The Political Foundations of Conflicts Law1

(2011) 2(2) Transnational Legal Theory 227–242

The Political Foundations of Conflicts Law1 Poul F Kjaer*

Abstract Against the backdrop of the conflicts law approach developed by Christian Joerges, the basic features of a transnational concept of the political are developed. The starting point is the insight that statehood has undergone rapid expansion in both depth and scope in recent history. Thus, the central site for democratic decision-making is not in decline. Statehood has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering located beneath, beside and above the state. The central structural cause behind the expansion in statehood was the implosion of the eurocentric world and the subsequent decolonisation processes that unfolded in the twentieth century. Besides leading to a globalisation of statehood, this transformation also implied a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards the kind of functionally delineated regulatory regimes that represent the dominant form of transnational ordering today. Understanding the consequences of this fundamental transformation is the central issue with which contemporary transnational legal and political theory, including the conflicts law approach, is dealing. But whereas central aspects of a new concept of transnational law have already been developed, a concordant concept of transnational politics is still lacking. Such a concept must reflect the functional delineated setup of contemporary transnational processes as well as the specific social functions that transnational processes reproduce.

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This paper is part of a larger and ongoing project on transnational constitutionalism. For related and overlapping perspectives see also Poul F Kjaer, ‘The Metamorphosis of the Functional Synthesis: A Continental European Perspective on Governance, Law and the Political in the Transnational Space’ (2010) 2 Wisconsin Law Review 489–533; Poul F Kjaer, ‘The Structural Transformation of Embeddedness’ in Christian Joerges and Josef Falke (eds), Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets (Hart Publishing, 2011) 85–104; Poul F Kjaer, ‘Law and Order Within and Beyond National Configurations’ in Poul F Kjaer, Gunther Teubner and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation (Hart Publishing, 2011) 395–430. Alexander von Humboldt Fellow, Goethe University Frankfurt, Germany; [email protected]. I would like to thank the participants of the CRC 597/RECON Workshop: After Globalisation—New Patterns of Conflict, Loccum, 5–7 September 2010 for many useful suggestions relating to a previous version of this article. Special thanks are due to Christian Joerges and Tommi Ralli for organising the event and to Inger-Johanne Sand who acted as a commentator on a previous version of this paper.

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1. INTRODUCTION In contrast to continental ‘private international law’ and Anglo-American ‘conflict of laws’, the conflicts law approach developed by Christian Joerges is not merely aimed at developing a framework for the allocation of legal decisions within one of several national legal orders. Such ‘horizontal’ conflicts continue to be of central importance, but at the same time the approach responds to the factual existence of a multiplicity of overlapping legal orders in the postnational constellation. This is particularly evident in relation to the EU, where ‘vertical’ and ‘diagonal’ conflicts between the EU legal order and national legal orders are a central feature. But similar conflicts can also be observed between the European Human Rights regime and national legal orders, as well as on the global plane in relation to legal regimes such as the World Trade Organization (WTO). A second core feature of the approach is that it departs from an understanding of law as politically informed, in the sense that the modalities for and legitimacy of legal actions are seen as derived from political processes. This is also being expressed in the overriding normative objective of the approach, namely to develop a framework that makes it possible to understand democracy as the dominant form of collective decision-making in the postnational constellation. Thus the core motive of the exercise is to safeguard the pre-dominance of democratic decision-making in the face of the structural transformations brought about by globalisation. When combining these two core insights, however, a tension appears. The approach departs from the acknowledgement that transnational legal regimes are (increasingly) autonomous entities which are controlled only partially by nation states and the (democratic) processes of policymaking through which nation states are constituted. It follows that, in order to understand transnational legal regimes as essentially politically informed, they will have to rely on corresponding transnational political processes insofar as they only partially can derive their legitimacy from (democratic) nation state politics. Together with Jürgen Neyer, Joerges responded to this tension at the very outset of the project with the introduction of the concept of deliberative supranationalism. Exploring the EU Comitology framework, they developed a dual concept where Comitology processes are seen as relying on two sources of legitimacy: their intergovernmental setup and the deliberative quality emerging from the processes themselves. Thus deliberative supranationalism implies an understanding of deliberative processes as partially substituting democratic decision-making in the transnational realm.2 Although the deliberative supranationalism approach generated many fruitful insights, it remained an inductive exercise which merely focused on the specificities of Comitology. Thus, in the wake of the gradual expansion of the conflicts law approach into a ‘three2

Christian Joerges and Jürgen Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes’ (1997) 3 European Law Journal 273–95; Christian Joerges, ‘“Deliberative Supranationalism”: Two Defences’ (2002) 8(1) European Law Journal 133–51.

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dimensional’ approach which, at least potentially, claims validity in relation to transnational legal processes as such and not only to the EU, the political dimension needs to be correspondingly expanded and generalised. In addition, the deliberative supranationalism approach limited itself merely to the dual exercise of reconstructing the legal framework of Comitology and empirical observations regarding the degree to which the outcomes of Comitology processes were consensus driven. Thus the actual form of the political processes themselves remained underexplored insofar as the character of the political ‘infrastructure’ of transnational processes were not uncovered. Against this background, the objective of this contribution is to develop central dimensions of a general conceptual framework for the study of transnational political processes. This is done on the basis of three propositions: (1) Statehood has experienced a rapid expansion in both depth and scope in recent history insofar as it first became a global phenomenon in the wake of decolonisation. Thus, the central site for democratic decision-making is not in demise. Statehood has, however, always been a limited form of social ordering which has operated in conjunction with other forms of social ordering. (2) The implosion of the eurocentric world implied not only a globalisation of statehood but also a transformation of transnational forms of ordering away from colonial centre/periphery differentiation and towards functionally differentiated regulatory regimes. (3) Conceptually grasping this transformation is the central challenge that contemporary transnational legal and political theory, including the conflicts law approach, is confronted with, thereby necessitating the development of novel concepts of not only transnational law but also transnational politics. These concepts must, however, reflect the functionaly delineated setup of transnational processes as well as the specific social functions that are reproduced through transnational processes.

2. THE THREE LAYERS OF WORLD SOCIETY: LOCALISM, STATEHOOD AND TRANSNATIONALITY It was only in the wake of the decolonisation processes of the mid-twentieth century that the globe in its entirety became divided into independent states. Thus, the globality of statehood is historically speaking a very recent phenomenon.3 But also in Europe the dominance of modern statehood is rather new. European states emerged out of century-long processes of metamorphosis, in the sense that modern states emerged gradually from within already-existing feudal structures. Feudal structures, however, showed themselves to be extremely resilient, and it was only through sustained rationalising and disciplinising efforts of the emerging states that the vast majority of Europe became characterised 3

Rudolf Stichweh, ‘Dimensionen des Weltstaats im System der Weltpolitik’ in Mathias Albert and Rudolf Stichweh (eds), Weltstaat und Weltstaatlichkeit. Beobachtungen globaler politischer Strukturbildung (Verlag für Sozialwissenschaften, 2007) 27.

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by outright state supremacy in the first decades of the twentieth century.4 It was at this point in time that the European states managed to eradicate local (quasi-) feudal structures of social ordering and supplant such forms of ordering with a ‘Hegelian codification’ of society in its entirety.5 In a variant of this development, modern statehood was externally imposed through imperialism in the (post-) colonial settings. The consequence is, as also advocated by legal pluralism approaches, that the majority of the world, most notably in Africa, Asia and Latin America, continues to be characterised by a duality between localist and modern statebased layers of social ordering. Modern forms of organisation, essentially of European origin, such as codified legal systems and generalised bureaucratic structures, have been imposed ‘on top of’ traditional forms of societal organisation, without actually achieving a complete marginalisation of the ‘traditional’ forms of societal organisation.6 Thus, the different social logics that they represent continue to operate simultaneously, either in a separate but entangled manner, or through the formation of hybrid structures which combine elements from both dimensions.7 The basic features of the modern state and society, such as constitutions, contract law, property rights and so forth, might be formally in place at the same time as localistic forms of social organisation, to different degrees and in different variations, continue to define the form of social operations ‘beneath’ the formal structures of the state, and often in a manner which short-circuits the operative practices of the modern structures. Consequently, it is possible to observe a somewhat ambiguous development. On the one hand, the majority of the world continues to be characterised by ‘weak states’, in the sense that statehood in the greater part of the world constitutes only a thin layer that merely represents one segment of society because the forms of social ordering that existed prior to the establishment of modern statehood continue to be of vital importance. On the other hand, the reach of the state phenomenon has continued to expand rapidly, not only through the expansion of the number of states in the wake of decolonisation but also in terms of an increased ability of states to reconstruct the social structures operating within 4 5

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Norbert Elias, Über den Prozeß der Zivilisation, Band 2 (Suhrkamp, 1976 [1938]); Michel Foucault, Il faut défendre la Société. Cours au Collège de France, 1975–76 (Gallimard, 1997). In many parts of Europe this happened even later. For example, Chris Thornhill argues that Western Germany did not achieve a modern form of statehood before the mid-20th century: Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge University Press, 2011) 335–41. A similar argument might also be made in relation to the US South States where the power of the Federal government was countervailed by locally embedded power structures until the mid-20th century. For example, for the case of Brazil, see Leonardo Avritzer, ‘Culture, Democracy and the Formation of the Public Space in Brazil’ in Jessé Souza and Valter Sinder (eds), Imagining Brazil (Rowman & Littlefield, 2005); Marcelo Neves, Verfassung und Posivität des Rechts in der peripheren Moderne (Duncker & Humblot, 1992). Inger-Johanne Sand, ‘Hybrid Law—Law in a Global Society of Differentiation and Change’ in Gralf-Peter Calliess, Andreas Fischer-Lescano, Dan Wielsch and Peer Zumbansen (eds), Soziologische Jurisprudenz. Festschrift für Gunther Teubner zum 65. Geburtstag (De Gruyter, 2009).


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their territories in their own image.8 Thus the state has always been a limited form of social organisation due to the existence of extensive forms of social ordering outside its factual reach. But since states are the only form of social organisation in which democracy has materialised, the history of statehood moreover implies that democracy is a limited type of political decision-making which throughout its existence has operated side by side with other forms of social ordering. In addition to the duality between state formation and localistic forms of social organisation, the transnational layer of world society constitutes a third form of social ordering. Although deeply intertwined with the two other layers, transnational processes rely on a particular logic of structure formation which makes it necessary to understand them as autonomous phenomena which cannot be seen as merely derived from statehood through a reduction of transnational processes to inter-state relations.9 What can be observed is instead a mutually constitutive relationship where the expansion of statehood and transnational forms of social ordering emerged hand in hand. For example, modern European states emerged in conjunction with the gradual expansion of transnationality in the colonial form. Thus, the phenomenon of colonialism not only testifies that transnationality is by no means a new phenomenon, but also illustrates that statehood and transnationality, historically speaking, have been mutually reinforcing. It follows that the constitutional orders of nation states have always been embedded in larger structures of transnational ordering.10 The emergence of modern statehood cannot, therefore, be adequately understood without taking the simultaneous emergence of overarching transnational structures into consideration. What is new is that since the breakdown of the eurocentric world in the late nineteenth century,11 ultimately leading to the implosion of the European colonial empires in the midtwentieth century, the structural composition of the transnational layer of world society has fundamentally changed. Whereas the colonial form of transnationality was based on centre-periphery differentiation, the key organisational principle of contemporary transnational processes is functional differentiation.12 Today, maritime affairs are dealt with by the International Maritime Organization (IMO), air safety by the International Civil Aviation Organization (ICAO), banking by the G-10 Basel Committee, food standards by Michel Foucault, Security, Territory, Population: Lectures at the Collège De France 1977–78 (Palgrave Macmillan, 2007). 9 See Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton University Press, 2006) and the contribution of Marc Amstutz in this issue. 10 James Tully, ‘The Imperialism of Modern Constitutional Democracy’ in Neil Walker and Martin Loughlin (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007). 11 Carl Schmitt, Der Nomos der Erde. Im Völkerrecht des Jus Publicum Europaeum (Duncker & Humblot, 1997 [1950]) 200–12. 12 For an attempt to maintain centre-periphery differentiation as the central category, see the work of Immanuel Wallerstein, eg World-Systems Analysis: An Introduction (Duke University Press, 2004). 8

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the UN Food and Agriculture Organization (FAO), international trade by the WTO, and so forth. Similar forms of functional delineation can be observed in relation to (semi-) private regulatory organisations such as the International Organization for Standardization (ISO) and the Internet Corporation for Assigned Names and Numbers (ICANN). Moreover, at the other end of the public/private continuum, multinational companies, in their capacity as functionally delineated organisational systems operating within the economic sphere, have emerged as autonomous structures in their own right.13 The causes and consequences of the structural transformation of transnational ordering away from centre/periphery differentiation and towards an increased reliance on functional differentiation in the wake of decolonisation is the essential subject matter that contemporary transnational legal and political theory, including the conflicts law approach, seeks to address. ‘The deep structural and conceptual change that this decentring of Eurocentrism has brought about is not yet sufficiently understood’,14 thereby triggering a need to develop new conceptual frameworks in order to adequately comprehend the nature of the observable processes.15

3. THE FUNCTIONS OF NATIONAL AND TRANSNATIONAL LAW AND POLITICS (a) The Statist Category Error As mentioned, the structural transformation of transnational ordering emerged hand in hand with the expansion of statehood,16 and no weakening of statehood can be observed.17 It follows that transnational forms of ordering are not substituting state based forms of social ordering but rather substituting the earlier colonial form of transnationality. This is even the case with the EU and its predecessors, insofar as the European integration 13 14 15

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Larry Catá Backer, ‘Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator’ (2007) 4 University of Connecticut Law Review 1739. Hauke Brunkhorst, ‘Constitutionalism and Democracy in World Society’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (Oxford University Press, 2010) 179, 185. eg Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law: Postmodern Anxieties?’ (2002) 15 Leiden Journal of International Law 553; Andreas Fischer-Lescano and Gunther Teubner, ‘RegimeCollisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 1000. The thesis concerning the mutual constitutiveness of national and transnational forms of ordering should not be confused with a thesis concerning the absence of conflicts between two layers. For example, each time the IMF imposes austerity measures on a state, conflicts are prone to happen. But conflicts are not zero-sum games. The modern European nation states, for example, emerged and were increasingly condensed through fierce interstate military conflicts. In a similar manner conflicts between national and transnational entities might propel increased condensation within both of the two layers. Barry Buzan, From International Society to World Society? English School Theory and the Social Structure of Globalisation (Cambridge University Press, 2004).


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process emerged as a direct response to the failed attempt of Germany to establish an empire and the implosion of actually existing British and French colonial empires. The central driving force behind integration processes is therefore not to be found in the reconciliation efforts of Germany and France but rather in the structural pressure emerging from the implosion of the eurocentric world and the subsequent need to realign the relationship between Europe and the rest of the world.18 It follows that the widespread attempt within legal and political theory to undertake a one-on-one transfer of concepts of statehood, democracy and law developed in nation state contexts to the transnational realm and normatively evaluate transnational orders on the basis of criteria developed for use in nation state contexts represents a category error.19 The understanding of transnational structures as autonomous forms of social ordering, which does not per se imply a weakening of (democratic) statehood, implies that they have to be immanently evaluated on the basis of benchmarks that are specific to the transnational form of social ordering. In practice they must be evaluated on the basis of a historical and process-based perspective comparing contemporary forms of transnationality with previous forms. Are meetings in the WTO ‘Green Room’ preferable to the nineteenth century way of gaining market access through gunboat diplomacy? Are the objectives and values inherent in the global human rights regime better than the message advocated by earlier forms of religious missions? And are the technocratic doldrums of European Council meetings preferable to old-fashioned Realpolitik?20 (b) Condensation and Transfer In order to grasp transnational social processes as sui generis processes it is necessary to identify the specific and rather different societal function of the legal and political processes in transnational settings as compared to national settings. The function of law in national settings is to uphold and condense normative expectations.21 The central sociPoul F Kjaer, Between Governing and Governance: On the Emergence, Function and Form of Europe’s PostNational Constellation (Hart Publishing, 2010) 15–20; Niklas Luhmann, ‘Europa als Problem der Weltgesellschaft’ (1994) 2 Berliner Debatte 3–7. 19 For an example of a statist perspective on transnationality see the contribution of Florian Rödl in this volume. 20 The intriguing reconstruction of the systematic curtailing of democracy through ECHR, EU and WTO constitutional provisions protecting capitalism presented by Danny Nicol can therefore be somewhat relativised. The conflict between transnational legal orders and national democracy he observes needs to be contextualised within a far larger structural setting. The autonomy of UK democratic decision-making in the first half of the 20th century only existed because the British Empire provided the UK with a structural framework that enabled it to act autonomously. The democratic autonomy of the UK thus came at the expense of the colonised peoples. Similarly the autonomy of US democratic decision-making in the first two postCold War decades, as for example reflected in the US insistence on safeguarding the supremacy of the US Congress in relation to WTO provisions, was only possible because of the hegemonic quasi-imperial position of the USA in that period. For other democratic states such autonomy has never existed. For the position of Nicol see The Constitutional Protection of Capitalism (Hart Publishing, 2010). 21 Niklas Luhmann, Das Recht der Gesellschaft (Suhrkamp, 1993) 131. 18

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etal function of the national form of the political is to take and implement collectively binding decisions with relevance for a pre-defined and limited territory on the basis of a claim to universality within the territory in question, which is combined with a counterfactual upholding of norms through law.22 As already mentioned, such claims have only partially materialised in the majority of the world due to the existence of extensive structures of ordering beneath, beside and beyond the state. Nonetheless, the overriding counterfactual objective inherent in nation state orders remains the condensation of society through positive integration understood as an across the board stabilisation of social processes within a given territory on the basis of the state’s claim to a monopoly on the legitimate use of violence and a legal solidification of norms.23 The objective of positive integration is most clearly being expressed in the self-understanding inherent in national constitutional semantics which traditionally has reflected an idea of comprehensiveness, seeing the constitution as a skeleton for society in its entirety.24 In direct contrast to such orientations towards positive integration, transnational law and politics predominantly deal with a problem of transfer through negative integration. The overriding counterfactual objective of transnational legal and political processes is to facilitate the transmission of social components such as economic products and capital, scientific knowledge, religious beliefs, artistic artifacts and even humans between different normative orders. Normative orders exist when boundaries are established, enabling a distinction between the order in question and the wider world, at the same time as a coherent and condensed arrangement of rules of social interaction, reflecting specific structures of expectations, emerge within those boundaries.25 States are clearly the predominant but not the only form of normative order. Entities such as function systems, networks, organisations and regimes are also to be understood as normative orders just as the problem of transfer occurs in relation to all of these forms of social ordering. Consequently, transnational law and politics should more adequately be denoted as ‘transnormative’ forms of law and politics insofar as they are concerned with acts of transfer taking place in-between normative orders as such.26 Such transfers imply a crossing of borders of meaning (Sinngrenzen),27 which can but need not be symbolically linked to geographical counterparts through reference to territorial borders. Consequently, classi22 23 24

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Niklas Luhmann, Die Politik der Gesellschaft (Suhrkamp, 2000) 140–69. The linking of law thereby produces a coordination of society in its entirety; see Luhmann, ibid, 429. This argument comes in a culturalist variant as advocated by Grimm: see eg Dieter Grimm, ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations 447, as well as in epistemic variants which emphasise that the state provides a comprehensive way of understanding the world. See eg Martin Loughlin, ‘In Defence of Staatslehre’ (2009) 48 Der Staat 1. For an evaluation see also Neil Walker, ‘Beyond the Holistic Constitution?’ in Dobner and Loughlin (n 14) 291. Talcott Parsons, The System of Modern Societies (Prentice Hall, 1971) 8–15. For a reconstruction of the numerous meanings of the concept of transnational law see Craig Scott, ‘“Transnational Law” as Proto-Concept: Three Conceptions’ (2009) 10(7) German Law Journal 859. Niklas Luhmann, ‘Sinn als Grundbegriff der Soziologie’ in Jürgen Habermas and Niklas Luhmann (eds), Theorie der Gesellschaft oder Sozialtechnologie (Suhrkamp, 1971) 25–31.


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cal international law and politics merely represent a subcategory of transnational law and politics because they remain limited to the handling of interstate transfers on the basis of a symbolic reference to geographical borders.

4. THE FORMS OF NATIONAL AND TRANSNATIONAL POLITICS (a) Cognitive and Normative Expectations The positive and negative integration functions of law and politics are of course present within both national and transnational legal and political settings, but, due to the societal functions they fulfil, the two settings are respectively characterised by a structural supremacy of one of the two dimensions.28 The tension between positive and negative integration is closely linked to the distinction between cognitive and normative structures of expectations. In the early 1970s Niklas Luhmann predicted that the increased condensation of world society would lead to an increased reliance on cognitive rather than normative structures of expectation. Cognitive expectations imply an adaptive approach to future developments, in the sense that social processes react to changes in their environments through internal reorganisation. In contrast, normative expectations imply that existing perspectives and policies are contrafactually upheld irrespectively of their degree of factual realisation. Over the last decades this proposition has been steadily advanced and concretised within legal scholarship through attempts to develop a cognitive based concept of law, most notably by Marc Amstutz, Karl-Heinz Ladeur and Gunther Teubner. The perspective advanced is that of a ‘learning law’, in the sense that the law is seen as changing the modalities it makes available to the rest of society in the face of new knowledge, just as it is directly oriented towards the facilitation of processes of learning in society. The three scholars have moreover directly linked the emergence of a cognitivised law to globalisation and as such clearly see transnational settings as the places where this transformation of law has advanced the most.29 In the perspective advanced by Amstutz this development is moreover being explicitly linked to the function of transnational law, or world law as he The distinction between positive and negative integration also forms the basis for the political and legal theory claim that transnational settings structurally favour liberal rights at the expense of republican politics. See eg Fritz W Scharpf, ‘Legitimacy in the Multi-level European Polity’ in Dobner and Loughlin (n 14) 89; Christian Joerges, ‘Rechtsstaat and Social Europe: How a Classical Tension Resurfaces in the European Integration Process’ (2010) 9(1) Comparative Sociology 65. 29 eg Marc Amstutz and Vaios Karavas, ‘Weltrecht: Ein Derridasches Monster’ in Calliess et al (n 7) 660; KarlHeinz Ladeur, ‘Towards a Legal Theory of Supranationality—The Viability of the Network Concept’ (1997) 3(1) European Law Journal 33–54; Gunther Teubner, ‘“Global Bukowina”: Legal Pluralism in the World-Society’ in Gunther Teubner (ed), Global Law Without a State (Ashgate, 1996) 3. For a critical assessment of the consequences of cognitive transnational law see Moritz Renner, ‘Death by Complexity—The Crisis of Law in World Society’ in Kjaer et al (n 1) 98. 28

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denotes it, as a law which fulfils the function of facilitating transfers through negative integration.30 In the US setting, perspectives with somewhat similar intentions have been developed, on the one hand, by Charles Sabel and Jonathan Zeitlin31 and, on the other, by David Trubek.32 The scholars advancing the prospects of a new type of law, however, tend to ignore the question whether similar developments can be observed within the political sphere. Indeed it can be argued that not only a particular form of cognitivised law but also a particular form of cognitivised politics has emerged in the transnational realm. Since the inter-war period it has been possible to detect the emergence of a specific self-understanding within transnational public organisations, based on the advocacy of a specific functionalist form of transnational politics. This form of politics was from the outset conceived of as a particular ‘rationalised form of the political’ which was developed as a direct alternative to the ‘irrational’ and ‘emotion driven’ form of national politics as epitomised in the exaltation of August 1914.33 Such semantic appearances can however be seen as a reflection of a far more fundamental development towards the emergence of a specific cognitivised transnational form of the political which again reflects the primarily functional differentiated character of transnational processes. In transnational settings substitutes have emerged for the constitutive infrastructure of the political in the nation state form in the sense that the concepts of ‘nation’, ‘the public sphere’ and ‘representation’ are being substituted by the concepts of ‘stakeholders’, ‘transparency’ and ‘self-representation’. (b) Nation and Stakeholders The central medium of distribution (Verbreitungsmedium) of political power in state settings is the nation. Since Rousseau introduced the concept of the general will the nation is no longer to be understood as the concrete sum of individual wills within a given territory; rather it is to be seen as a generalised and abstract construction.34 Following Foucault, and in contrast to mainstream liberal theory, the nation is moreover not to be understood as the subject constituting the state.35 On the contrary, the nation is consti30 31 32 33 34

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Marc Amstutz, ‘In-Between Worlds: Marleasing and the Emergence of Interlegality in Legal Reasoning’ (2005) 11 European Law Journal 264–84. eg Charles Sabel and Jonathan Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the European Union’ (2008) 14(3) European Law Journal 271–327. eg David M Trubek, ‘New Governance and Legal Regulation: Complementarity, Rivalry or Transformation?’ (2007) 13 Columbia Journal of European Law 542. Jens Steffek, ‘Tales of Function and Form: The Discursive Legitimation of International Technocracy’, Normative Orders Working Paper No 2 (2011). For the different meanings of the concepts ‘nation’ and ‘people’, especially in the French and German contexts, see Thomas Cottier and Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck Yearbook of United Nations Law 261–328, 287. Foucault (n 4).


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tuted by the state insofar as the nation was consciously developed by the emerging territorially delineated states.36 Within the framework of the nation three interrelated functions are established and reproduced: (1) A delineation of the reach of the state’s power vis à vis other states since a state can only be said to exist when it can credibly claim supremacy over a nation which is distinguishable from the nations of other states. (2) The nation is a framework which enables the state to extract resources from other segments of society. The existence of a state as a specific site for the reproduction and exercise of public power is conditioned by its conceptual and factual separation from other spheres of society, such as the religious, economic and scientific spheres. In this context the concept of nation serves as an instrument which through recourse to semantics of patriotism and solidarity validates the extraction of resources from other segments of society, for example in the form of capital via taxation and the drafting of soldiers for military purposes. (3) The concept of nation serves as a form through which the state reduces social complexity; it is used to delineate that part of the world which a state takes account of in its decisionmaking. For example, the US Congress merely takes account of the preferences of the American nation, although the decisions it takes in most instances have direct consequences for the Canadian and Mexican nations as well. This complexity-reducing aspect is closely associated with the concept of democracy, as democracy can be understood as a specific approach through which the political system delineates the part of society it observes.37 In relation to democracy, the concept of nation allows for the introduction of a distinction between stability and change insofar as the nation on the one hand is defined as a relatively static entity at the same time as the preferences, interests and norms of the nation are considered volatile and subject to continued observance by the state through democratic processes. In this particular sense democracy is a reflexivityincreasing instrument which through reliance on the concept of nation enables the state to increase its ability to adapt when changes occur in its surroundings. Thus, the specificity of democracy (when compared with other forms of rule, such as feudalism and totalitarianism) is that, within the framework of the nation, it remains open to the future because what counts as a politically relevant problem or how it should be dealt with is not prescribed.38 In this specific sense, democracy is characterised by a high level of adaptability, and this is probably the reason why it has proved to be evolutionarily superior when measured against other forms of rule that have existed to date. The stakeholder concept essentially fulfils a similar role in transnational settings. Transnational processes are mainly functionally delineated and as such are characterised Ernest Gellner, Nations and Nationalism (Blackwell, 1993); Eugen Weber, Peasants into Frenchmen: The Modernization of Rural France 1880–1914 (Stanford University Press, 1976). 37 It is a similar observation that makes Joerges argue that national democratic decision-making suffers from a democratic deficit because extraterritorial effects of such decision-making are not taken into account. 38 Niklas Luhmann, ‘Die Zukunft der Demokratie’ in Niklas Luhmann, Soziologische Aufklärung, Band 4. Beiträge zur Funktionalen Differenzierung der Gesellschaft (Westdeutscher, 1994) 126–32. 36

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by an absence of territorially delineated polities. Consequently, transnational structures are structurally barred from establishing a nation. This leads to systematic uncertainty concerning what the ‘collective’ is that decision-making within transnational structures is oriented against, just as it remains unclear who exactly is affected by such decisions. It thus remains far more uncertain which segment of their social environment transnational structures should observe in order to be able to adapt to changes in their environment. The concept of stakeholders can be as seen as a response to such uncertainty. Stakeholders are an institutionalised set of ‘actors’ who are granted the privileged status of ‘affected parties’ and thereby the right to ‘feed into’ decisional processes at the same time as they serve as the addressees for such decisions. Thus, stakeholder status serves as a form through which the entity in question delineates that section of its social environment which it regards as relevant for its operability. It is the form through which it transmits the social components it produces at the same time as it serves as a frame through which changes in the social environment can be observed, thereby providing a basis for increased adaptability through increased reflexivity. Although nationalist narratives claim otherwise, nations have rarely been particularly stable in terms of their extent and composition. The stakeholder form, however, is even more ‘fluid’. The dynamics of inclusion and exclusion operate at a far higher speed in relation to stakeholders, thereby making the borders of stakeholder regimes extremely contingent. This flexibility makes them more adaptive and cognitive-based than the form of the nation and thereby potentially even more evolutionarily superior than democratic structures. Nations and stakeholders rely on similar structural conditions insofar as their stabilisation is conditioned by the establishment of a corresponding legal form. As indicated, a nation is a legal construction, which is different from a mere multitude of people.39 As such, historically speaking, they were delineated and condensed through the emergence of elaborated rights regimes.40 It follows that modern nation state law was a hybrid law which emerged from within the political processes leading to the establishment of modern statehood. Similar developments can be observed today within transnational settings, insofar as new types of rights regimes are gradually emerging from within functionally delineated social processes.41 The emergence of a fully fledged legal regime from within the European integration process as well as the more embryonic development of rights within the WTO setting are obvious examples. But similar developments can also be observed within the private sphere with the emergence of (quasi-) legal regimes which refer to notions of rights within areas such as corporate social responsibility and private selfregulation.42 Martin Loughlin, ‘What is Constitutionalisation?’ in Dobner and Loughlin (n 14) 47–69, 51. Thornhill (n 5) 182. 41 Gunther Teubner, ‘Constitutionalising Polycontexturality’ (2011) 19 Social and Legal Studies 17–38. 42 eg Harm Schepel, The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets (Hart Publishing, 2005); Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart Publishing, 2010). 39 40


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(c) The Public Sphere, Transparency and Accountability In the nation state context the public sphere is widely understood as the framework through which the will-formation of the polity takes place, thereby indicating that it is one of the central sites for the formation of normative expectations.43 The public sphere serves as a network for the communication of individual opinions which allows such opinions to be transformed into public themes.44 As such it serves as a framework within which the move from individual wills to the general will unfolds through a translation of themes into a political language which is compatible with the state, thereby enabling a transfer of preferences and opinions from the wider society and into the state. Radical increases in social complexity, however, mean that only a very limited number of potentially relevant issues can be processed within the public sphere, just as the functioning of the public sphere has increasingly come to rely on a highly professionalised mass media system.45 In addition, the public sphere has increasingly been supplanted by a concept of public opinion which merely serves as an internal mechanism of complexity reduction for the political system insofar as it serves as a modus through which the number of politically relevant themes is narrowed down to, for the political system, a manageable number of themes.46 But even more important is that the public sphere essentially remains linked to the nation state form because it remains structurally conditioned by the existence of a fortified social space within which will formation can unfold.47 At best only a ‘weak’ public sphere, which is not institutionally linked to institutions with legally fortified decisional competences and which cannot therefore serve as a basis for will formation, exists in the transnational realm.48 In the absence of a fortified public sphere in the transnational realm, multinational firms, public and private international organisations and other transnational bodies have instead developed principles and policies of transparency and accountability. The core function of transparency and accountability measures is to provide frameworks capable of stabilising expectations in society vis à vis the entities in question by increasing their 43 44 45 46 47

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Jürgen Habermas, Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Suhrkamp, 1990 [1962]). Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp, 1992) 435–42. As also acknowledged by Habermas. See Jürgen Habermas, Ach, Europa (Suhrkamp, 2008) 131–90. Niklas Luhmann, ‘Öffentliche Meinung’ in Niklas Luhmann, Politische Planung. Aufsätze zur Soziologie von Politik und Verwaltung (Westdeutscher, 1971) 9–34. Though for the European context, see Klaus Eder, ‘Zur Transformation nationalstaatlicher Öffentlichkeit in Europa. Von der Sprachgemeinschaft zur issue spezifischen Kommunikationsgemeinschaft’ (2000) 10 Berliner Journal für Soziologie 167–84; Klaus Eder and Hans J Trenz, ‘The Democratising Dynamics of a European Public Sphere: Towards a Theory of Democratic Functionalism’ (2004) 7 European Journal of Social Theory 5–25. For the distinction between ‘weak’ and ‘strong’ public spheres see Nancy Fraser, ‘Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy’ in Craig Calhoun (ed), Habermas and the Public Sphere (MIT Press, 1992) 109–42.

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observability. This again implies an increased reliance on cognitive structures, since strategies of transparency and accountability enable other social entities to adapt accordingly without necessarily engaging in the demanding task of common will formation. This development has advanced the most within the corporate sphere, as is apparent in relation to the emerging global regime of accounting standards49 and the—somewhat battered—regime of rating agencies.50 But similar developments can also be observed in relation to public transnational organisations, such as through the emergence of legal frameworks enabling public access to documents within the EU51 and the World Bank.52 Similar developments can moreover be observed in relation to transnational NGOs, as is apparent in the form of the ‘International Non Governmental Organisations Accountability Charter’.53 (d) Representation, Delegation and Self-Representation Within continental philosophy, the notion of representation was deconstructed long ago. However, within legal and political theory, as well as in relation to the self-understanding and institutional setup of nation state democracies, the concept continues to play a central role.54 In the absence of representative structures of the kind that characterise democracies, entities operating in the transnational space have instead been forced to develop strategies of self-representation on the basis of—to use a Habermasian term— dramaturgical rationality. Transnational structures re-present themselves towards their environments, thereby actively creating an image of themselves for their environments to observe (thus being different from the passive form of observability outlined above). Public and private transnational organisations develop policy programs, corporate guidelines, codes and ethical standards, and establish targets. They publicly declare their intentions in the form of illocutionary acts which are logically self-binding,55 since otherwise they 49

50

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52 53 54 55

Christopher Humphrey, Anne Loft, Stuart Turley and Kim Jeppesen, ‘The International Federation of Accountants: Private Global Governance in the Public Interest?’ in Gunner Folke Schuppert (ed), Global Governance and the Role of Non-State Actors (Nomos, 2006) 245–72. Helmut Wilke, Global Governance (Transcript, 2006) 87–99. For a more general treatment of the financial system see Torsten Strulik and Helmut Wilke (eds), Towards a Cognitive Mode in Global Finance: The Governance of a Knowledge-Based Financial System (Campus, 2006). For example, Art 15 of the Treaty on the Functioning of the European Union (formerly Art 255 TEC) states: ‘In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’, and further: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.’ See also Regulation (EC) No 1049/2001. See eg ‘The World Bank Policy on Access to Information’, 2010 Word Bank Report 54873, www.worldbank.org. See www.ingoaccountabilitycharter.org. Brunkhorst (n 14) 195. For this perspective, see in particular the work of Martin Herberg: eg Globalisierung und private Selbstregulierung. Umweltschutz in multinationalen Unternehmen (Campus, 2007); ‘Global Legal Pluralism and


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would get caught up in performative contradictions which could be seized upon and used by ‘opponent’ groups (for example, by NGOs in relation to multinationals). This development can also be seen as being closely related to the development of a ‘right to justification’: the external actors that are (negatively) affected by a given activity, for example in relation to the effect of the exploitation of natural resources on local populations, tend to develop claims that the effect must be justified.56 Closely related to the concept of representation, delegation plays an important role in the institutional setup of states as well as in their interaction with the transnational layer due to the delegation of competences to international organisations. Delegation is, however, always more than just delegation. As also illustrated by the Comitology example propagated by Joerges, each delegation of legal competencies implies a de facto recognition of the autonomy of the structures to which competencies are delegated. Structures operating on the basis of delegation tend to exercise significant discretionary powers and to frame policy areas in a manner which produces a limited number of options for further policy development. They also tend to develop into epistemic communities which become worlds of their own just as they become policy actors in their own right. The delegation of competencies always implies a step into the unknown and the uncontrollable. Thus, a ‘gap’ exists between what can be controlled through delegation and the structures that are actually in place, thereby creating a functional need for the emergence of autonomous sources of the political within transnational settings.

5. CONCLUSION What are the implications of the distinctions between national and transnational forms of the political outlined above for the conflicts law approach developed by Joerges? The first is that transnational law is indeed politically informed insofar as the emergence of extensive patterns of transnational law seems to go hand in hand with the emergence of specific forms of transnational politics. In contrast to the perspectives advanced by the advocates of a cognitivised form of transnational law, the emergence of transnational law seems to be structurally conditioned by a co-evolutionary development where transnational law only is capable of establishing itself when concordant political developments unfold. The objective of developing a credible perspective capable of safeguarding democracy, on the other hand, looks far more precarious. Inveterate optimists might understand

Interlegality: Environmental Self-Regulation in Multinational Enterprises as Global Law-Making’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing, 2008) 17–40. 56

‘Justice, Not Democracy: Legitimacy in the European Union’ (2010) 48 Journal of Common Market Studies 903–21. More generally, see Rainer Forst, Das Recht auf Rechtfertigung—Elemente einer konstruktivistischen Theorie der Gerechtigkeit (Suhrkamp, 2007).

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the emerging transnational structures as essentially democratic.57 But when democracy is taken seriously, one is bound to arrive at the more sober conclusion that transnational structures are fundamentally a-democratic—not un-democratic structures which potentially can be the object of democratisation, but rather structures which are structurally incapable of being democratised in any deep sense. The important exception is the EU, which can be understood as a ‘hybrid’ located in-between nation states and transnational regimes. It combines strong state-like features with the kind of functionally differentiated and ‘cognitivised’ elements that dominate on the global plane. This is also reflected in the EU’s ‘quasi-democratic’ institutional structure.58 But, as noted, democracy has always been a limited modus of decision-making which has operated side by side with other forms of collective decision-making. The core sources of legitimacy are moreover functionally derived insofar as they are derived from the contribution a given social activity makes to society. It follows that both (national) positive and (transnational) negative integration are legitimate functions. Those who depart from a cosmopolitan vision of the world are moreover likely to see that the facilitation of transfer of the sort made possible by transnational legal and political setups remains an important objective in itself. Far more fundamental, however, is that positive integration implies that something or someone is included and thus that something or someone else is excluded. Increased ‘closure’ of nation states through positive integration is therefore logically linked to the simultaneous emergence of transnational counterweights capable of addressing the exclusionary consequences of positive integration. This insight is also inherent in Joerges’ point of departure, namely that national democracy is characterised by a structural deficit due to the extraterritorial effects that invariably emerge from the positive integration of society through democratic decision-making in national settings. Thus national and transnational ordering are related to one another in a mutually constitutive Yin and Yang like manner.

Joshua Cohen and Charles F Sabel, ‘Global Democracy?’ (2005) 37 NYU Journal of International Law and Politics 763–97; Gráinne de Búrca, ‘Developing Democracy Beyond the State’ (2008) 46(2) Columbia Journal of Transnational Law 221–78. 58 Kjaer (n 18) 141–62. 57