{"id":1532,"date":"2018-05-13T18:46:23","date_gmt":"2018-05-13T18:46:23","guid":{"rendered":"http:\/\/www.backerinlaw.com\/Site\/?page_id=1532"},"modified":"2018-05-13T19:03:57","modified_gmt":"2018-05-13T19:03:57","slug":"how-my-work-fits-together-an-unfinished-and-partial-attempt-at-producing-coherence-out-of-a-life-time-of-work","status":"publish","type":"page","link":"https:\/\/www.backerinlaw.com\/Site\/manuscripts\/how-my-work-fits-together-an-unfinished-and-partial-attempt-at-producing-coherence-out-of-a-life-time-of-work\/","title":{"rendered":"How My Work Fits Together: An Unfinished and Partial Attempt at Producing Coherence Out of a Life Time of Work"},"content":{"rendered":"

Globalization has been changing the structures and discursive frameworks of governance. The post 1945 globalization frameworks had the modest goals of reducing the risk of war<\/em> through international trade and political networks, increasing the authority of law<\/em> to develop global legal barriers to violent conflict and the protection of individuals, and institutionalizing systems<\/em> of consensus based global normative values. By 2016, it is clear that these goals were exceeded far beyond the imagining of those architects.\u00a0 The systems for the regulation of trade, finance, human rights, and the relations among peoples and states that have emerged since then have transformed the old political order.\u00a0 Globalization has transformed the state and its constitutional ordering, limiting the power of states to make war on their own people or their neighbors. Globalization has reshaped the societal sphere and its disciplinary role in ordering behavior. Societal organizations now have greater authority to shape the rules that govern production chains and their stakeholders. \u00a0Globalization has transformed the enterprise from a dependent to an autonomous governance organ both within and outside the state. Globalization restructured the international sphere as both a source of normative value and of regulatory governance in its own right. International organizations have become an important source of rules and, indirectly, of law.<\/p>\n

Globalization has transformed the relationship between the individual and all of these organs of aggregated power as global discourse has moved from the protection of the state to the human rights of individuals. The response to the collapse of the Rana Plaza factory building, to the construction of soccer stadiums under conditions of labor exploitation, or to the financing of the palm oil industry in East Asia; each of these suggest the ways in which the transformation of state, societal sphere, enterprise, international organs and the individual now intersect in regulatory responses that burst through the carefully constructed field boundaries of law and between law, politics and economics. But they also suggest the way that these transformations are built around a new normative center\u2014the ordering principle of human dignity that is understood as rights inherent in the individual and obligations\/responsibilities at the core of the legitimacy of institutional organizations. I propose to examine the evolution of these regulatory responses and their theoretical ordering.<\/p>\n

My reseach examines the modalities of this convergence of global regulatory governance trends around the conception of human dignity as rights inherent in the individual, as duties of states, and as responsibilities of other regulatory organs. I try to weave together emerging strands of governance to produce a better understanding of the structures of governance that have arisen as a product of globalization, the threats to that development, and the way that the evolution of the rise and regulation of corporate social responsibility (and especially its normative basis in human rights) provides its most important expression. The object is to explain the new governance structures and the ways in which they order human rights from out of the context of economic activity.<\/p>\n

My research proceeds from facts to practice to theory, and then back again to practice and facts. The object is to ground theory in facts and to shape it so that it is useful to those charged with operationalizing the principles that structure and constrain our economic, political, social and religious systems to more effectively move that work forward.\u00a0 My prior work points to a framework for conceptualization and the scope of the enterprise. The approach is guided, to some extent, by a grounding in semiotics (Lawyers Making Meaning:\u00a0 The Semiotics Of Law In Legal Education II<\/em> (Springer, 2013) (with Jan M. Broekman)) and a political\/cultural approach to law and politics (\u201cThe F\u00fchrer Principle of International Law,\u201d Penn State Int\u2019l L. Rev.<\/em> 21(3):509-567 (2003)) that suggests the even in the public sphere the state has been subsumed within larger systems (\u201cIdeologies of Globalization and Sovereign Debt,\u201d Penn State Int\u2019l L. Rev. <\/em>24:497-561 (2006)). At its foundation is the premise that law and governance are as embedded in larger governance systems as states have become subsumed within those systems. Neither is limited to those products of statutes and court cases, or even of administrative regulation, that historically defined the borders of a lawyer\u2019s craft in the way that territorial borders defined the limits of public political power. Law and governance becomes as much a political and cultural project as it is a formal legal one (\u201cChroniclers in the Field of Cultural Production.\u201d B.C. \u00a0Third World L.J.<\/em> 20:291-343 (2000)).<\/p>\n

The state centered basis of national organization has given way to international normative constraints that check even the will of a polity to order itself as it desires (\u201cFrom Constitution to Constitutionalism,\u201d Penn State L. Rev.<\/em> 113(3):671-732 (2009)). The conventional singular system of public law grounded in a state system characterized by a strongly interlinked network of domestic legal orders managed through the evolution of meta-norms generated through the institutions of the community of nations is now being challenged by a governance order better characterized by fracture, fluidity, permeability and polycentricity. (\u201cThe Structural Characteristics of Global Law for the 21st<\/sup> Century,\u201d Tilburg L. Rev.<\/em>17(2):177-199 (2012)).\u00a0 To make human rights work, there must be a recognition of the consequences for law and governance that follow the de-centering of states and the state system. These consequences are the foundation for the development of human rights that challenge the traditional constraining approaches of law (\u201cMultinational Corporations, Transnational Law,\u201d Columbia Hum. Rts. L. Rev. <\/em>37:287-389 (2006)). They suggest the limits of the worthy efforts to improve state responses to transnational challenges, especially those touching on human rights, now incapable of providing comprehensive solutions (\u201cA Lex Mercatoria<\/em> for Corporate Social Responsibility Codes without the State,\u201d Ind. J. Glob. L. Stud.<\/em> 23:115-146 (2017)). Still, they also suggest neither order nor consensus\u2014indeed there is as much resistance as there is transformation in the changes that globalization brings (Harmonizing Law in an Era of Globalization: Convergence, Divergence, Resistance<\/em> (L.C. Backer, ed., Carolina Academic Press, 2007)).<\/p>\n

Those realities also suggest that non-state actors, principally transnational corporations (TNCs) and global NGOs now exert an increasing influence not merely on the production of law and policy with respect to human rights, but that they might also participate more effectively in the governance of behaviors that comprise human rights than do states. (\u201cEconomic Globalization and the Rise of Efficient Systems of Global Private Law Making,\u201d U. <\/em>Conn. L. Rev. <\/em>39(4):1739-1784 (2007)) The idea of human rights due diligence overseen by corporations and monitored by NGOs was virtually unheard of a decade ago, yet today those techniques driven by those private entities may be more important as a site for the production of human rights norms than the efforts of public organs. (\u201cTransnational Corporations\u2019 Outward Expression of Inward Self-Constitution,\u201d Ind. J. Glob. L. Stud. <\/em>\u00a020(2):805-879 (2013)). Yet it also means that states can assert substantial authority within global private markets, to the extent of their market power, using the traditional mechanics of public power.\u00a0 This is especially evident with the rise of sovereign wealth funds that may be used as a means of leveraging regulatory power in the case of Norway (\u201cSovereign Investing and Markets-Based Transnational Rule of Law Building,\u201d Am. U. Int\u2019l L. Rev. <\/em>\u00a029(1):1-121 (2013); \u201cSovereign Wealth Funds as Regulatory Chameleons,\u201d Georgetown J. Int\u2019l L. <\/em>41(2):425-500 (2010)); or Chinese economic policy (\u201cSovereign Investing in Times of Crisis,\u201d Transnat\u2019l L. & Contemp. Probs<\/em>. 19(1):3-144 (2010)). These funds point developing regulatory structures for financial markets (\u201cRegulating Global Markets: What we Might Learn From Sovereign Wealth Funds,<\/em>\u201d in <\/em>Reshaping Markets: Economic Governance, The Global Financial Crisis, and Liberal Utopia<\/em> (B. Lomfield, A. Somma and P. Zumbansen, eds., Cambridge Univ. Press, 2016)). Since the secind decade of the 21st century they appear as well to be evolving from mere investment vehicles to instruments in aid of development and national economic capacity\u00a0 “Sovereign Wealth Funds, Capacity Building, Development, and Governance,” 52(4) Wake Forest Law Review<\/em> 735-780 (2017).<\/p>\n

These changes affect Marxist Leninist States as much as they do Western states, though in different ways. (\u201cParty, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System,\u201d <\/em>B.U. Int\u2019l L. J.<\/em> 30(1):331-408 (2012)). Understood on their own terms, these systems can present constitutional questions that are functionally similar to those of Western states.\u00a0 These include questions of constitutional interpretation (\u201cA Constitutional Court for China Within the Chinese Communist Party?,\u201d Suffolk L. Rev<\/em>. 43(3):593-624 (2010)) and separation of powers (\u201cTowards a Robust Theory of the Chinese Constitutional State,\u201d Modern China<\/em> 40(2):168-195 (2014)). Importantly the conceptual differences in separation of powers may also lead to quite distinct approaches to the role and function of judges (“Between the Judge and the Law\u2014Judicial Independence and Authority with Chinese Characteristics,” 33(1) Connecticut Journal of International Law<\/em> 1-41 (2017)).\u00a0 And even Marxist-Leninist states must confront the reality of governance structures that center markets as the most potent regulatory instrument for contemporary states (“Central Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy,” Connecticut Journal of International Law<\/em> 32(1):1-47 (2016)).<\/p>\n

Human rights focuses not merely on western-style corporate enterprises, but also on Marxist Leninist enterprises within globalization (\u201cGlobalization and the Socialist Multinational,\u201d in Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization<\/em> 287-299 (M. Font & C. Riob\u00f3, eds., Paradigm Press, 2013)) or in domestic and regional development (\u201cFrom Colonies to Collective:\u00a0 ALBA, Latin American Integration, and the Construction of Regional Political Power,\u201d Routledge Handbook on Diplomacy and Statecraft<\/em> chp. 28 (B.J.C. McKercher, ed., Routledge, 2012)) where the corporation and the state fuse (\u201cCuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism,\u201d Transnat\u2019l L. & Contemp. Problems <\/em>14(2):337-418 (2004)). Indeed, the internationalization of constitutionalism within domestic legal orders, in their ideological dimension, fundamentally structures approaches to human rights (\u201cTheocratic Constitutionalism,\u201d Ind. J. Glob. L. Stud. <\/em>16(1):85-172 (2009)) in way that may be incompatible with international human rights norms.\u00a0 These developments within the conventional international system are advancing even as globalization restructures the basic relationships among law, states and governance, and thus re-orients their respective relationship with human rights. (\u201cInter-Systemic Harmonization and Its Challenges for the Legal-State,\u201d in The Law of the Future and the Future of the Law<\/em> 427-437 (S. Muller, et al., eds., Torkel Opsahl, Academic EPublisher, Oslo, 2011)).<\/p>\n

Human rights are now better understood as a function of combinations of \u201claw\u201d and other governance systems\u00a0 (\u201cFrom Institutional Misalignments to Socially Sustainable Governance:\u00a0 The Guiding Principles for the Implementation of the United Nation\u2019s \u201cProtect, Respect and Remedy\u201d and the Construction of Inter-Systemic Global Governance,\u201d Pacific McGeorge Glob. Bus. & Dev. L. J. <\/em>25(1):69-171 (2012)). But it remains as well the object of politics and the construction of society (\u201cIf you Want to Change Societal Norms You have to Change Society,\u201d in The Accidental Historian: The Michael Olivas Reader<\/em> (E. Roman, ed., Carolina Academic Press, forthcoming 2017)). Equally important, the shape of human rights is as much a function of governance (norm) as it is of technique, from cultures of surveillance, but now as dependent on the norms and techniques of assessment and surveillance (\u201cGlobal Panopticism:\u00a0 Surveillance Lawmaking by Corporations, States, and Other Entities,\u201d Ind. J. Glob. L. Stud.<\/em> 15(1):101-148 (2008)), of monitoring as a market device (\u201cFrom Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations,\u201d Georgetown J. Int\u2019l L. <\/em>39:591-653 (2008)), and on the human rights based focus of transparency (\u201cTransparency Between Norm, Technique and Property in International Law and Governance,\u201d Minn. J. Int\u2019l L. <\/em>22:1-70 (2013)).\u00a0 And, indeed, the market system itself can serve as the most complex and useful technique of governance (\u201cTheorizing Regulatory Governance Within its Ecology,\u201d Contemp. Pol.<\/em> 23:— (Sp. Issue forthcoming 2017)). These responsibilities increasingly apply both to operating companies and to the enterprises that finance them as well (“The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards,” 21 Lewis & Clark Law Review<\/em> 881-920 (2017)).<\/p>\n

These governance challenges then fold back into issues of fundamental legitimacy, which like the state, are founded on principles of democracy (\u201cDemocratizing the Global Business and Human Rights Project by Catalyzing Strategic Litigation from the Bottom Up,\u201d in Human Rights and Business:\u00a0 Moving Forward, Looking Back<\/em> 254-287 (Jena Martin and Karen Erica Bravo, eds., Cambridge University Press, 2015)) (With K. Wang, N. Haddad and T. Teraoka)). They also raise issues of legitimacy in governance systems beyond the state, and especially of representation.\u00a0 States subject to international public and private regulatory systems, international organizations producing norms to be embedded in domestic legal orders, civil society purporting to serve their constituencies\u2014all of these suggest the challenges of the basic building block of democratic legitimacy, the ideal of an authenticating representation (\u201cFractured Territories and Abstracted Terrains: The Problem of Representation and Human Rights Governance Regimes Within and Beyond the State,\u201d Ind. J. Glob. L. Stud.<\/em> 13(1):61-94 (2016)).\u00a0 These issues of legitimacy are compounded when distinct legal systems merge or occupy the same space in ways that challenge the ancient structuring principles of Western liberal markets-based democracy (\u201cThe Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective,\u201d Cornell Int\u2019l L.J. <\/em>48:51-104 (2015).)<\/p>\n

Most important, the cultural foundations of domestic governance can shape the approach to human rights, especially in the domestication of social, cultural and economic rights, in significant ways (\u201cRealizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks,\u201d The G. Wash. Int\u2019l L. Rev <\/em>45(4):615-680 (2013)). In Marxist Leninist systems, for example, the expression of the basic principle of human dignity at the heart of the human rights normative edifice is expressed not as inherent in the individual but as embedded in the structures of duty of the state itself (\u201cChina\u2019s Corporate Social Responsibility with National Characteristics,\u201d in Human Rights and Business:\u00a0 Moving Forward, Looking Back<\/em> 530-558 (J.Martin and K. E. Bravo, eds., Cambridge Univ. Press, 2015)). \u00a0On the other hand, the engagement of even Marxist systems with market based techniques can have profound effects on the context in which the notions of human dignity are framed and the relationship between human rights, state ideology, and the state itself\u00a0 are written into law and political practice (\u201cCentral Planning Versus Markets Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics, and Economy,\u201d Conn. J. Int\u2019l L. <\/em>32(1):\u2014(forthcoming 2017)). Yet, human rights regimes, to the extent they transcend the state also provide strong evidence of the emergence of both polycentric governance (\u201cPrivate Actors and Public Governance Beyond the State:\u00a0 The Multinational Corporation, the Financial Stability Board and the Global Governance Order,\u201d 18(2) Ind. J. Glob. L. Stud. <\/em>18(2): 751-802 (2011)) and of government beyond the state (\u201cGovernance Without Government:\u00a0 An Overview,\u201d in Beyond Territoriality: \u00a0Transnational Legal Authority in an Age of Globalization<\/em> 87-123 (G. Handl, J. Zekoll, P. Zumbansen, eds., Brill Academic Pub.,\u00a0 2012)).<\/p>\n

States now leverage polycentricity not merely internally or as a means of participating in the construction of global governance systems, but as a means of projecting and preserving power. (\u201cThe Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order,\u201d Wash. U. \u00a0Glob. Stud. L. Rev.<\/em> 13(1): 49-81 (2014)). It is in this context that it is useful to speak as well of regime collisions\u2014a recognition of the fact that legal fragmentation into an increasing number of governance regimes with overlapping areas of competence can lead to contradictory decisions or mutual obstructions.\u00a0 The development of governance regimes for the human rights impacts of economic activity suggests the ways in which multi-systemic governance, one with order but without an ordering center, can be managed (\u201cGovernance Polycentrism or Regulated Self-Regulation,\u201d in Contested Regime Collisions: Norm Fragmentation in World Society<\/em> 198-225 (K. Blome, et al. eds., Cambridge Univ. Press, 2016). \u00a0And that brings us back to the way that sovereign wealth funds serve as instruments, not merely of financial markets but of human rights and development as well (\u201cSWFs in Five Continents and Three Narratives: Similarities and Differences,\u201d in Research Handbook on Sovereign Wealth Funds and International Investment Law<\/em> 57-98 (F. Bassan, ed., Edward Elgar, 2015)).<\/p>\n

But the human rights project is also bound up strongly in emerging transnational legal systems, through which human rights structures have been most successfully advanced (\u201cThe Emerging Normative Structures of Transnational Law,\u201d Brigham Young U. J. Public Law <\/em>31(1):1-52 (2016)). These may challenge settled notions of a hierarchy of remediation centered on the courts, as public actors build hybrid organizations that may mediate human rights related disputes outside of national judicial systems (\u201cCase Note: Rights and Accountability in Development (Raid) V Das Air (21\u2028July 2008) And Global Witness v Afrimex (28 August 2008,\u201d Melb. J. Int\u2019l L. <\/em>10(1):258-307 (2009)). These may also challenge strongly held views on the nature of public and private enterprises\u2014and especially the complex of principles that constitute the normative structures of corporate legal personality and economic autonomy (\u201cThe Autonomous Global Corporation,\u201d Tulsa L. J.<\/em> 41(4):541-571 (2006)). These challenges must then confront efforts to nudge traditional principals toward new approaches (\u201cThe Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century,\u201d in Multinationals and the Constitutionalization of the World Power System<\/em> 170-189 (J.-P. Rob\u00e9, A. Lyon-Caen, and S. Vernac, eds., Routledge (Taylor & Francis Group), 2016)), and the resulting likelihood of significant resistance (\u201cConsidering a Treaty on Corporations and Human Rights,\u201d (forthcoming 2017 ). Alternatively, they produce efforts at transformation in which the old structures of the state system and its principles are replaced with another.\u00a0 That impulse is currently quite strong in the context of the legalization and regulation of the human rights conduct of business and of states (\u201cThe Perils and Promise of Drafting a Comprehensive Treaty on Business and Human Rights,\u201d N. C. J. Int\u2019l L. <\/em>42(1):– (forthcoming 2017)). Alternatively, they might nudge soft law systems toward societal legalization that mimics the rise of the common law (\u201cFrom Guiding Principles to Interpretive Organizations,\u201d in Business and Human Rights: Beyond The End of the Beginning<\/em> (C. Rodr\u00edguez-Garavito, ed., Cambridge Univ. Press, forthcoming 2016)). Private and public organizations are working toward the embedding the normative principles of human rights within corporate practice, and the language of corporate operation, even as the state continues to appear to evade a robust application through domestic law (\u201cMoving Forward the U.N. Guiding Principles for Business and Human Rights,\u201d Fordham Int\u2019l L. J. <\/em>38(2):457-542 (2015)).<\/p>\n

This brings us back to the central object of the project\u2014the ordering of states and TNCs within transnational regimes and grounded in their mandatory relationships to individuals.\u00a0 One moves from the commonplace focus on the TNC as the institution bridging state and international space (\u201cRegulating Multinational Corporations,\u201d Brown J. World Affs.<\/em> 22(1):153-173 (2015)) to the TNC as itself an aggregation\u2014a system\u2014that frames a regulatory space into which regulatory power is projected (\u201cAre Supply Chains Transnational Legal Orders,\u201d U.C. Irvine J. Int\u2019l, Transnat\u2019l, & Comp. L<\/em> 1(1):\u2013 (forthcoming 2016)).\u00a0 Yet the TNC also projects regulatory power within the state system itself\u2014for example, and increasingly, in those states that exist nominally but whose governance institutions are weak or nonexistent (\u201cCorporate Social Responsibility in Weak Governance Zones,\u201d Sta. Clara J. Int\u2019l L. <\/em>14(1):297-332 (2016)). And the state itself can serve as the most important TNC operating within and beyond the state (\u201cThe Cooperative as Proletarian Corporation,\u201d Nw J. Int\u2019l L. & Bus. <\/em>\u00a033:527-618 (2013). Lastly it reminds us of the connections of these governance regimes and the financial mechanism that tie production to finance of globalized forces (\u201cInternational Financial Institutions (IFIs) and Sovereign Wealth Funds,\u201d Int\u2019l Rev. L. <\/em>2015). What should emerge from this project, then, is a better understanding of the developing systems and their value in implementing the normative foundations of globalization.\u00a0 These reflect a new basis for managing the productive forces of labor (through human rights) and capital (through CSR) within, between and beyond the state.<\/p>\n

Yet the enterprise itself has become less well defined or perhaps better understood as something more than an augmented form of corporation.\u00a0 On the one hand, the privatization of the state has produced a curious development of state owned enterprises.\u00a0 These are incarnations of states, quite clearly.\u00a0 At the same time they are meant to be distinguished, along functional lines, between the political and the economic operations of states.\u00a0 Each is supposed to be managed within distinct approaches to law and governance.\u00a0 And yet it is not clear that those distinctions have survived the operationalization of globalization without undergoing substantial changes (“The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy,” 50(4) Vanderbilt Journal of Transnational Law<\/em> 827-888 (2017)).<\/p>\n

Law and governance is no longer limited to those products of statutes and courts cases that used to define the borders of a lawyer’s craft the way that territorial borders defined the limits of public political power. All aspects of challenges that transcend national boundaries, whether these challenges are global, regional or bi-lateral were exceptional and marginal to the lawyer of the last century.\u00a0 But the reality of globalization now poses challenges to this world view.\u00a0 (Ideologies of Globalization and Sovereign Debt:\u00a0 Cuba and the IMF<\/em>, 24 Penn State International Law Review 497-561 (2006)).\u00a0 Challenges touch on all aspects of human interaction; they can range from migration, to communicable diseases, to trade barriers, to corruption, to access to education, food and economic opportunity. (“Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief,\u00a0 Case Western Reserve Law Review<\/em> 44:871-1041 (1995); “Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration,” University of Florida Law Review<\/em> 45:755-802 (1993)). More fundamentally, these issues of law and governance touch on core cultural baselines for ordering society (“Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture,” 20 Boston College Third World Law Journal<\/em> 291-343 (2000); “The Many Faces of Hegemony: Patriarchy and Welfare as a Women\u2019s Issue,” 92 Northwestern University Law Review<\/em> 327 (1997) (reviewing Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare Reform in\u00a0 the United States (1996)).).<\/p>\n

Critical to meeting that challenge is an approach that embraces the idea that training, and the scholarship of faculty charged with that training, ought to be sufficient to enable them to function effectively from the conceptualization and formulation of policy, to its implementation and monitoring (“Harmonization, Subsidiarity and Cultural Differences: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems,” Tulsa Journal of Comparative & International Law<\/em> 4;185-217 (1997).). That philosophy and approach, and the embrace of the necessity of innovation in a world that is not bounded by the rules of fixed academic discourse, is the benchmark of my transnational law scholarship, one that is focused on human rights and constitutionalism. That we live in a rapidly changing world is more than a clich\u00e9, an empty phrase used to mask a fidelity to unchanging approaches to scholarship even as the world changes around us. The conventional singular system of public law grounded in a state system characterized by a strongly interlinked network of domestic legal orders managed through the evolution of meta-norms generated through the institutions of the community of nations is now being challenged by a governance order better characterized by fracture, fluidity, permeability and polycentricity. (“The Structural Characteristics of Global Law for the 21st<\/sup> Century: Fracture, Fluidity, Permeability, and Polycentricity,” <\/em>17(2) Tilburg Law Review<\/em> 177-199 (2012)).<\/p>\n

The realities of modern life mean that to make human rights work, we have to recognize that there are consequences for law and governance that follow the de-centering of states and the state system, and that this consequence is of the essence for the development of human rights. (“Multinational Corporations, Transnational Law: The United Nation\u2019s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law,” 37 Columbia Human Rights Law Review<\/em> 287 (2006)). Those realities suggest that the tight connection between law, governance and the state may be loosening again (“Reifying Law:\u00a0 Understanding Law Beyond the State,” Penn State International Law Review<\/em> 26(3):521-563 (2008)).\u00a0 They also suggest that non-state actors, principally corporations and global NGOs now exert an increasing influence not merely on the production of law and policy with respect to human rights, but that they might also participate more effectively in the governance of behaviors that comprise human rights than do states. (“Economic Globalization and the Rise of Efficient Systems of Global Private Law Making:\u00a0 Wal-Mart as Global Legislator,” <\/em>39(4) University of Connecticut Law Review<\/em> 1739 (2007)) The idea of human rights due diligence overseen by corporations and monitored by NGOs was virtually unheard of five years ago, yet today the impact of the Fair Labor Association and Apple Inc. in developing implementing and policing rules for factory workers within Apple\u2019s global supply chain may be more important as a site for the production of human rights norms than the efforts of public organs. (“Transnational Corporations\u2019 Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,” 20 Indiana Journal of Global Legal Studies<\/em>805-879 (2013).) Yet it also means that states can assert substantial authority within global private markets as they might using the traditional mechanics of public power.\u00a0 This is especially evident with the rise of sovereign wealth funds that may be used as a means of leveraging regulatory power in the case of Norway (“Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets,” 29(1) American University International Law Review<\/em> 1-121 (2013); “Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment,” 41(2) Georgetown Journal of International Law<\/em> 425-500 (2010) ); or economic policy in the case of China (“Sovereign Investing in Times of Crisis: Global Regulation of Sovereign Wealth Funds, State Owned Enterprises and the Chinese Experience,” 19(1) Transnational Law & Contemporary Problems 3-144 (2010) ).<\/p>\n

We have come to understand that these changes affect Marxist Leninist States as much as they do Western states, though in different ways. (Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, <\/em>30(1) Boston University International Law Journal 331-408 (2012)). Understood on their own terms, these systems can present constitutional questions that are functionally similar to those of Western states.\u00a0 These include questions of constitutional interpretation (“A Constitutional Court for China Within the Chinese Communist Party?: Scientific Development and a Reconsideration of the Institutional Role of the CCP,” 43(3) Suffolk Law Review<\/em> 593-624 (2010)) and separation of powers (“Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong\u2019s Constitutionalism,” 40(2) Modern China<\/em> 168-195 (2014)).\u00a0 Indeed, the internationalization of constitutionalism within domestic legal orders, in their ideological dimension, fundamentally structures approaches to human rights (“Theocratic Constitutionalism:\u00a0 An Introduction to a New Legal Global Ordering,” 16(1) Indiana Journal of Global Legal Studies<\/em> 85-172 (2009)) in way that may be incompatible with each other.\u00a0 These developments within the conventional international system are advancing even as globalization restructures the basic relationships among law, states and governance, and thus re-orients their respective relationship with human rights. (Inter-Systemic Harmonization and Its Challenges for the Legal-State, in<\/em> FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011)). And indeed, human rights are now better understood as a function of combinations of \u201claw\u201d and other governance systems.\u00a0 (From Institutional Misalignments to Socially Sustainable Governance:\u00a0 The Guiding Principles for the Implementation of the United Nation\u2019s \u201cProtect, Respect and Remedy\u201d and the Construction of Inter-Systemic Global Governance<\/em>, 25(1) Pacific McGeorge Global Business & Development Law Journal 69-171 (2012)).<\/p>\n

Equally important, the shape of human rights is as much a function of governance (norm) as it is of technique, from cultures of surveillance, but now as dependent on the norms and techniques of assessment and surveillance (Global Panopticism:\u00a0 Surveillance Lawmaking by Corporations, States, and Other Entities,<\/em> 15(1) Indiana Journal of Global Legal Studies 101 (2008)), of monitoring as a market device (From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations<\/em>, 39 Georgetown Journal of International Law 591 (2008)), and on the human rights based focus of transparency (Transparency and Business in International Law, in <\/em>Transparency in International Law (Anne Peters and Andrea Bianchi, eds., Cambridge:\u00a0 Cambridge University Press, forthcoming 2012); Transparency Between Norm, Technique and Property in International Law and Governance\u2014The Example of Corporate Disclosure Regimes and Environmental Impacts<\/em>, 22 Minnesota Journal Of International Law 1-70 (2013)).\u00a0 Human rights focuses not merely on western-style corporate enterprises, but also on Marxist Leninist enterprises within globalization (Globalization and the Socialist Multinational: Cuba at the Intersection of Business and Human Rights, in<\/em> Handbook on Contemporary Cuba: Economy, Civil Society, and Globalization (New York: CUNY\/Paradigm Press, forthcoming 2012)) or in domestic and regional development (The Cooperative as Proletarian Corporation: Property Rights Between Corporation, Cooperatives And Globalization In Cuba” <\/em>in 33 Northwestern Journal of International Law and Business —(forthcoming 2012-2013); From Colonies to Collective:\u00a0 ALBA, Latin American Integration, and the Construction of Regional Political Power<\/em>, Routledge Handbook on Diplomacy and Statecraft (B.J.C. McKercher, ed., London:\u00a0 Taylor & Francis\/Routledge, 2012)). Most important, the cultural foundations of domestic governance can shape the approach to human rights, especially in the domestication of social, cultural and economic rights, in significant ways (“Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks:\u00a0 The Potential Impact of Privatization and the Role of Companies in China and India,” 45(4) The George Washington International Law Review<\/em> 615-680 (2013) ). Human rights regimes, to the extent they transcend the state also provide strong evidence of the emergence of both polycentric governance (Private Actors and Public Governance Beyond the State:\u00a0 The Multinational Corporation, the Financial Stability Board and the Global Governance Order<\/em>, 18(2) Indiana Journal of Global Legal Studies 751 (2011)) and of government beyond the state (Governance Without Government:\u00a0 An Overview, in<\/em> Beyond Territoriality: \u00a0Transnational Legal Authority in an Age of Globalization 87-123 (G\u00fcnther Handl, Joachim Zekoll, Peer Zumbansen, editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers,\u00a0 2012)).\u00a0 States now leverage polycentiricy not merely internally, but as a means of participating int he construction of global governance systems but as a means of projecting and preserving power. (“The Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order<\/em>,” 13(1) Washington University Global Studies Law Review<\/em> 49-81 (2014)).<\/p>\n","protected":false},"excerpt":{"rendered":"

Globalization has been changing the structures and discursive frameworks of governance. The post 1945 globalization frameworks had the modest goals of reducing the risk of war through international trade and political networks, increasing the authority of law to develop global legal barriers to violent conflict and the protection of individuals, and institutionalizing systems of consensus … <\/p>\n

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