Can the State Survive its Own Ambitions? A Reluctant Critque of Legalization of Corporate Social Responsibility Codes

(Pix © Larry Catá Backer 2015)

In her book, Enforcing Corporate Social Responsibility Codes (Hart Publishing, Nov. 2015) Ana Beckers, Assistant Professor of Private Law and Legal Methods, a member of the Maastricht European Private Law Institute and the Ius Commune Research School, "develops proposals on the relation between global corporate self-regulation and the national private law systems. [She] uses methods of comparative law and sociological jurisprudence to argue that national private law can, and in fact should, enforce these codes as genuine legal obligations" (Book Details (Hart). Professor Beckers has done a marvelous job of organizing a quite robust and wide ranging discussion around the central themes of that work, to which Gunther Teubner, Jan Smits, Mark Kawakami and I will be contributing.  These I expect to be published sometime this year in the Indiana Journal of Global Legal Studies. 

My contribution, A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes, serves as a reluctant critique of the enterprise of legalization.  It is reluctant because, like many raised during that period that marked the last blazing sunburst of state authority and power to order the world, one feels a certain comfort in the verities on which they order was founded and through which it was able to operate successfully enough for a fairly long period of time. The critique is grounded in irony and inversion--it suggests that the project of legalization can work, but the price will be quite high.  In order to succeed, the state will have to overcome itself. That is, the project will succeed only by undermining the state and the coherence of law within the state order. That may be a good thing; it might be inevitable, but it can also produce the perversion of law.  The abstract is set out below, along with links to the current draft.  Because the immediate object is the regulation of economic activity, and especially economic activity with human rights effects, the stakes and consequences are not insignificant. Comments etc. most welcome.  

A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes

Larry Catá Backer

ABSTRACT: Recent efforts have sought to theorize the legalization of the social and economic sphere that is undiminished by time. Though the context has changed over time, the project remains the same — to embed behavior control within a network of mandatory proscriptions attached in some authoritative way to the state. Corporate social responsibility bound up in corporate codes of behavior and related private governance standards systems serves as a key site for the evolution of legalization and legitimacy in governance, from its twentieth century formalist rigidity into something of a bridge between the political and social sphere. This essay considers the legalization project and its challenge to the logic and legitimacy of law and the dangers--for state and business enterprise--that flows from the fundamental ideological premises that appears to make this legalization project within the state both necessary and inevitable. These include the misdirection of "law" labeling--dismissing non-law as necessarily illegitimate, the obliteration of the fundamental construct of and constraints inherent in the corporate form, the error of conflating regulation with law, the unintended consequence of subverting law through the incorporation of a societal element in law making, and the error of denaturing the societal element of corporate codes, and the production of perversity through the formalism of law that masks inverted power relations between powerful enterprises and weak states. Paradoxically, perhaps, the project of legalization evidences how a love of ancient custom, in this case the customs and patterns of the post-Westphalian law-state, remains, while power shifts to those, enterprises included, that have brought about a revolution in the state, and in the meaning of legalization in a new world order that has yet to be revealed.