Should we be worried about global quasi-constitutionalization?
By Grahame Thompson
Have we seen a potentially new form of global governance quietly emerging over the last decade or so, one that is establishing a surrogate and informal process of the constitutionalization of global economic and political relationships, something that is creeping up on us almost unnoticed? This issue of ‘global constitutionalization’ has become an important topic of analysis over recent years. Its development is most obvious in the case of business and corporate activity but I suggest it has a much wider provenance and is threatening to encompass many other aspects of global governance like human rights, security and warfare, environmental regulation, and more besides. One difficulty in analyzing this trend is to define its characteristics and parameters since it represents a rather loose configuration, one that is not easy to pin down.
Quasi-constitutionalization is a surrogate process of constitutionalization, not a coherent program with a rounded set of outcomes but full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves – almost an accidental coming together of elements. So it does not amount to a ‘system’ in any conventional sense. This means it marshals together a complex bricolage of resources: material techniques and devices like models, documents, court decisions, legal statutes and treaties; institutional orders like legal apparatuses, bodies and governance organizations; and discursive expertise, theoretical knowledges and instruments. But it is a process nonetheless: it is building norms of conduct, rule-making, and a distribution of powers in a ‘global polity’.
I call this a quasi-constitutional process because while it resembles a constitution in many respects it is difficult to transpose constitutionality directly into an international environment where there is no single competent authority that might foster or enforce such a constitution.
In turn, this connects to various senses of the juridicalization of international corporate and other affairs, where new or revitalized types of law are increasingly being brought into play as the mechanisms for resolving disputes or organizing governance. This involves new forms of public law, private law, customary law, regulatory and administrative law, all of which are rapidly evolving in the international arena alongside traditional international law. Institutions that embody such a process are the WTO, various agencies of the UN, the OECD, Bilateral Trade and Investment treaties, and a huge number of standard setting and benchmarking organization many of which are private in character but which both claim and exercise a public power at the global level. This is the site of a reinvigorated private law and private authority operating in the international domain. In the case of companies, they are increasingly adopting the language of global corporate citizenship to characterize their activity as civic actors in this evolving quasi-constitutional environment, and they are being addressed as such by bodies like the World Economic Forum and the UN’s Global Compact. Bilateral trade and investment treaties have mushroomed over recent years. Investment treaties are an example of global private administrative law in action.
On the other hand we have the OECD in its capacity as sponsor of socially responsible conduct by multinational companies (Guidelines for Multinational Enterprises) which has become an instrument of global public administrative law. John Ruggie’s recent attempt to introduce a comprehensive regime of human rights into the business world (the UNs Protect, Respect and Remedy Framework) is another case in point of the creeping quasi-constitutionalizing process.
But a major issue of concern is whether quasi-constitutionalization leads to the Rule by Laws (RbLs) rather than the Rule of Law (RoL) in the international system? The RoL may be being given away as RbLs replace a comprehensive system of democratically constituted judicial review, which cannot happen in the case of global quasi-constitutionality.
Thus in this evolving environment, instead of the rule by elected and accountable political officials we are seeing the emergence of rule by lawyers and by aged judges and law professors in international commercial and other matters. These are the actors that are leading the process of institutional rule-making. Public and particularly private elites are making-up the rules as they go along, arbitrarily and on an ad hoc basis. I call this a rule by a new self-appointed Guild of Lawyers on the one hand and a new Clerisy of the Law on the other. In effect, we are giving up any form of democratic legitimacy and accountability with this introduction of global quasi-constitutionalization.
Grahame F. Thompson is Professor of Political Economy at the Copenhagen Business School (Denmark), and Emeritus Professor at the Open University (England). His research and teaching interests have been in international political economy matters, and globalization; with a recent focus on the role of business organization in the context of international economic matters. He is the author of The Constitutionalization of the Global Corporate Sphere? (OUP, 2012).
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Image credit: Cover of U.S. Constitution by giftlegacy via iStockphoto.