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Governance Without Government or Government Without the State: An Inquiry. (March 2012).

Panel: From Government to Transnational Regulatory Governance.  Conference: Transnational Private Regulatory Governance:  Regimes, Dialogue, Constitutionalization.  Fifth Critical Research Laboratory in Law and Society Workshop.  Osgood Hall Law School, York University, Toronto, Ontario, Canada, March 1, 2012.

PowerPoint PRESENTATION HERE: Governance Without Government or Government with the state 2-28-12

Associated Article: Backer, Larry Catá, Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems , in Beyond Territoriality:  Transnational Legal Authority in an Age of Globalization (Günther Handl and Joachim Zekoll Editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, forthcoming 2012).


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. Globalization has provided 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.  It suggests the possibility of a public law without public organs, and the constitution of governance beyond both government and state. The chapter first provides 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, that is, of the possibility that communities can come together and share a governance structure without the prior requirement of a state or of the government that serves as the incarnation of the state.  The examination suggests that, for all of its innovation, though, much in the academic literature still situates governance very much “in” the State.  The chapter then 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 governmentalisation of 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.