Saturday, May 21, 2011

Governance Without Government; Government Without the State

(From , The Rule of Law Without the State, Ludwig von Mies Institute, Sept. 12, 2007)

From my essay:  Governance Without Government:  An Overview

Benito Mussolini once declared: “for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people” (Mussolini 1932, ¶ 7). This idea, shorn of its fascist ideology, remains both popular and foundational for the functioning of the state system and the international public law frameworks it supports (Alvarez 2005, 45-64). That idea of the state continues to frame the way in which elites approach the issue of public authority, the privileged position of the state (operated through the apparatus of its government), and the theoretical starting point for much discussion of law and governance (Backer 2008d). The state remains at the center of efforts to vest it with an ever expanding authority derived from some source or other—the people, some divine being, historical determinism or the like (Backer 2009c)—even as regulatory authority seeps outwards to international public and non-state actors. What lies beyond the state is not the stuff around which a government can be organized—its effects are merely felt as governance (Commission on Global Governance 1995; Ruggie 1982) rather than pronounced authoritatively through government (the state). Positing the central concern of this chapter as governance without government, then, suggests an identity between government and the state and a hierarchical relationship between governance and government.

This chapter examines the possibility of governance without government and considers the more radical notion that government itself can exist without the state, that is, that the organization of governance does not require a territory from out of which to project governance power. And thus my thesis: Globalization has made it possible to develop governance spaces outside both the state and public international organizations that can produce its own internal constitution exiting autonomously from the government of the state (and its public law frameworks), though in communication with them. One reaches here the limits of extraterritoriality: the normative framework of the discussion changes from one centered on the management the legitimacy and mechanics of the projection of governance power by the government of a state into another, or the protection against the projection of governance power onto a territory, to the development of a framework for the management of the infiltration of governance power from non territorially based governments. In other words, one moves from a discussion of the framework for managing the authority of the United States to project its regulatory power (for example over chemicals in consumer products) to Chinese manufacturers, to one where the authority of Wal-Mart to impose its regulatory determinations (by determining the content of the products it will order and sell) on both the United States and China moves to center stage (Backer 2011).

The chapter first provides an overview of the extent of contemporary reticence to embrace any “governance without government” framework that strays too far from the embrace of the state system and public power, that is of the possibility that communities can come together and share a governance structure without the prior requirement of a state or of the government that serves as the incarnation of the state. Following Renate Mayntz, it understands governance as the constellation of institutionalized modes of social coordination that produces and implements collectively binding rules, or collective goods (Mayntz 2005, 83-85). The focus is on an examination of the strands of the conventional theoretical debate and more particularly on representative work sympathetic to the project of governance without government. It very briefly outlines the normative framework of the conceptual framework for thinking about governance without government (that is without the state). This debate tends to suggest variations on a common theme: 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 orbit of the state. To some extent, conventional writing still suggests that these governance systems remain dependent on and subordinate to the legal orders of states or their international bodies. More pointedly, some make the case that efforts to theorize or produce evidence of the plausibility of any escape from the orbit of the state is neither necessary, feasible or prudent (Bodgandy, Dann and Goldmann 2008; Lobel 2007). For others, that search for autonomy is irrelevant. In a complex global legal order made up of intertwining governance regimes reconstituting governance within a “mixed, public-private, dynamic norm creation process” (Calliess & Zumbansen 2010, 277) what is useful is recognition of the embededdness of norm affecting governance mechanics outside the state. This section suggests that this conversation about the limits of government without governance can be usefully organized into five great currents: as illegitimate; as a species of devolution; as management; as mimicry; and as a component of a larger coherent regime producing something of a public-private transnational system. For all of its innovation, though, much in the academic literature still situates governance very much “in the State” (Mussolini 1932, ¶ 7) or its instrumentalities either directly, by affirming the supremacy of law (national or international, public or private) in some sort of ordering involving public and private actors. Whatever its form, the state is never far from the center; the “state is nothing else but the mobile effect of a regime of multiple governmentalities” (Foucault 2004, 31 January 1979, 77).

The chapter then proposes the contours of the constitution of such a governance framework beyond both government and state. Once the identity of state and government is displaced, the possibility of the governmentalization of non-state sectors become visible—not as some sort of appendage to the state, or even perhaps as a component of a complex weaving of regimes that produce norms, but of government in their own right. For that purpose, it looks to the government of three systems of non-state governance. The first looks to the self regulating corporation (Teubner 2009)—a corporation that can regulate itself through the ordering of its world wide operations, and that can project its regulation extraterritorially, that it outside of its own corporate “internal governance territory” through its supply and value chains. The second examines the constitution of a government for the regulation of the behavior of corporations funded under the framework established through the Organization for Economic Cooperation and Development (Backer 2008). The third considers the governmentalization of governance norms for business and human rights through the development of the United Nations Protect-Respect-Remedy framework (Backer 2010). The second and third consider governance systems organized within the international legal order. The three systems acknowledge 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 functionally differentiated regulatory communities through which governance is emerging do not reproduce the state (Esmark 2009, 353-359); they represent the power of individuals and groups that consent to come together for jurisdictionally or temporally limited purposes and bind themselves to rules they have created for the purpose of furthering the objectives of that union. This suggests an institutionalization of hard governance, of government, in the absence of the state. The idea of the state can morph from a territorially privileged totalitarian ideal, understood in its sense of the state as the ultimate repository of all authority, to a social system expressed through territory (Rokkan 1999, 104) and embedded in more complex coordinated governance. Alternatively, the state can be understood as a political actor limited ultimately to what it can control within or through a connection to its territory (Teubner 1997) including governance regimes of non-state actors.

To read more download the draft by following THIS LINK and download the manuscript.

Tuesday, May 17, 2011

Cuba's 6th Party Congress and the Lineamientos (Guidelines) For Structural Change In Cuba

The Cuban Communist Party and state apparatus has been considering a set of Guidelines (Lineamientos) that have been in circulation since late Summer 2010.  These Lineamientos serve as a detailed, though still general, basis for reordering the economic framework within which Cuban socialism is understood.  They suggest the opening to potentially significant structural changes in Cuban economic policy.  


The Guidelines were debated formally at the recently concluded 6th Party Congress of the Cuban Communist Party and approved in the following form: 
The Guidelines are divided in a number of subparts:  model of economic development, macroeconomic policies, external political economy, investment policies, innovation policies, social policies, agricultural policies, industrial and energy policies, tourism, transport policy, construction, housing, commercial policy, and implementation issues. "The finalized document, however, provides few specifics about how the changes outlined in the 313 approved guidelines will be implemented. It does call for a government-created commission to manage the implementation of the Guidelines, including the development of a legal and institutional base to support the changes. No timeline is given for the creation of the commission or implementation of Guidelines." From Cuba’s government releases ratified Economic Guidelines, Center for Democracy in the Americas, May 10, 2011. 

A companion booklet was also published:  
The Tabloide presents a summary of the changes from the draft Lineamientos and the official reasons for the changes.  Both are required reading for getting a sense of the cope and direction of the economic (and necessarily political) changes that are being contemplated in Cuba.

The character and scope of the changes contemplated by the Guidelines was summarized in a press release of the Cuban government published through its Danish Embassy.

  The 6th Congress of the Cuban Communist Party (PCC) concludes after three days of debates in which delegates focused on the updating of the country´s economic model.  Participants in the meeting which started on Saturday, April 16, discussed and approved the event´s Central Report, presented by the second secretary of the party, Raul Castro, at the opening session. Delegates met in five commissions and plenary meetings to discuss the Economic and Social Policy Guidelines of the Draft Party Program, approving them after further exchange and a mass consultation of the population. The 6th PCC Congress instructed the government to set up a standing commission for the implementation and development of the guidelines, without damaging the functions of the state´s Central Administration agencies. It also recommended that the Parliament, the government and corresponding agencies draw up and approve, according to the case, the necessary legal norms to create the legal and institutional basis to support the foreseen functional, structural and economic changes. The delegates stated that the Central Report is essential to undertake future tasks, mainly in the economy, and is an objective assessment of this crucial time for the nation. (From EMBASSY OF THE REPUBLIC OF CUBA IN THE KINGDOM OF DENMARK, Information Bulletin Issue No. 2,  May 2011; Prensa Latina News Agency).

It has been reported that "many US and European news organizations viewed the changes as a great stride towards a market economy, with headlines like “Havana frees up markets—with a caveat” (The Miami Herald) and “Raúl Castro apuesta por reformar la economía y el Partido Comunista en el VI Congreso” [es] [“Raúl Castro is committed to reforming the economy and the Communist Party at the VI Congress”] (El Pais), the rhetoric of the congress itself demonstrated a commitment to strengthening and modernizing, but not marketizing, Cuban socialism." (Cuba: Bloggers Reflect on Reforms at Communist Party Congress, Global Voices, April 28, 2011).  But of course, that is the usual indulgent and exaggerated wishful thinking driving the creation of flashy items for a readership increasingly only sated with news of an extreme sort.  On the other hand," Bloggers in Cuba, and those who follow Cuba from other parts of the world, offered a diverse range of reactions." (Id.). Indeed, within Cuba there is an acute sense that even the limited reforms reflected in the Lineamientos may face opposition by an entrenched bureaucracy.  "A pesar de no haberse logrado la esperada "renovación generacional" en el más alto nivel de dirección del gobernante Partido Comunista de Cuba (PCC), este país podría entrar en una nueva etapa de desarrollo socialista si se lograr superar la resistencia al cambio de los sectores más conservadores." Dalia Acosta, Carrera de obstáculos hacia la renovación, IPS, April 22, 2011 (Despite not having achieved the expected "generational renewal" at the highest level of leadership of the Communist Party of Cuba (PCC), this country could now enter a new stage of socialist development if it can overcome resistance to change from its most conservative sectors).

Raul Castro emphasized both the limited nature of the reforms (despite their comprehensive scope) and the speed with which they will be implemented. 
Raul Castro Closed the Congress of the Communist Party of Cuba. The First Secretary of the Central Committee of the Communist Party (CPC) of Cuba Raul Castro, staid the main task now is to fulfill the agreements of the congress under the common denominator of order, discipline and exigencies. Raul Castro defined as the most important commitment to achieve is to update Cuban economic model with the help of all, to ensure the irreversibility of socialism in Cuba. The updating is not a miracle achieved in the overnight; it will be gradually accomplished over five years, as lot of planning and coordination work is needed in both, law and in the training of those involved in it, he said. . . . The main enemy is in our own shortcomings and therefore, in such a great task to the future of the country we will make needed changes if necessary as indicated Fidel and at the pace demanded by the circumstances. (From EMBASSY OF THE REPUBLIC OF CUBA IN THE KINGDOM OF DENMARK, Information Bulletin Issue No. 2,  May 2011; Prensa Latina News Agency).
(Central Committee of the PCC; From  Dalia Acosta, Carrera de obstáculos hacia la renovación, IPS, April 22, 2011).

While the Western press was at pains to emphasize the extent of the changes in the Guidelines, internal coverage in Cuba tended to stress continuity and the seamlesness of socialist development represented by the Guidelines.  For a nice example (in Spanish) see Angel Guerra, Cuba: otros apuntes sobre el Congreso, Caminos, May 4, 2011.
Los medios fundamentales de producción continuarán como propiedad estatal de todo el pueblo pero se ampliará considerablemente el campo a las formas de propiedad o gestión no estatales en numerosas producciones y servicios mediante un gran impulso al autoempleo y la microempresa; se elevará el límite de tierras ociosas que está permitido entregar en usufructo a particulares y cooperativas. La ampliación de actividades económicas fuera del ámbito estatal permitirá que el Estado deje de realizar funciones que hoy desvían su atención, concentrarse en elevar la eficiencia de la producción y los servicios básicos y crear un espacio para la reubicación de cientos de miles de trabajadores del sector público. La educación y la salud gratuitas y universales, la seguridad y la asistencia social, conquistas históricas de la Revolución, continuarán dentro de la esfera estatal, que estará en mejores condiciones de elevar su calidad y continuo perfeccionamiento, logrando mejor servicio con menos gasto. Es el pueblo, la elevación de su nivel de vida, de sus valores éticos y políticos lo que anima este proceso.

La autonomía de las empresas y la descentralización del Estado son indispensables para potenciar la participación de los trabajadores en la gestión económica, comunitaria y estatal, logrando el nivel superior de democracia socialista requerido por este complejísimo programa de cambios. . . . 

Igualmente, el éxito de este proceso depende de una elevación del papel dirigente del Partido Comunista, de un cambio en sus métodos y estilo de trabajo que exige deslindarlo de funciones gubernamentales. El poder del partido, señaló Raúl Castro, descansa básicamente en su autoridad moral, en la influencia que ejerce en las masas y en la confianza que el pueblo deposita en él. . . . .(From Angel Guerra, Cuba: otros apuntes sobre el Congreso, Caminos, May 4, 2011.)

(Rough Translation: The basic means of production will continue as property of the state owned by  all the people but forms of property and enterprise in the non-state sector will be considerably augmented in numerous areas of production and services through a big boost in self-employment and microenterprises; the limit of idle land that may be transferred to individuals and cooperatives in usufruct will be increased. This expansion of economic activities outside the state level will allow the State to stop performing functions that now divert its attention, so that it can focus on increasing the efficiency of production and basic services and create a space for the relocation of hundreds of thousands of public workers. Education and free and universal health, safety and welfare, historic achievements of the Revolution, will continue within the state sphere, which will be better able to raise their quality and movement toward perfection, achieving better service at less  cost. It is the people, raising their standard of living, its ethical and political values ​​which encourages this process.

The autonomy of enterprises and the decentralization of government are essential for boosting the participation of workers in the development of the economy, community and state, achieving the highest level of socialist democracy required by this very complex program changes. . . .

Similarly, the success of this process depends on an elevation of the leading role of the Communist Party, a change in its methods and work style that requires that the role fo the Party be separated from government functions. The power of the party, said Raul Castro, lies primarily in its moral authority, in its influence with the masses and the trust that the people places in it. . . .)

 (From Los cubanos podrán viajar como turistas, La Razón, May 10, 2011 (Gobernante. Raúl Castro durante el desfile del 1 de mayo.  (Raul Castro at May Day celebrations)).

But influential elements within Cuba also stressed the long term importance of the changes, while some in the United States remained skeptical.   

Omar Everleny Perez, deputy director of the Center of Cuban Studies of the University of Havana, told me in an e-mail from the island that “we are witnessing a profound updating of the Cuban economic model, much like those of China and Vietnam, with the existing differences of each model.”

Everleny Perez said the economic “transformation” of Cuba will give the private sector “a significant weight, which it has not had in the past.” He said that, among other things, Cuba will eliminate more than 1 million jobs to reduce its “bloated” government payroll — the figure may be as high a 1.5 million — and that it will give land to private farmers so that they can increase food production. . . .

Carmelo Mesa Lago, a University of Pittsburgh economist who is one of the most respected analysts of the Cuban economy, is more skeptical. Barring surprises once the Congress’s resolutions are published, this is not comparable with China’s or Vietnam’s economic openings decades ago, he said. . . .

Mesa Lago said that the most important steps for Cuba to solve its economic crisis would be — in this order — giving private farmers greater property rights, implementing the announced layoffs of up to 1.5 million government workers, and implementing the new rules letting people own homes and cars. “The latest reforms are very timid, and with too many strings attached,” he said. (From Andres Oppenheimer: Cuba’s regime buys time for aging leaders,, April 24, 2011).
None of this should surprise.  Cuban leaders have made it clear that however radical the ideas, all changes must be understood as being "within the Revolution."  However that standard is applied, its logic will be compelling for all sectors of the CCP.  Outsiders continue to look at the changes suggested in the Guidelines as opening a door to structural changes that will undo the Revolutionary ideological matrix that has dominated the state since 1959.  That analytical perspective misses the point and distorts the reality of what will and will not happen as a consequence of the gradual imposition of the Guidelines within the ideological parameters of the "any change means Cuba is moving to undo the Revolution stance". 

There is another important perspective that most analysis seems to have avoided, one that might be far more useful in understanding the internal logic driving the Lineamientos and its development. The comparative emphasis of the Guidelines among influential sectors within and outside of Cuba has been with China and Viet-Nam.  That comparative perspective makes sense at the surface.  One tends to look for similarly situated political systems and then compare among them.  In this case much has been made of the move in the 1980s by Viet Nam and China, which starting from more orthodox Marxist-Leninist positions, moved towards market tolerating economic models and more fully engaged with the global economic order grounded in private markets and free(er) movement of capital.  The debate, then, centers on the extent to which Cuba might follow (more of less) the course taken by either of those two states, and the possible deviations therefrom.  Much is made of the differences between the Communist Party architectures of these states, the relative development of their economies, their comparative relationships with the United States and other countries and the role of the revolutionary generation (or its passing) in the move toward change.   

That is all very useful.  But Cuba is essentially Latin and European (and perhaps still Soviet) in its culture and perspectives.  It might be as useful to compare the movement represented by the Guidelines not toward Asia but toward Europe.  The hint of the utility of the approach is suggested by the form of the proposed reform--as Guidelines.  It is also suggested by the (for Cuba) extra-ordinary forms of consultation--the Guidelines were first debated (in the form such debate is permitted in Cuba) among the people, academics and functionaries, and then instituted as more or less binding Guidelines by the political leadership of the state through the endorsement by the Cuban Communist Party. The Guidelines were even debated (among the Cuban elite) outside the Island.  This methodology of change, this form of movement toward economic reform within the ideological parameters of the current situation, this ostentatious form of consultation and deliberate movement is peculiar in this form not so much to Asia as it is to the European Union.   

As described briefly in the official website of the EU: "The worldwide economic recession in the early 1980s brought with it a wave of ‘euro-pessimism’. However, hope sprang anew in 1985 when the European Commission, under its President Jacques Delors, published a White Paper setting out a timetable for completing the European single market by 1 January 1993. This ambitious goal was enshrined in the Single European Act, which was signed in February 1986 and came into force on 1 July 1987." (From Europa, Europe in 10 Lessons).  That White Paper, written i the form of a set of objectives with a large number of concrete steps to be undertaken over a perod of less than a decade suggests the form of the Lineamientos.  See Completing the Internal Market: White Paper from the Commission to the European Council (Milan, 28-29 June 1985) COM(85) 310, June 1985 {Main text [2890KB]; Annex .  The White Paper itself set out the objectives of European integration in line with the ideological position embraced by the institutions of the then European Communities.  It was accompanied by an Annex that served as an "action programme of the measures needed to meet that objective."  (White Paper, supra, Annex at I).   And in language suggesting the methodological approach of the Cuban state to reform, it was noted that "[c]learly, the Internal Market cannot be completed at a stroke.  The interim period leading up to 1992 must be put to the best possible use to ensure that the adjustments needed to cope with the final dismantling of the internal frontiers are not too abrupt." (Id.). 

It might be useful to keep the earlier European experience in mind, within the quite different ideological framework of the Cuban state apparatus and its circumstances.  The European experience stressed the need to identify and implement hundreds of small technical changes, none of which individually threatened the structure or ideology of the state system supporting the construction and understanding of the European Communities itself.  However, together, the aggregate of these small technical changes over time succeeded in fundamentally changing the architecture of European governance, again without threatening the ideology supporting the Europeanization project itself.  This is the sort of technically driven bottom up approach that would most likely produce some chance of real success for the Guidelines and is suggested by the methodology of the Guidelines themselves.  As Cuba goes about the cautious task of changing the operation of its internal economy through the adjustment of "little facts", technical changes below the threshold of ideology,  while it seeks to keep unchanged the larger ideological architecture within which the state is organized, it may well be able to fundamentally alter the operation of its economy "as applied" while remaining loyal to the macro ideologies on which the state organization is founded.  The European Union's experience suggests that technical reform from the bottom up can work, and have profound practical changes without the need to disturb the ruling ideology of the state apparatus.  It will be interesting to see if Cuba can successfully manage this very European approach to "change without changing. "