Thursday, January 29, 2015

Just Posted: "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide"

The regulation of the human rights impacts of economic activity has produced some of the most significant changes in the scope, nature and understanding of the character of law, governance, the state and the international order.

(Pix (c) Larry Catá Backer 2015)

I have been considering the systemic aspects of this emerging structures of "law", that now include both traditional state produced law and governance rules produced by non-state actors.  To that end I have drafted an essay, "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide." My object is to try to identify the "constitution" within which these emerging multi-rule systems operate.  Transnational governance is not arising as a haphazard and chaotic process; it follows organizing rules and is bounded by premises that distinguish between legitimate and illegitimate efforts.  these rules ought to be of interest to lawyers and policymakers who venture into this increasingly important area of individual and institutional behavior management. 

The abstract follows. The essay may be found HERE.  A final version of this essay will appear in Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter (eds.) Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society.

Larry Catá Backer

Abstract:  The development of governance regimes for the human rights impacts of economic activity has been at the center of the evolution of governance where multiple legal and non-legal systems simultaneously apply. The regulation of these activities suggests the way in which non-legal approaches play a crucial role in the creation of structures within which the collisions of polycentric governance, its necessary anarchic character, can be managed (but not ordered).  Consequently it evidences as well the way in which law (and its principles of hierarchy and unitary systemicity) plays a less hegemonic role, that is, the way in which law has less to contribute toward the governance problem thus posed.  Part I considers the structures and premises of the emerging governance framework built into the United Nations Guiding Principles for Business and Human Rights (UNGP), and the three pillar framework from which it arose (state duty to protect, corporate responsibility to respect, and effective remedies for adverse effects of human rights), as it has been incorporated into the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises. Part II then challenges the formal logic of the theory polycentric anarchy with a consideration of the functional effects of implementation. Governance in action may not so much produce spaces for managed polycentric collision as it links politically posited law and private governance in what could be called an externally regulated self-regulation. In particular, Gunther Teubner’s notion of self-constitutionalizing regimes founded not on polycentricity as order without a center, but rather as the construct of a network of linkages that produces both self constitution and dependent autonomy. The linkages that tie the governance systems of states, enterprises and international bodies in the regulation of the human rights effects of economic activity, then, have substance.  These linkages do not produce order formally, but they do have the functional effect of ordering relations among autonomous actors based on the effects of their communicative interventions. It is in the understanding of the character of those linkages, as anarchic sites for mediation of collision or as the form of new multi-systemic hierarchies of regulation, that one can see emerge the nature of “law” in the 21st century.

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