The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders
Larry Catá Backer*
Globalization has produced a wealth of writing that seeks to theorize the emerging relationships between states, non-state actors (especially multinational corporations), and international organizations. For law- yers, the relationship among these actors through law is especially meaningful. What has been emerging in recent years with greater clarity is that while the formal structures of the organization of law and its relationship to the state system remains substantially unchanged, the realities on the ground have moved substantially away from these formal structures. The traditional premises that have been used to justify and explain the relationships among states, non-state actors, international organizations, law and governance no longer adequately either explain or justify the actual behaviors and outlooks of these actors. This essay considers the tension between the traditional premises of organizing governance (within and through states) and the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most evident. The analysis starts with the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. Sections III and IV explore the power of ideology in framing analysis in the conception of the reality of self-constitutionalizing organization outside the state and in the theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, normatively autonomous (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.
Our conceptions of the state—and of the character of the legitimacy of law as a product of domestic legal orders—have a profound effect on the way in which theorists, politicians, and lawyers are able to approach the identification of “problem” and offer “solutions.”1 The constitution of the state is often memorialized through documents or understanding of higher law that serves as a barrier between the state and others and between the higher order commands of that order and everything else that might constitute rules of behavior or authority to command. Gunther Frankenburg spoke of these constitutions as embedded in and creating the space within which law, politics, economics and culture may function in a coherent and self-referencing space.2
Michael Walzer3 speaks of the moral standing of states and of the moral presumptions from out of which the political order is founded.
The state is constituted by the union of people and government, and it is the state that claims against all other states the twin rights of territorial integrity and political sovereignty. . . . It is, or it ought to be, determined instead by a morally necessary presumption: that there exists a certain “fit” between the community and its government and that the state is “legitimate.” . . . So long as it stands, however, the boundaries of inter- national society stand with it.4These structures of construction, in turn, serve as a proxy for a complex and deeply embedded ideology of politics—bound to blood and territory—that serves as the foundation of political, economic, social and cultural theory. That is, in fact, how “we” have been acculturated to “see” and “abstract” the reality around “us” in the social space in which we interact.
Yet, “‘constitution’ – like ‘nation,’ ‘state,’ ‘democracy’ and ‘sovereignty,’ – appears as one of the central icons and also one of the most ambiguous ideological structures in the pool of cultural representations of modernity.”5 These conceptions are at base the product of applied ideology.6 States often evidence their ruling ideologies in their core documents—constitutions, germinal judicial opinion, and the like.7 In the social sciences, including the academic study of law,8 the role of ideology9— its deployment in the service of autonomous “fact” deeply camouflaged within the ideological presumptions of the systems in whose service they are deployed10—helps manage the framework within which the conception of “what is possible/what is right”11 is constrained.12
This effect is particularly evident in the way in which it may be applied, without much thought for the effect of underlying ideology, to frame the very question for consideration in this essay. That question will focus on the consequences of an emerging “tension” for settled notions of connection between law systems and the state. This fundamental “tension” arose as the ideological premises on which the state system is organized are challenged by non-state actors. On one side stand a cluster of principles that tie the authenticity and legitimacy of law to its connection to the state, and that presume an identity between state and law. On the other side stand a growing number of non-state actors that are developing increasingly robust functional legal orders through which they operate that appear to destabilize the conceptual order on which the law-state relationship is maintained. That challenge arrays the premises and ideology of the state and the state system against two alternatives. The first is an emerging ideology of a non-state system whose organization, at its limits, might parallel that of the state system, but which exists beyond it.13 The second presents as against those two titans, that is of the state and the non-state actor as organizational centers of law systems, a novel edifice: an emerging recognition of self-constituting transnational legal orders.14 This conflict, and its contradictions, are having a profound effect on law—in concept and application.15
Yet, currently, this very construction is possible only within the con- fines of the core presumptions of state ideology.16 These ideological blinders perversely make it difficult to see fundamental shifts except within the premises and analytical constraints of that ideology. In this case it produces irony—the need to reshape reality to suit the ideological predilections of a system increasingly real only in the past tense, producing a tendency toward false causation17 and conceptual confusion.18 These presumptions bend the emerging realities into the structural presumptions of a global system grounded in the state as the highest form of coercive (and therefore political) power, legitimated by a set of presumptions about its use.19 It assumes the legitimacy of the hierarchy of power in which organizational and governance capacity proceeds out from the state, delivered in appropriate form (law undertaken within global Rechtsstaat principles)20 and exercised under the supervision of instrumentalities of the political or administrative branches of the state apparatus,21 or those of communities of states organized in international bureaucracies.22
Such power can be ceded upward (to institutional creatures that aggregate collections of states international organizations)23 or downward (into corporations or aggregations of civil society actors, religious organizations and the like that are understood to exist as a subordinate incarnation of the state).24 It is exercised through methods (contract, custom, and the like) that are, by their very definition, inferior in status, form and effect to the forms (i.e. law, regulation, etc.) reserved to the state and exercised only under the supervision of and vindicated through the judicial apparatus of the state.25 Indeed, in some cases, the state system finds intolerable the idea of assertions of governance power in aggregated form outside of the body of the corporate organization of the state itself.26 Consequently, all power falling outside of this framework can be suppressed as illegitimate and as a threat to the global social order. In a way that reflects the scientific development of “harmonious society” principles of Chinese political organization,27 the ideological presumptions of the state system permit the construction of a space for outlaw enterprises whose organizations, methods and norms fall outside the law; that is, they fall outside the organizational parameters of hierarchy and control centered in the state.28
It is in this constructing sense that much of the debate about the rise of governance orders outside of the state is framed. Its object is either to recognize the rise of such orders but then tame them within the hierarchical ordering systems of the state, or to identify their methods of governance and then seek to transform them, or vouch for them as law. Much like efforts to include marriage between people of the same sex within traditional marriage systems, the transnational governance debate at times seems singularly focused on proving that such systems are either just like or compatible with the state system (something, for example, at the heart of recent efforts to incorporate rules for sovereign wealth funds)29 or that they can be made so by either broadening the current understanding of important terms—like law—or characterizing these systems as somehow still attached to the state.
The “tension,” then, which is usually identified as the heart of the conflicts both between state and private actors and among the two and the emerging “transnational system” (understood perhaps best in its methodological context),30 is grounded in the need to domesticate governance rules outside the state, or to bring their methods more conventionally within the methodological hierarchies of rulemaking. In either case, the state remains the supreme legitimating organization, and the law remains the most legitimate expression of binding authority. At the heart of the tension is the issue of self-constitution.31 Within the presumptions of state ideology, self-constitution is impossible, except as a political and perhaps religious act.32 All tension disappears when private and transnational systems bend their knee to the state, even as the state might be required to bend a bit, like the feudal French monarchs, in acknowledgment of the now ceded (and thus regularized) authority of its vassals.
This essay considers the tension between public and private governance in the emerging transnational legal order. The focus of examination is the corporation, where this tension is most evident. The analysis starts with the greatest structural impediment to the consideration of the tension between public and private in the transnational ordering of the corporation—the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, which is the object of Section II. More importantly, the exposure of the ideology of the state reveals the extent to which it can bend the objectives of analysis from one that follows reality on the ground to one that takes and bends that reality around the state. That bending can produce substantial effects on the structure of de- bate and the possibilities for understanding institutional changes in behavior that quite directly challenge the normative presumptions of the privileged ideology. This effect can be exaggerated when changes appear to threaten the hierarchies built into governing ideologies.
Sections III and IV explore the power of ideology in framing analysis in Gunther Teubner’s conception of the reality of self-constitutionalizing organization outside the state and in Peer Zumbansen’s excellent theorizing of transnational law as a method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relation- ships are understood and the objectives of analysis are formed. Section V posits an alternative analysis, freer (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended. It serves as a foundation for a manifesto of law beyond nation and law.33
* W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University, and is the incoming chair of the Pennsylvania State University Faculty Senate. The author may be contacted at firstname.lastname@example.org. The essay was originated in a Global Governance Debate of the Robert Schuman Centre’s Global Governance Programme (Euro- pean University Institute) with Professor Peer Zumbansen (Osgoode Hall, York University, Toronto, Canada) on the topic “Tension Between Public and Private Governance in the Emerging Transnational Legal Order,” Florence, Italy, April 16, 2012. My thanks to my research assistants Robert Marriott (PSU Law 2013) and Angelo Mancini (PSU Law expected 2017) for their usual excellent contributions.
1. There is an orthodoxy in matters of both the idea of the constitutional state and the structures for the expression of state power and control through law that is socialized especially in lawyers and those who perform services within and for government. “Never before has there been such demand from courts, lawyers and constitution-makers in a wide range of countries for comparative legal analysis. And never before has the field been so institutionalized . . . .” ROSALIND DIXON & TOM GINSBERG, Introduction, in COMPARATIVE CONSTITUTIONAL LAW 1–17 (Tom Ginsberg & Rosalind Dixon eds., 2011). This orthodoxy extends to international law as well, especially as it intertwines with orthodox consensus on the premises of the constitutional systems of domestic legal orders. “Proceeding from the concept of higher law, comparison has to deal with the related prescriptive aspects of constitutions as an instrument of governance and government allocating, balancing, and controlling political power, as well as a charter laying down the ground rules for social conflicts.” Gunter Frankenberg, Constitu- tion as Law, Instrument and Culture, in THE CAMBRIDGE COMPANION TO COMPARATIVE LAW 171, 172 (Mauro Bussani & Ugo Mattei eds., 2012). And it is also a foundation for the self-conceptions of international law and order. See, e.g., ERNST B. HAAS, BEYOND THE NATION STATE: FUNCTIONALISM AND INTERNATIONAL ORGANIZATION (1964); J. Samuel Barkin & Bruce Cronin, The State and the Nation: Changing Norms and the Rules of Sovereignty in International Relations, INT’L ORG., Winter 1994, at 107, 107–30 (1994). Its pedigree is long and quite selectively privileged to support the core notions that lend themselves to an understanding of the organization of power at the apex of which is the state, which expresses its most authoritative commands through law, including the law creating the administrative mechanisms that regulate the daily lives of legal objects. See, e.g., MICHAEL KEATING, PLURINATIONAL DEMOCRACY: STATELESS NATIONS IN A POST-SOVEREIGNTY ERA (2004).
2. He explains:
In tracing and mapping the development of modern constitutions, and with some additional modeling, one may come up with four models defined by a distinct basic structure: constitution as contract (including social contract), manifesto, program, and law. . . . One should not place too much weight, however, on this analogy, as these archetypes rather than elucidating a “constitutional unconscious” merely capture and shape the transnational flow of constitutional imagination and the practice it informs. Thus, the archetypes qualify as specimen for copies and variations.Gunter Frankenberg, Comparing Constitutions: Ideas, Ideals, and Ideology—Toward a Layered Nar- rative, INT’L J. CONST. L., July 2006, at 439, 451–59.
3. Michael Walzer, The Moral Standing of States, PHIL. & PUB. AFF., Spring 1980, at 209, 209–29.
4. Id. at 212.
5. Frankenberg, supra note 1, at 171.
6. See LOUIS ALTHUSSER, LENIN AND PHILOSOPHY AND OTHER ESSAYS 85–126 (Ben Brewster trans., 2001); ROBERT PAUL RESCH, ALTHUSSER AND THE RENEWAL OF MARXIST SOCIAL THEORY passim (1992); Louis Althusser, Idéologie et appareils idéologiques d’État (Notes pour une recherche), LA PENSÉE 151 (1970).
7. In China, see, for example, Constitution of the Chinese Communist Party ( 产中国党共章程 ) (1969) (China), and State Constitution of 1982, as amended ( 中华人民共和国宪法) (1982) (China). In the United States, the U.S. Constitution and, for example, Marbury v. Madison, 5 U.S. 137 (1803). In the U.K., among others, Magna Carta (1215) (England), the Bill of Rights of 1688 ch. 2, 1 Will. and Mar. Sess. 2 (1689), and the Act of Settlement, 12 & 13, Will. 3 c. 2 (1701).
8. For a germinal discussion, still relevant, see generally, LON L. FULLER, THE MORALITY OF LAW (New Haven: Yale University Press, 1964); N.S. Timasheff, What is ‘Sociology of Law’?, 43 AM. J. SOC. 225 (1937). See also Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805 (Richard Terdiman trans., 1987).
9. Cf. Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276 (1984).
10. See generally JUERGEN HABERMAS, KNOWLEDGE & HUMAN INTERESTS (Jeremy J. Shapiro trans., 1971). Cf. FLORIAN MENZ, Manipulating Strategies in Newspapers: A Program for Critical Linguistics, in LANGUAGE, POWER AND IDEOLOGY: STUDIES IN POLITICAL DISCOURSE 227– 50 (Ruth Wodak ed., 1989).
11. Brian Leiter provides an intriguing effort around ideology that itself, through its proffer of legal positivism, tends to expose the underlying ideology of the search for a non-ideological concept of law. See Brian Leiter, Marx, Law, Ideology, Legal Positivism, 101 VIR. L. REV. 1179 (2015). Cf. Friedrich Nietzsche, The Four Great Errors, in TWILIGHT OF THE IDOLS, OR, HOW TO PHILOSOPHIZE WITH A HAMMER (Duncan Large trans., 2009).
12. See, e.g., GUNTHER TEUBNER, LAW AS AN AUTOPOIETIC SYSTEM (Blackwell 1993).
13. See, e.g., GUNTHER TEUBNER, CONSTITUTIONAL FRAGMENTS: SOCIETAL CONSTITUTIONALISM AND GLOBALIZATION (Martin Loughlin, John P. McCormick & Neil Walker eds., 2012).
14. There has been a substantial amount of writing on this idea of regulatory systems beyond the traditional law-state nexus. See, e.g., PAUL SCHIFF BERMAN, GLOBAL LEGAL PLURALISM: A JURISPRUDENCE OF LAW BEYOND BORDERS (2012); GRALF-PETER CALLIESS & PEER ZUMBANSEN, ROUGH CONSENSUS AND RUNNING CODE: A THEORY OF TRANSNATIONAL PRIVATE LAW (2010); TRANSNATIONAL LEGAL ORDERS (Terence C. Halliday & Gregory Shaffer eds., 2016); Lawrence Friedman, Borders: On the Emerging Sociology of Transnational Law, 32 STAN. J. INT’L L. 65 (1996).
15. “The nonchalance with which the emergence of the private supply of law has been endorsed is surprising. This is probably because, in the process of determining what constitutes law, excessive attention has been traditionally devoted to the recipients of a given rule, while scant attention has been paid to its suppliers.” Arianna Pretto-Saakmann, Private Suppliers of Law: Diversity for Lawmakers, 30 VT. L. REV. 921, 936 (2006). See Marc Amstutz, Métissage: On the Form of Law in World Society, in ZEITSCHRIFT FUR VERGLEICHENDE RECHTSWISSENSCHAFT 336–60 (2013).
16. See, e.g., Immanuel Wallerstein, The Inter-State Structure of the Modern World System, in INTERNATIONAL THEORY: POSITIVISM AND BEYOND 87–107 (Ken Booth et al. eds., 1996); Yale H. Ferguson & Richard W. Mansbach, Political Space and Westphalian States in a World of Polities: Beyond Inside/Outside, 2 GLOBAL GOVERNANCE 261, 261–87 (1996).
17. Cf. Nietzsche, supra note 11.
18. See, e.g., Nils Jansen & Ralf Michaels, Private Law Beyond the State?: Europeanization, Globalization, Privatization, 54 AM. J. COMP. L. 843, 843–90 (2006).
19. See Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 PENN ST. L. REV. 671, 671–732 (2009).
20. Sometimes Rechtsstaat notions are more myth than reality, gesture than substance, espe- cially in the modern administrative state, where the connection between the polity and the sources of rules is tenuous at best. See Daniel R. Ernst, Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932, 23 STUD. AM. POL. DEV. 171, 171–88 (2009). Europeans understand this at the level of European Union law-politics as the democratic deficit. See, e.g., Kevin Featherstone, Jean Monnet and the ‘Democratic Deficit’ in the European Union, J. COMMON MKT. STUD., June 1994, at 149, 149–70.
21. Criticized in NICO KRISCH, BEYOND CONSTITUTIONALISM: THE PLURALIST STRUCTURE OF POSTNATIONAL LAW (2010).
22. See, e.g., JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS (2006);
Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, L. & CONTEMP. PROBS., Summer/Autumn 2005, at 15.
23. See, e.g., Armin von Bogdandy & Ingo Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers, in INTERNATIONAL JUDICIAL LAWMAKING: ON PUBLIC AUTHORITY AND DEMOCRATIC LEGITIMATION IN GLOBAL GOVERNANCE 3, 3–33 (Armin von Bogdandy & Ingo Venzke eds., 2012); Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal Interna- tional Organizations, 42(1) J. CONFLICT RESOL. 3, 3–32 (1998).
24. See, e.g., HARVEY FEIGENBAUM, CHRIS HAMNETT & JEFFREY R. HENIG, SHRINKING THE STATE: THE POLITICAL UNDERPINNINGS OF PRIVATIZATION 5–34 (1998); Saskia Sassen, The State and Globalization, in THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE 91–112 (Rodney Bruce Hall et al. eds., Cambridge 2002). For a criticism from the perspective of the protections of public law, see, for example, James M. Cooper, The Rise of Private Actors Along the U.S.- Mexico Border, 33 WIS. L.J. 470, 474–88, 502–10 (2015); Robert Koulish, Blackwater and the Privatization of Immigration Control, 20 ST. THOMAS L. REV. 462, 466–76 (2008); Tally Kritzman-Amir, Privatization and Delegation of State Authority in Asylum Systems, 5 L. & ETHICS OF HUM. RTS. 194, 194–215 (2011); Harold J. Sullivan, Privatization of Public Services: A Growing Threat to Constitutional Rights, 47 PUB. ADMIN. REV. 461, 461–67 (1987).
25. See, e.g., Larry Catá Backer, Multinational Corporations as Objects and Sources of Trans- national Regulation, 14 ILSA J. INT’L & COMP. 499, 499–523 (2008).
26. See COOPERATIVAS Y SOCIALISMO: UNA MIRADA DESDE CUBA (Camila Piñeiro Har- necker, ed., Editorial Caminos 2011).
27. Harmonious Society, SEVENTEENTH NATIONAL CONGRESS OF THE COMMUNIST PARTY OF CHINA, (Sept. 29, 2007), http://english.people.com.cn/90002/92169/92211/6274603.html; Larry Catá Backer, Studying the “Higher Law” of Scientific Development ( 科发学展观) in Chinese State-Party Constitutionalism, LAW AT THE END OF THE DAY (July 5, 2010), http://lcbackerblog.blog- spot.com/2010/07/studying-higher-law-of-scientific.html.
28. Larry Catá Backer, The Drama Of Corporate Law: Narrator Between Policy And Law, 2009 MICH. ST. L. REV. 1111, 1146–64 (2009) (reviewing DAVID A. WESTBROOK, BETWEEN CITIZEN AND STATE: AN INTRODUCTION TO THE CORPORATION (2007)).
29. Generally Accepted Principles and Practices: “Santiago Principles,” INTERNATIONAL WORKING GROUP OF SOVEREIGN WEALTH FUNDS (Oct. 2008), http://www.iwg- swf.org/pubs/eng/santiagoprinciples.pdf.
30. Cf. Peer Zumbansen, Why Global Law is Transnational: Remarks on the Symposium Around William Twining’s Montesquieu Lecture, 4 TRANSNAT’L LEGAL THEORY 463, 463–475 (2013).
31. Gunther Teubner, Fragmented Foundations: Societal Constitutionalism Beyond the Na- tion State, in THE TWILIGHT OF CONSTITUTIONAL LAW: DEMISE OR TRANSMUTATIONISM? (Petra Dobner & Martin Loughlin eds., Oxford Univ. Press 2010).
32. Though even here, the autonomy of religion as against political acts remains in doubt. Consider in this context the furious effort to avoid recognition of some strains of Islam as too violent or intolerant to be recognized as “legitimate” expressions of religious will. These ideological blinders were much in evidence as changes in religious expressions were conflated with Western political expression to change its complexion from religious to political expression. See, e.g., Peter W. Rodman, Policy Brief: Co-opt or Confront Fundamentalist Islam?, MIDDLE E. Q. (1994), http://www.mefo-rum.org/201/policy-brief-co-opt-or-confront-fundamentalist.
33. See Larry Catá Backer, Remarks made at the Launch Symposium of the Dickson Poon Transnational Law Institute, Transnational Law: What’s in a Name?, BEYOND NATION AND LAW: A MANIFESTO: BACKER-IN-LAW, http://www.backerinlaw.com/Site/wp-content/uploads/2016/05/Be- yondNationLawManifesto.pdf.