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Governance Without Government or Government With the State? ************************************************* Larry Catá Backer W. Richard and Mary Eshelman Faculty Scholar and Professor of Law Professor of International Affairs Pennsylvania State University 239 Lewis Katz Building
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Governance Without Government or Government With the State? ************************************************* Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar and Professor of LawProfessor of International Affairs Pennsylvania State University 239 Lewis Katz Building University Park, PA 168021-814-863-3640 lcb11@psu.edu
When I was young I wanted to present answers. Now I am grateful when I can understand and formulate questions. no answers; no assurances only questions about the fundamental ordering of human political organization This presentation critically considers the ideology of the state and its relationship to the way in which we see the world and the possibilities for governance beyond the state. For that purpose I will move from a focus on taxonomies to a focus on ideology. Move from assessing the world as we find it to assessing the reasons we find understand the world the way we do.
Benito Mussolini once declared: “…for the Fascist, everything is in the State, and nothing human or spiritual exists, much less has value, outside the State. In this sense Fascism is totalitarian, and the Fascist State, the synthesis and unity of all values, interprets, develops and gives strength to the whole life of the people.” This idea, shorn of its fascist ideology, remains both popular and foundational for the functioning of the state system and the international public-law frameworks which it supports.
But things change! The diffusion of power in the wake of globalization has also revived the recognition of governance authority beyond the state and its formally constituted governance apparatus. Globalization is said to have produced movements toward governance that is based on functionally differentiated transnational public systems that operate above the state. --produced a governance framework environment marked by a fracturing and diffusing of power beyond political actors. Though the state remains very much alive and continues to be powerful within the ambit of its authority, its claim to a monopoly of governance power, either directly or through public organs at the supra- or infra- national levels, is no longer plausible.
This chapter provides an overview of the extent of “governance without government” outside the framework of the state system of public law. --suggests the contours of the projection of governance power from outside the territory of states, the possibility of governance without government --perhaps more radically that government itself can exist without the state, projecting its governance into states. The chapter posits that the organization of governance does not require a territory from which to project governance power beyond territorial boundaries.
FIRST: provide an overview of the extent of contemporary reticence to embrace any “governance without government” framework that strays too far from the all-encompassing embrace of the state system and public power. This section suggests that this conversation about the limits of government without governance can be usefully organised into five great currents: (1) as illegitimate; (2) as a species of devolution; (3) as management; (4) as mimicry; (5) as a component of a larger coherent regime producing something of a public-private transnational system. --The examination suggests that, for all of its innovation, though, much in the academic literature still situates governance very much “in” the State.
SECOND: proposes the contours of the constitution of such a governance framework beyond both government and state. --Once the identity of state and government is displaced, the possibility of the governmentalisationof non-state sectors become visible - not as some sort of appendage to the state, or even, perhaps, as a component of a complex weaving of regimes that produce norms, but of government in their own right. --Two examples are offered, each of which suggests an institutionalisation of hard governance, of government, in the absence of the state. (1) The self-regulating corporation; (2) Soft law public-private governance systems—the OECD framework. Conclusion: The territorial effect of governance will shift from one centred on the state and the projection of its law, to one de-centred from the state and concerned with the projection of governance rules of non-state actors into states and other non-state organs.
The triumph of the state Between the 16th and 21st centuries states transformed themselves into enterprises through which control, usually to some set of ends, usually described as something like “the common good” or the “general will”, could be asserted through a government over a defined physical territory. Territory, jurisdiction and competence were marked by the same borders. To go beyond physical boundaries was to extend competence beyond its “natural” limits among equals, OR to assert necessary control over inferior competences (states). To consider a government (or governance) outside the state was incomprehensible within a global system founded on the state in which even civil society was state centred.
The Challenge of Globalization: From law back to governance But the state remains potent Complex matrix of field boundaries --law versus governance --state versus non-state enterprises Is it possible to conceive of competence beyond territory, and an extra-territoriality in which territory is not measured by the metes and bounds of political spaces?
The state remains very much alive and continues to be powerful within the ambit of its authority, --but its claim to a monopoly of governance power, either directly or through public organs at the supranational or infra-national levels, is no longer plausible. --This environment nurtures functionally-differentiated communities of actors who, together, form closed self-regulating and autonomous governing systems that are not centered on any state, although they are, perhaps, ultimately connected to states. These are governance systems at the heart of what Gunther Teubner describes as polycentric globalization --not merely the sum of the privatisation of governmental functions, common in assessments of polycentricitywithin the European Union governance framework, but the substitution/supplementing of state authority by private organs, self- contained and self referential, in which the state plays an incidental role --These play against loyalty if not nostalgia for the state.
The literature about the limits of governance without government
This literature --reflects both the power of the state paradigm in governance analysis and --the recognition that the core assumptions of the paradigm may not reflect the whole of reality anymore. Usefully divided into five basic categories: -as illegitimate; -as a species of devolution; -as management; -as mimicry; and -as hybridity, a component of a larger coherent transnational system.
Illegitimacy arguments: --field boundary protective: only formal law systems may be considered law -- governance without government serves to destabilize important values that are best protected in conventionally organized states through democratically-accountable governments -- lack the self-consciousness and positivist bent of properly constituted governments and non-governmental institutions with pretensions of governance. --it is technique and not system: “if one understands global private law as a set of routinized ways of doing knowledge work, then its relationship to state law becomes far more complicated and ambiguous.”
Devolution arguments -- posit the possibility of non-state governance, but only at the instance of the state and only when it is “borrowed.” -- suggest an essential role for the state in the organization and enforcement of non-state governance systems; a species of privatization. --another version is power sharing: the state shares authority (usually through international organizations) with non-state actors (so-called re- inventing government) --yet another; uncontrolled growth in the shadow of hierarchy (can’t stray too far because these systems require the power of the state to function.
Management arguments --takes the power sharing premise as its starting point -- characterized by the substitution of public-private partnerships, in which the role of the state becomes more managerial and less regulatory, for devolution models. --may take as model the premises underlying markets based regulation of global business. --the state as enabler. --Governance is not so much about the absence of government as it is about a shift in the techniques of government from command to management --focus on techniques: monitoring, transparency, process. --Foucault's “disciplines and governmentality --Grounded in notions of division of labor.
Mimicry --one can re-construct the systems that one manages so that such systems become easier to work with. --This movement towards replication tends to use the state system, or aspects of its governmental form, as the template through which non- governmental or international institutional systems are deployed. -- grounded in a belief that non-state governance elements acquire legitimacy only as and to the extent that these governance systems mimic the legitimacy-garnering forms of states. --Is Global Administrative Law (GAL) initiative mimicry? -posits an increasingly discernible “global administrative space. --constitutionalization of non-state space, but one necessarily dependent on the state. --transitory element: governance will evolve to government within state system.
Component of a larger coherent transnational system. -- The focus here is on the structural coupling: the communication and symbiosis of systems that together produce regimes of governance, which, in turn, produce a variegated corpus of rules that bind particular actors or resolve particular problems. --Centers on norm creation itself - when and how norms are recognised as law: -hybridity in the construction of variegated multi-dimensional governance orders within globalization and state systems working in tandem -Not so much polycentricity as INTERNAL LAYERING. A layer cake you can consume all at once -- resolve the tension between legality and legitimacy inherent in the authority/affectedness (formal/functional) paradox --best articulated as rough consensus and running code.
The academic literature re-inforces loyalty to the state, and to governance that either flows from the state, through or to it. -- Both lawyer and legal academic play an essential role in the social reproduction of this structure But is it possible to point to systems of government that have consequentially achieved escape velocity from the state (and law systems) or its proxies at international level, and which thus derive their normative structures and substance from a source other than the state (through its government)? --maybe --That brings us back to globalization and its corrosive effects of territorial borders.
The realities of globalization have created a discursive space bounded by the framing principles of governance without government, as a “condition or assemblage of conditions under which the evolution of things proceeds”. These “boundaries of discourse” represent new modes of norm creation binding on individuals and entities, that do not intrude on the authority of the territorially-bounded state to construct government. But it also suggests that where the framing presumption posits an identity between state and government, then the possibility of governance without government also implies the possibility of government without the state. Governance, then, not only serves as a signifier of a space that exists outside of the state-government master construct, but also in intimate connection with it.
This governance framework is recognized in autonomous non-state governance communities. --It is grounded in those characteristics that are essential to government - (1) autonomy, (2) self-constitution, (3) a defined scope of regulatory authority and (4) a power to discipline members within the regulatory framework created.
The characteristics of a new form of “conventional” system of governance without government/government without a state that is now emerging can be generalized within: (1) the common governance characteristics of the self-regulating corporation, and the corporation that can assert regulatory authority over internal systems of supply-chain governance created by large multinational enterprises. (2) the emerging system of governance under the OECD’s Guidelines for Multinational Enterprises that serve to provide a basis for the self-constituting of economic organizations beyond the normative orders of states.
The self and supply chain regulating Corporation: -- regulatory autonomy centers on the ability of firms to avoid regulatory systems distasteful to it. By carefully choosing the place, form and method of operation, it can effectively decide the manner in which it will be regulated. States may legislate, but the enterprise will submit to those regulations only to the extent that it is either unavoidable or desirable (profitable). -- Corporations can also regulate others; with respect to the control of the global systems of supply chains, the rise of self-referential governance communities focused on the regulation of the forms of behavior of multinational corporations and their suppliers can be understood to function like self-contained non-state regulatory environments in which the state plays a secondary role.
Corporations and Networks of Soft Law Systems—The OECD System --it is possible to suggest that a governance space is being constructed through networks of soft law systems through complex partnerships between states, international organisations which serve both them and global actors, and the global actors that form the core of the regulatory community that is “spaceless” in the sense that it is unconstrained by physical territory. -- clearest example is drawn from the recent work of the Organization for Economic Co-operation and Development’s (OECD) National Contact Point system for the enforcement of global soft-law frameworks that radiate out from the 2010 OECD’s Guidelines for Multinational Corporations (GMC). -- illustrated in the OECD’s UK National Contact Point’s decision in Vendanta.
--This chapter proposes that what is important for our modernity is the governmentalisation of the non-state actors. -- globalization has produced the possibility of constructing governance units that are bounded by territory, but the prime referent is no longer geography, --coherent governance outside the state also suggests a corollary: the possibility of government without a state. --it is in these dual senses that one might understand the way in which the state recedes from governance. -- Governance without government thus describes systems of regulation that have a source outside the state, it also describes a system of government without the state. Thus constituted, these systems can exist autonomously from states and in constant co-operation with states in order to produce regimes of rules that more effectively bind individuals within the territory of a state and across national territories - extra-territoriality for modern times!
