Owing to its formal superiority, jurisprudence can easily assume a posture similar to Catholicism with respect to alternating political forms in that it can positively align itself with various and sundry power complexes, provided only there is a sufficient minimum of form “to establish order.” Once the new situation permits recognition of an authority, it provides the groundwork for a jurisprudence—the concrete foundation for a substantive form. (Ibid., p. 29)Schmitt also reminded us nearly a century ago that the significant concepts of the theory of the state are theological in nature that have been de-natured, but whose patterns and premises remain essential to the understanding of the way in which these conceptions are realized. Those notions have become more important in the context of the extension of the issues of theories of the state to theories of the governance organization within the context of globalization and its opportunities for the development of non-state governance organizations, and principally economic enterprises created out of the aggregations of multiple juridical persons established in a sometimes large number of states.
These notions play a central role in the most important global movement of the 21st century--the movement toward the constitutionalization of organization and the development of value structures for the management and operation. The concept of constitutionalization now plays a key role not merely in the way that one conceives of efforts at the construction of networks of harmonized global standards in politics, economics, social, political and civil mores, but also in the way influential sectors of global society have tended to frame a range of issues--from corporate social responsibility and human rights, to the determinants of legitimacy in state and international organizations. Indeed, constitutions and constitutionalization now appears to be the bedrock on which the merging structures of globalization are to be routinized, bureaucratized and disciplined. To understand the concept of constitutionalization, then, becomes an important element in the understanding of why it is that current discussions of everything from the responsibilities of multinational corporations to the legitimacy of states, their actions and their governments are framed the way they are. And to understand that conception one must start, as Schmitt reminds us, with the insight that in the project of the construction of a constitutionalizing set of world orders is to a great extent theological in nature. Thus understood, the core conceptual framework of Western theologies and the problems they pose serve as a useful vehicle for understanding the way problems are posed, issues framed and approaches are developed in the process of creating legal persons out of aggregations of constituents, and investing it with authority in its relationships with each other and with their constituents.
I consider some of these issues, especially as they relate to the characteristics of the governance authority and responsibilities of multinational enterprises in a new paper just posted to the Social Science Research Network (SSRN), "The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century."
The paper was first presented at the International Seminar: Constitutionalization of the World-Power System, held 19 and 20 June 2014. It was organised by the Economy, Man and Society Research Department, Collège des Bernardins and the University of Paris Nanterre and held at the Collège desBernadins in Paris. My thanks to its organizers and especially Jean-Philippe Robé, Stéphane Vernac (Université de Picardie Jules Verne (Amiens)) and Fr Baudoin Roger, Codirecteur du département de recherche «Economie, Homme, Société».
The abstract and Introduction to the paper follow.
The paper may be ACCESSED HERE.
The PowerPoint of the Conference Presentation may be ACCESSED HERE.