Saturday, September 03, 2016

Ruminations 64: Can Pragmatism Be Principled? With Application to the Elaboration to Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Backer 2016)

In 2014, the UN Human Rights Council established an open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises with respect to human rights, and mandated the working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The UN Human Rights Council decided that the first two sessions of the working group should be devoted to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument.” At its first session, civil society refined their expectations for the scope and coverage of a treaty instrument under the mandate (¶¶ 21-105). The inter-governmental working group organized its consideration of the scope of a treaty around a number of broad concepts: (1) renewed commitment by states (¶¶37-39); (2) principles (¶¶40-54); (3) concepts and the legal nature of transnational corporations (¶¶55-61); (4) extent of human rights to be covered (¶¶ 62-66); (5) state obligations to guarantee respect for human rights by entities (¶¶ 67-77); (6) enhanced responsibilities for entities (¶¶78-87); (7) legal liability of entities (¶¶88-97); and (8) international remediation mechanisms (¶¶ 98-105). As might be expected at this early stage, there was little consensus on these questions except at a very general level.There may also be some fundamental disagreement between the position of the states supporting the treaty project and their civil society allies.

Such initial stage setting is usually of little interest except for what they might suggest of the underlying tensions that will be built into both the process and product of the treaty elaboration enterprise. This post considers these critiques--of relevance and of the contradiction of pragmatism and principle--in the context of an elaboration of a comprehensive treaty for business and human rights. The object is to consider the principles necessarily embedded in pragmatic choices, and the negative consequences--to coherence and effectiveness--of making choices about treaty specifics that neither adhere to framing principles nor are made on the basis of principles in making pragmatic choices among plausible alternatives.

The work to date, of the IGWG and the elaboration of a comprehensive treaty suggests two principal challenges for the treaty making project—the first looks to consensus on the underlying principles and objectives; the second is the extent to which the provisions of a treaty must conform strictly to principle. Both touch on issues of coherence and vision. And both suggest the need for pragmatism and a set of principles to be developed for pragmatic choices to be made that move from conceptualization to a draft treaty. The first focuses on the political and the ordinary politics of consensus building. The second focuses on framework and method, that is on the methods that guide consensus and the ultimate expression of that consensus in the presentation of an elaboration that represents the agreement of at least the advocates of the treaty process. With respect to the first point, it might be argued that consensus building is ultimately uninteresting as law, though it might be valuable as sociology or politics, or helpful with interpretation issues. With respect to the second point some might suggest both contradiction and irrelevance. There is contradiction because of a false presumption of the opposition of pragmatism and principle—that indeed, the essence of the pragmatic is unprincipled. There follows irrelevance, because there appears to be a desire to approach treaty elaboration in the grand 19th century style misattributed to the Second Reich’s Bismarck: “Gesetze sind wie Würste, man sollte besser nicht dabei sein, wenn sie gemacht warden” (Fred R. Shapiro, “Quote. . . Misquote,” The New York Times Magazine (July 21, 2008) (“Laws, like sausages, cease to inspire respect in proportion as we know how they are made.” John Godfrey Saxe, 1869).

The work of the IGWG, and its associated movement towards the elaboration of an international business and human rights treaty in some form thus presents its proponents with the same sort of problem that was faced in the drafting of the UNGP itself—the problem of pragmatism in the construction of a treaty—from the embrace of a coherent set of animating principles, to the objectives in drafting specific provisions that remain true to these principles. John Ruggie deployed what he termed principled pragmatism to overcome the problems of coherence and choice int he context of mediating conflicting claims among stakeholders. John G. Ruggie, “Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises”, E/CN.4/2006/97, 2006, ¶ 81 ( “As indicated at the outset, the SRSG takes his mandate to be primarily evidence based. But insofar as it involves assessing difficult situations that are themselves in flux, it inevitably will also entail making normative judgments. In the SRSG’s case, the basis for those judgments might best be described as a principled form of pragmatism: an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people”).

Notions of principle and pragmatism, of objective and compromise, will also play a critical role in shaping the discourse that might lead to a comprehensive treaty dealing with business and human rights, and will certainly determine its final scope or eventual rejection. Yet the notion of pragmatism—and especially the principled pragmatism that John Ruggie advanced as the basis for the elaboration of the UNGP, has been criticized by those now driving the treaty movement itself. It is to the fundamental issues of framing the principles behind a treaty, of the pragmatic choices that will shape its structures, and of the compromises that will be necessary in the service of the attainment of the ultimate objectives underlying the push for a comprehensive treaty for business and human rights that this essay is directed.

Principled pragmatism is deeply embedded within the disciplinary structures from which principle is formed, and that embedding produces unintended consequences. Pragmatism here is understood in a very specific way, with a nod toward Charles Sanders Peirce and the semiotics oriented American pragmatic school, the Metaphysical Club, with origins after 1870.  Pragmatism starts from the fundamental assumption that the conception of a thing must be rooted in its effects.   And conversely,  the conception of effects must be rooted in the thing itself. Effects, then, cannot be detached from the underlying thing to which it is related. So with the conception of principle in the elaboration of a treaty.  It's conception must be rooted in its effects, but the conception of those effects are rooted in the treaty itself. Choosing effects--the aggregation of effects--constitute the fundamental conception of the treaty, and thus its framing principles. That amalgam can be either coherent or incoherent, along a large spectrum, of course. And the coherence has consequences--the utility (another variant of popular conceptions of pragmatics) of the effects bent to the objectives to which they are bent. A number of points follow:

First, there is always principle beyond the pragmatic turn. Pragmatism, itself is a choice of principle grounded in the effects it means to produce. The pragmatic turn in principle, then, constitutes a choice among effects and its conceptualization of the principles it represents.

Second, that choice of principle affects the way in which normative principles, themselves, are approached. That is, pragmatism affects not merely principle, but the interpretation and application of principle in the service of identified results.

Third, pragmatism, then is always both a necessary element of principle and contrary to it as well. The pragmatic is the way one speaks to the techniques of conceptualization and methodologies in action, those concepts/methods necessary to embed principle in context. At the same time, pragmatism is its own ideology, which can bend principle, and its normative elements, to the objectives toward which pragmatism is directed.

Fourth, institutional objectives add a layer of interpretive and normative complexity to the project of principled pragmatism. Objectives add an essential managerial element, an implementary pragmatism to the process of elaborating a treaty through the process of converting principle to objectives, and objectives to policy choices necessary to attain the objectives. (Drucker, Peter F., "The Practice of Management", 1954 (management by objectives theory, goal setting as a basis for choosing a course of action). ) The principle of protection of state authority itself can distort both the underlying normative principles of business and human rights as well as constrain the conceptions/methodologies of pragmatism now bent to both normative objective and institutional one. The choice, for example, or privileging agendas that further state instead of polycentric governance affects both principle and pragmatism. (John G. Ruggie, Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013) p. 78-80. )

Fifth, no principle is neutral. The idea of neutrality, though, remains embedded in discourse. Herbert Weschler might speak to constitutionally neutral principle (See, e.g., Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73:1, 19 (1959) ), but what they reference is likely not the neutrality of the principle itself, but of its application. Yet even equal protection itself can be skewed by ideology—and history. That, after all is the essence of the “affirmative action” debates not just in the United States but in other states as well. (See, e.g., Barry Sautman, “Scaling Back Minority Rights?: The Debate About China’s Ethnic Policies,” Stanford Journal of International Law 46:51-117 (2010); Laura Dudley Jenkins, “Race, Caste and Justice: Social Science Categories and Antidiscrimination Policies in India and the United States,” Connecticut Law Review 36:747-785 (2004); M. Van Chandola, “Affirmative Action in India and the United States: The Untouchable and Black Experience,” Indiana International & Comparative Law Review 3:101-133 (1992)).

All principles are indeed the opposite of neutral—the embrace of a particular set of normative choices. Sixth, normative choices on which principles are elaborated are themselves grounded. But they are grounded in choice not principle. Principles, then are second order premises that are built on the choices made in their construction, elaboration and privileging. Seventh, it follows that pragmatism is not neutral, at least in the sense of the choice of objectives and of the methodologies chosen to attain the objectives. And this squares the circle back to the first point. Eighth, both principle and pragmatism reflect principled choices and color the way in which each constructs the other. Pragmatism is colored by the principle for which it serves as instrument toward an objective in context. Principle is colored by the pragmatism through which it is expressed in operation. And both principle and pragmatism are colored by the principles and pragmatism of the institutions that serve as the vehicles through which principle and pragmatism are elaborated and applied.

To speak, then, of principle and pragmatism, is to acknowledge that both normative and operational constructs are infused with an ideology that guide choices and constrain both principle and pragmatism itself. But this approach remains highly contested as approach and as principle. (Well argued in Penelope Simons, “A Framework Treaty to Regulate Transnational Corporations and Other Business Enterprises: Movimng Forward Strategically,” (Surya Deva and David Bilchitz, eds., forthcoming 2016)). This is not so much tautological but rather an acknowledgement that both principle and pragmatism are two sides of the same coin. One sees that better by flipping the idea around. Assume one starts with objectives—the example, the objective of creating a global legal framework for managing the conduct of multinational corporations. That objective then speaks to principles—the primacy of the state, the authoritativeness of law, the universalism of behavior standards, etc. It also speaks to pragmatism—the desirability to negotiate a treaty, the need to development mechanisms for treaty enforcement, the structures of uniform interpretation, and so on. Principles speaks to normative choice; pragmatism speaks to its embedding in context, to an assessment of the truth or value of principle or beliefs in terms of the success of their practical application. (See, e.g., Charles S. Peirce, “How To Make Our Ideas Clear.” In The Essential Peirce, Vol.1, (N. Houser and C. Kloesel, eds., Bloomington IN: Indiana University Press, 1878/1992), pp. 124-141; discussed in Albert Atkin, “Charles Sanders Peirce: Pragmatism,” in Internet Encyclopedia of Philosophy).

And this is where the political-normative value of pragmatism is meant to be most useful, most pragmatic. It is possible for two multiple sets of values, principles based, communities, to agree to a set of objectives in context, and each to see in that pragmatic choice a fidelity to its own principles. (See, e.g., Aharon Barak, Purposive Interpretation in Law (Sari Bashi, trans., Princeton 2005); Sanford Shane, "Ambiguity and Misunderstanding in the Law", Thomas Jefferson Law Review, 26(1):1 (2002)). The problem acquires added dimension when language as well as conceptual differences are added. (See, Dinal Shelton, “Reconcilable Differences? The Interpretation of Multilingual Treaties,20 Hastings International and Comparative Law Review 20: 611-638 (1997)).   That was the essence of Professor Ruggie’s principled pragmatism: to invert the principles-pragmatism construct, and to begin with objectives which key principles-based political actors (states, MNEs and NGOs) might share in common—in this case the need to establish some sort of structure to (begin) to identify and enforce certain conduct norms for business behavior—and then to work backwards toward principle. The principle of pragmatism now becomes clear—as a process of aggregating the principled pragmatism of all necessary actors in the service of objectives which are privileged over the principles and pragmatic choices of any single actor, as a process of ambivalence in the service of common objectives among communities whose principles and the pragmatism that drives them, are fundamentally incompatible. (Cf. Paul J. Mishkin, “The Use of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action,” 131 University of Pennsylvania Law Review 907 (1983))

Within the context of the UNGP, the objective was the establishment of a structure for disciplining business behavior within a normative conduct structure. For all key actors the resulting structure would move toward a pragmatic embedding of their principles, but could not produce an identity between principle-pragmatism and objective. But it would bring each closer. And to the extent that each continued to participate—a key element of the principles underlying each actor—the more important for each actor to stay true to the aggregate pragmatism represented by the shared objective. The objective, then, becomes the principle, and the pragmatism the interpretive latitude in contextualizing norms within the structures of the objectives. For states that meant abandoning the principle of state monopoly on governance and the singularity of law (the second pillar); for enterprises it meant to acceptance of regulatory governance structures rather than markets as a means of constraining behavior (the first and third pillar); for NGOs it meant the acceptance of governance techniques as an authentic alternative to law and of the internal constitution of enterprises as societally constituted governance organs (three pillars).

It is in this more nuances sense that one can understand the value of principled pragmatism as a lubricant, first to develop the UN Guiding Principles (that is to create the pragmatic structures for the expression of principle), and then to move discussion from the establishment to the operationalization of the UNGP, in June 2014, through the ultimate expression of the pragmatism of principle, an “open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” (U.N. Resolution here). The object of this effort was to cure the deficiencies of the UNGP, and apply principle unencumbered by pragmatism, to produce law to manage enterprises through states.

Yet the drive toward a treaty may well sink on the very shoals of the pragmatism necessary to move from conception to actualization. (See, e.g., John G. Ruggie, “Closing Plenary Remarks, 3rd U.N. Forum on Business and Human Rights,” Geneva Switrzerland Dec. 3, 2014 available . ) The problem focuses on the absence both of a framing principle and of a pragmatism that is principled in the sense of its connection with and fidelity to the conceptions of the framing structures the effects of which constrain pragmatic choice in the face of contradiction or plausible alternatives.

To that end, it is necessary to work from the effects of principle to the conception of the principle itself, and to advance the conception of the treaty by an understanding of the effects as constituted.  That is, the pragmatism necessary for the hard work of assessing and aggregating the specific provisional that will constitute a comprehensive treaty--if it is to be coherent and with fidelity to a grounding set of normative principles--must asses those effects in light of the principles to be advanced.  Sounds easy? Indeed, it is. . . .when the object of effects and object are stable and static.  That is the essence, after all of the contemporary functional analysis that is a bedrock form of understanding systems and extracting principle from its effects.

But where the relationship is dynamic and unsettled, the process becomes far more difficult. That is because one is not assessing the conception of an object through effect.  Instead one is assessing the conceptions that are produced by the arrangement of a large and changing set of factors that may be added or subtracted  from a system, and which, in combination produce a variation of effects that change (sometimes radically) the object. And  the interplay of effect and object can be difficult in the absence of a firm understanding of the effects and its consequences for ordering the object (the founding principles underlying the treaty) and rendering it coherent or incoherent with reference to those objects.  For the treaty elaboration process  one is faced with both the choice of the object and the factors that produce effects that give the object its character.  That produces a condition of choice--in both the character of the object (against which factors causing effects may be measured) and the form and aggregation of those effects causing factors (the specific provisions that make up the treaty). The means employed for the exercise of choice is the foundation of the pragmatic challenge in treaty elaboration. The principles that serve as the the standards against which the value of effects producing factors are measured serve as the principles that guide pragmatism--that is that guide choice among plausible alternatives constructions of a treaty. It is in this sense that one can speak about principled pragmatism--that is the application of standards of value to the choices that must be made among competing choices whose aggregations produce effects that change dramatically the conception of the object that they affect.

The self-reinforcing system of principles based pragmatic structuring fo choice fields can be more easily visualized in the treaty context  in the three tables that follow:

These suggest the importance--for structure and coherence--of the task of distinguishing the plausible principles based approaches to treaty elaboration, and the structural and methodological secondary principles that are then built into  the principles structures.  Deciding among possible principles based structures provides the foundation for coherent assessment of choices among the complex set of provisions that in the aggregate will produce the effects that either advance or undermine these principle structures. One last task is required--the effort to classify the broad spectrum of provisions that together could be embedded in the treaty. The effects of each of these can be judged and their consequences tied to the projects of moving forward a coherent vision for a comprehensive treaty.   That last provides a concrete manifestation of principles based pragmatism in treaty elaboration.

In the absence of a standard of measure, rigorously applied, there is nothing.  Well, that is not true, there is something, but that "something" is a value measure whose standard is found elsewhere--in the power of the stakeholders, in the politics of the object.  In the latter sense, the character of the  comprehensive treaty changes from object (the effects of defines its conception) to effect.  In other words, the treaty itself serves as an effect that can serve as the measure of something else--in this case the power relationships among states, multinational enterprises, international organizations and civil society. The object that is the subject of conceptualization is control of the narrative of enterprise operation  (human rights versus economic wealth maximization), the effects of which can be measured through a number of effects, including the treaty and the UNGP.

What is clear for the moment is that the politics of the drive toward a treaty, and the defense of the UNGP, has produced a mountain of sloppy thinking.  Or better, perhaps, a landscape littered with rhetorical tropes (in the form of academic and policy arguments) that veil both framing principle, the character of choice and its effects, and the principles that may be necessary to assess and choose among alternatives. Sloppiness is a product of a number of important secondary objectives that intermesh with the project of treaty making--some of which have been suggested above--power relationships, control of the narrative, economic viability, the need to access and control mass mobilization for other (perhaps related) aims, and the creation, modification or protection of places in hierarchies of transparency, participation and power. Disentangling these complex webs of objectives now attached to the treaty process, is necessary for clarity of analysis.  But it is unlikely to be effective  to change the behaviors of the key stakeholders in this process.  The separation of the institutional objectives of actors, from the principles that can be advanced through the aggregation of effects factors--and especially the principled discussion of principle, is unlikely to happen soon.  Still, for the analyst, for the psychologist, it should be useful to strip the process of its extraneous elements to assess both the process of treaty elaboration, its construction and fidelity to the values it might seek to advance (and to assess the coherence of these), and to determine the consequences for those principles of the effects producing factors that may be adopted to advance those principles.  To that end, principled pragmatism is the key to the success of the treaty process--but it is also the least likely factor to be understood or employed.

No comments: