files that chronicled a generation’s worth of efforts to protect the Siberian wilderness. The group, Baikal Environmental Wave, was organizing protests against Prime Minister Vladimir V. Putin’s decision to reopen a paper factory that had polluted nearby Lake Baikal, a natural wonder that by some estimates holds 20 percent of the world’s fresh water. Instead, the group fell victim to one of the authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.Clifford J. Levy, Part V: Unlikely Partners, Russia Uses Microsoft to Suppress Dissent, New York Times, Sept. 11, 2010.

From the perspective of the law-state, Microsoft is a stranger to the actions of the officials of the Russian Federation.  Respect for the law and for its formal application, is a matter for state authorities.  If, as a consequence of the Russian enforcement activities there appears to be a targeting of some classes of violators over others, that is a matter for state concern, and for diplomatic interactions between states.  Yet, it appears that Microsoft has not been entirely passive in the protection of oist property rights, and the enforcement through the good offices of Russian state officials.
Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government. As the ploy grows common, the authorities are receiving key assistance from an unexpected partner: Microsoft itself. In politically tinged inquiries across Russia, lawyers retained by Microsoft have staunchly backed the police. Interviews and a review of law enforcement documents show that in recent cases, Microsoft lawyers made statements describing the company as a victim and arguing that criminal charges should be pursued.

But Microsoft Corporation also is proud to present another face to its staekeholders.  It announce--to its investors and consumers--that "At the world's largest software company, we create social and economic impact wherever we do business. We are accountable to shareholders, customers, employees, business partners, and in meeting their expectations we are committed to operating responsibly and sustainably." Microsoft Corporation, Investor Relations, Governance and Citizenship at Microsoft. Microsoft also reminds its stakeholders that "Good corporate governance encourages accountability and transparency, and promotes good decision-making to support our business over decades." Microsoft Corporation, Investor Relations, Corporate Governance.

In addition, its "technology innovations, people, partnerships, and day-to-day business operations make a meaningful contribution to the sustainability and prosperity of communities around the world." Microsoft Corporation, Investor Relations, Corporate Citizenship.  Yet, from the perspective of  Microsoft's obligations sourced beyond the law-state system of the Russian Federation, it was precisely these goals there were being compromised by its efforts to help the Russian Federation enforce its law generally, and enforce its law through the targeting of civil society actors that tended to challenge governmental actions, in particular.  Lawfulness, here, appeared to serve as a screen for political activity under cover of law, and Microsoft complicit in the actions for its own narrowly personal economic interests.

The power of this autonomous system was felt almost immediately after the New York Times reported Microsoft's relationship with the government of the Russian Federation:
In an attempt to protect the Russian nongovernmental organizations and the independent news media from attacks by authorities who accuse them of violating Microsoft's copyrights, the company will temporarily legalize their pirated software.
What Microsoft will actually do is issue a “unilateral NGO software license” that will be covering NGOs' software automatically, until 2012, according to Microsoft’s senior vice president Brad Smith.
He added that NGOs and independent news organizations won’t need to take any steps to benefit from the license’s terms, and that this initiative will hopefully prevent NGOs from falling victim to “nefarious actions taken in the guise of anti-piracy enforcement.”
“Now our information will fully exonerate any qualifying NGO, by showing that it has a valid license,” he wrote on his blog.
The next step will come in 2012, when Microsoft will move all NGOs into its existing donation program, Infodonor, and allow them a to possess up-to-date software. Microsoft Legalizes Russian NGOs Pirated Software, Softpedia, Sept. 15, 2010.
The critical role played by powerful media actors cannot be overlooked.   "In response to inquiries from The New York Times about Microsoft’s role in antipiracy inquiries in Russia, Kevin Kutz, director of public affairs at Microsoft’s headquarters in Redmond, Wash., states that one of the additional antipiracy efforts in Russia is to increase awareness of Microsoft’s Infodonor program among NGOs in Russia, particularly outside the capital cities. This program makes software available to NGOs with no charge by Microsoft. Just a few NGOs benefited from it because most Russian organizations didn't know about this possibility."  The New York Times effectively converted a Microsoft Corporation single minded effort to protect its property rights indiscriminately into a more nuanced program that recognized the human rights effects of its decisions. Microsoft changes its policy concerning Russian NGOs, International Network Youth Human Rights Movement, Oct. 21, 2010. On the role of the media in the implementation of non-state autonomous governance systems generally, see, Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008. A

By November, then, Microsoft Corporation had moved to institutionalize its now reoriented program.  The effect was to fine tune Microsoft's approach to the protection of its intellectual property, permitting it to aggressively protect its property while doing it in a manner more sensitive to the needs of civil society elements and the effects of its economic decisions on the rights of individuals within states. "Microsoft will issue a "unilateral NGO software licence" that will run automatically until 2012 and cover "the software already installed on their PCs", Microsoft’s senior vice president Brad Smith said on his blog. The move will hopefully prevent NGOs from falling victim to "nefarious actions taken in the guise of anti-piracy enforcement", Mr Smith wrote. 'Now our information will fully exonerate any qualifying NGO, by showing that it has a valid licence.'" Microsoft blankets NGOs and media in Russia with free licences, Rossiyskaya Gazeta (Russia) from the Moscow Times, Oct. 29, 2010.  That was possible only because Microsoft Corporation was required to meld its rights and obligations within the domestic legal order of the Russian Federation,  with its obligations as an actor within transnational commercial systems.  And Microsoft Corporation was able to do good in this way without breaching the laws of the Russian Federation, or permitting the Russian Federation to use its legal structure to adversely affect the human rights of its civil society sector.  The incentive--compliance with came at little economic cost to Microsoft:  it was reported that "'NGOs only account for a tiny proportion of software users, meaning that anti-piracy efforts will have to continue at full swing,' said Alexei Maximov, editor of the Russian edition of PC Week." Microsoft blankets NGOs and media in Russia with free licences, Rossiyskaya Gazeta (Russia) from the Moscow Times, Oct. 29, 2010.  Complicity avoidance pays in traditional as well as in contemporary terms.

Complicity invokes issues of state duty to protect, the autonomous responsibility of the corporate obligation to respect, and the equally autonomous provision of remedies for complicity violations by entity and state."  Larry Catá Backer, Business and Human Rights Part III: Foundations, Law at the End of the Day, Feb. 3, 2010.  The state alone is incapable of bearing the entire weight of he human rights obligations of all stakeholders in the current system of economic globalization.  Human rights impacts are both borne by and the responsibility of all actors.  It is far too late to construct governance systems on the basis of misplaced nostalgia for a world order (and world ordering system) that like the German and Japanese Empires, were swept away after 1945. The U.N. Framework takes this new set of complex polycentric governance structures into account in constructing systems to meet its specific objectives--the ordering of business and human rights within an ordering framework.  The recent actions of Microsoft Corporation in the Russian Federation suggests both the reality of this emerging system and its functional governance effectiveness.   More importantly, it suggests the depth and reality of governance systems beyond the state, and of their utility as an important part of any framework to manage activities, from whatever source, that may negatively impact human rights.