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orta Yorta (Gleeson CJ, Gummow, and Hayne JJ) at ¶ 50]. Having thus required that those claiming Native title demonstrate continuous assertion of rights and interests in the relevant lands and waters since the moment of the arrival of the British in 1788, and in a manner according to traditional laws and customs, the High Court conﬁrmed lower court decisions denying the Yorta Yorta people of northern Victoria and southern New South Wales continuing Native title over their traditional country. According to the decision of the Federal Court of ﬁrst instance, which the High Court declined to disturb, [t]he evidence does not support a ﬁnding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forbears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. [Members of the Yorta Yorta Aboriginal Community v Victoria & Ors (Olney J) at ¶ 129] Yorta Yorta comprehensively and categorically narrowed Australian Native title jurisprudence. The decision “creates a ﬁxed point for the recognition of Native title rights and a time from which the nature of those rights can no longer evolve. It constructs the date that the Crown acquired sovereignty in Australia, 26 January 1788, as the high point of the extent of Native title, after which it can only diminish” (Reilly & Genovese 2004, p. 30). From that moment onward, indigenous law and custom are denied creative life: “There could be no parallel law-making system after the assertion of [Crown] sovereignty” [Yorta Yorta (Gleeson CJ, Gummow, and Hayne JJ) at ¶ 44]. From that moment indigenous law and custom serve only as evidence of continuities in indigenous communities between 1788 and 1993, when passage of the Native Title Act for the ﬁrst time furnished means to vindicate such rights claims as met its criteria. “[T]he more laws and customs evolve, the less they conform to a static form of rights and, therefore, the less value they have as proof of Native title rights” (Reilly & Genovese 2004, p. 32). Thus, in 2008 the Federal Court would hold that [b]ecause it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system has had a continuous existence and vitality since 12 Tomlins sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. Native title claimants were therefore required to demonstrate “that the normative system that existed at sovereignty is substantially the same as the one that exists today” (Bodney v Bennell, pp. 312–13).14 BE OPERATIONAL, OR DISAPPEAR Australian Native title jurisprudence addresses issues of deadly seriousness—sovereignty and ownership, extinguishment and memory, colonization and indigeneity, power and right. It is clear that in the service of Gordian decision making, majoritarian Australian Native title jurisprudence seizes upon very deﬁnite conclusions about both law and history that no one could possibly describe as “historicist.” Conceived as a system, law is singular and continuous, the organic expression of the life of an identiﬁable people in a place, and an emanation of that people’s sovereignty over that place. Plurality can exist only in the form of a hierarchy that comports to sovereign determination. There can be no authority in parallel. Like law, history too is singular—linear and determinate, or at the very least determinable. In their admirable analysis of “Historical Understanding in Australian Native Title Jurisprudence,” Alex Reilly & Ann Genovese (2004, p. 41; see also Genovese & Reilly 2005) canvass the multiplicitous resorts to history in the process of Native title claiming, but simultaneously observe that of 11 judges involved in deciding the three Yorta Yorta cases, only one “attended to the possibility that a view of the past can be affected by the direction from which, and method by which, interpreters approach it” (p. 33). They rightly note that, so
far as law is concerned, sensitivity to historicist relativities invites dismissal, not praise of intellectual maturity. “[I]t is the fact that history seems able to encompass all these different perspectives which makes it appear to lack, and present itself as lacking, speciﬁc frameworks as to how to ‘do,’ tell and read history” (Reilly & Genovese 2004, p. 40). Nor is this mutuality of incomprehension peculiar to Australian Native title jurisprudence. Historicist contempt for juridical conceptions of history, and of law’s history, is hardly a stranger in the United States (see, for a recent example, Paley 2014). Its appearances recall the “incredulity toward metanarratives” that (“simplifying to the extreme”) Jean-Francois Lyotard (1993, p. xxiv) declared in 1979 to be the deﬁnition of the postmodern. But incredulity butters no parsnips. Lyotard himself knew this. We rightly associate Lyotard with the rejection of metanarrative, but we would do well also to remember his warning of where rejection was likeliest to wreak its havoc, and where it would have little effect: To the obsolescence of the metanarrative apparatus of legitimation corresponds, most notably, the crisis of metaphysical philosophy and of the university institution which in the past relied on it. The narrative function is losing its functors, its great hero, its great dangers, its great voyages, its great goal. It is being dispersed in clouds of narrative language elements...Each of us lives at the intersection of many of these. However, we do not necessarily establish stable language combinations, and the properties of the ones we do establish are not necessarily communicable.... 14The Australian Law Reform Commission recently noted the difﬁculties for Native title claimants entailed “by the adoption of a ‘laws and customs’ model for proof of native title,” namely the undue emphasis “on the continuity aspect in establishing connection.” As of April 2015 (the date of the Commission’s report), “Case law interpreting the Native Title Act has not examined alternative bases for structuring evidence to establish native title” (ALRC 2015, p. 177). www.annualreviews.org • Be Operational, or Disappear 13 The decision makers, however, attempt to manage these clouds of sociality according to input/output matrices, following a logic which implies that their elements are commensurable and that the whole is determinable. They allocate our lives for the growth of power. In matters of social justice and of scientiﬁc truth alike, the legitimation of that power is based on its optimizing the system’s performance— efﬁciency. The application of this criterion to all of our games necessarily entails a certain level of terror, whether soft or hard: be operational (that is, commensurable) or disappear. (Lyotard 1993, p. xxiv) “Be operational or disappear.” The injunction would be familiar to indigenous owners confronting Australian regimes of legal and historical interpellation. But its menace reaches into many other quarters as well. Law and history are key elements in the networks through which decision makers “manage these clouds of sociality.” Historicists may stand amazed at what they perceive as the na¨ıvet´e or worse apparent in law’s mobilizations of history. Law, in turn, “may be impatient with historians’ differences in ideology and method, casting the differences as a disciplinary weakness and hence a lack of authority” (Reilly & Genovese 2004, p. 40). Law’s impatience is likely to be rather more consequential than historicist amazement. Or to put it another way, our amazement is of strictly limited utility—“not the beginning of knowledge.” Unless, that is, “it is the knowledge that the view of history which gives rise to it is untenable” (Benjamin 2006, p. 392). THE RETURN OF METANARRATIVE What is to be done? For Reilly & Genovese (2004, p. 41), our view of historical practice must shift. Historians must make explicit “their expertise as theorists of the relationship between past and present.” This entails moving beyond historicism’s antifoundational incredulity toward metanarrative. It requires that historians recognize that law comes equipped with its own metahistory, and that they respond not with debunking but with a metahistory of their own (pp. 41–42). Historians must become, in a word, philosophical. They must engage with the philosophy of history. What options lie in this province? One might begin with legal history itself, and with what critical historicism declared redundant, the attempt to construct a metahistory of paradigm structures of legal thought championed by
Duncan Kennedy (2002, p. 631) and still pursued by him as “a legal academic school” of use “to the part of the intelligentsia of peripheral countries that is interested in left/modernist/post-modernist critiques of the current world system.” Kennedy’s (2006) recent work traces successive cyclic globalizing langues of legal consciousness—classical legal thought, socially oriented legal thought, contemporary legal thought—and the particular parole practices that instantiate them. The former are sharply delineated. The latter, inﬁnite in number, can only be sketched, hinted, skimmed, and generalized. The goal is structural, both in the sense of the creation of a taxonomy that sorts practices and in the sense of offering a method for historical legal study that itself embodies a way of thinking—a langue that may be instantiated in the paroles of others who have tested and will participate in testing the explanatory capacity of its structure of categories. The way of thinking is (unsurprisingly) critical legal studies (Kennedy 2006, p. 71). Kennedy’s structuralist history of legal thought serves our philosophical need for a means to undo law’s account of the relationship between past and present by challenging law’s account of itself—of how it comes to be as it is at any given moment, of why its decision making follows this or that course.15 In my Native title example, it offers a means to explain the course of doctrinal 15For a more empirical but no less powerful challenge to law’s account of how it came to be in a particular epoch, one with certain afﬁnities to Kennedy’s, see Brandwein (2011). 14 Tomlins inquiry and to explain that course in terms other than those preferred by its expositors. Kennedy’s structuralist metahistory, that is, offers a means to contain law’s own account of itself. A second and related course is suggested by Parker’s work, also on legal thought. As we have seen, Parker identiﬁes “historicization”—wrapping law in a temporal context—as contemporary critical scholarship’s conventional move. But just like Reilly & Genovese, Parker demonstrates that law has all manner of temporalizations and conceptions of historical direction of its own, which “the by now routine invocation of historical speciﬁcity serves to conceal from view,” to which law remains ﬁrmly attached over long periods of time (Valverde 2015, p. 45). Before they deploy their expertise on the relationship between past and present in the service of constructing a philosophical counterpoint to the relationship that law embraces, Parker’s work suggests, historians would do well to become far better acquainted with the multiple and sophisticated philosophies of history that the common law has generated for itself over the last four centuries. They will discover not only that multiple temporalizations of law have coexisted (and continue to coexist) within legal thought but also that “each temporalization of law, far from being hard-wired to a particular politics, [has] exhibited remarkable ﬂexibility and ﬂuidity” (pp. 45–46). Rather than lead law to history as a horse to water (the debunking historicist move), this course suggests that historians’ expertise as theorists of the relationship between past and present might better be employed in sifting law for its philosophies of history, and taking them seriously. Other opportunities exist beyond the immediate locale that legal historians inhabit. For more than two decades Mark Bevir has been developing a postfoundational philosophy of intellectual history that addresses precisely the relationship between past and present that Reilly & Genovese believe is the key to confronting and dispersing law’s tidal metaphors (see, for example, Bevir 1994, 1999, 2011a). For Bevir, as for Parker, historical distance—the gap between past and present—is the creation of modernism’s loss of faith in historical continuity. Historical distance became a problem because modernists rejected the teleologies upon which the nineteenth century had depended to render past and present one seamless developmental narrative. The obsession of modernist historiography then became the production of “epistemologies and methodologies” that historians could use to overcome the division their modernist skepticism had created between the facts of the past and accounts of them constructed in the present (Bevir 2011b, pp. 25–28). Postmodernism did nothing to alter this state of affairs other than to declare the impossibility of modernism’s quest to bridge the gap that it had created (Bevir 2011b, pp. 29–30). In contrast, Bevir’s postfoundationalism “undermines the idea that facts about the past are given outside present theories and narratives; it fuses past and present, facts and narratives” (p. 31) by insisting on the theory-laden nature of facts: For postfoundationalists, a fact is not given; it is a piece
of evidence nearly everyone in a given community either accepts or perhaps has good warrant for accepting given the other intersubjective beliefs of that community. This deﬁnition of a fact follows from recognition of the theory-laden nature of experience. Because theory necessarily enters into experience, we cannot describe a fact as a statement of how things are. Facts always entail prior categories. They are not certain truths. They are things we currently agree to accept as true given the other things we believe. (Bevir 2011b, p. 31) From this it follows that the content of facts “necessarily reﬂects the narratives in which they are located. There cannot be facts outside narratives,” which means that “[t]here cannot be access to the past outside of our present reconstruction of it” (p. 32). Why is this not simply a further retreat from objectivity into the radical relativism that, in Reilly & Genovese’s description, disarms history as expertise in any confrontation with law as www.annualreviews.org • Be Operational, or Disappear 15 interpellation? As Bevir notes, “Modernists might worry that giving up on the possibility of secure facts outside of narratives leaves postfoundationalists with no way to justify historical knowledge.” His answer is simple: “[H]istorical knowledge is objective not by virtue of its correspondence to given facts, but by virtue of its being the best account currently available” (Bevir 2011b, p. 32). Objectivity, in other words, “arises from comparing and criticizing rival webs of interpretations in terms of facts”—a process of dialectical competition “in which historians make better and better sense of the past” (Bevir 1994, pp. 334, 337). A similar refusal to accept either modernist distinctions or postmodern derelictions informs recent work by Constantin Fasolt (2015). Fasolt seeks to demonstrate the impossibility of writing the history of law without writing the history of justice. The categories cannot be separated. “Law and justice are thoroughly intertwined” (Fasolt 2015, p. 417). Fasolt’s is a critique of a historiography unable to imagine a position “apart from the contextual and contingent forces on the ground...a historiography with no place for justice” (Motha 2015, pp. 336–37). As a matter of language and logic, and of etymology, “the distinction between facts (of law) and opinions (about justice) hides the truth about the relationship between history, law, and justice...that without justice there is no history of law” (Fasolt 2015, p. 419). In Bevir’s terms, there cannot be facts of law outside narratives of justice. Fasolt’s demonstration has two parts. First, he carefully describes Ludwig Wittgenstein’s philosophical arguments for the position that for human beings to communicate in language they must agree both in deﬁnitions and in judgments. Second, he adopts the position and applies it to the intertwinement of law and justice: Their intertwinement consists of the very combination of agreement in deﬁnitions with agreement in judgments that is required for communication in any case, except that in this case the communication does not lie in the realm of theory but in the realm of practice, and that it does not result in statements of fact, but statements of what we ought to do (or ought not to do) because we know that it is right (or wrong). (Fasolt 2015, p. 443) This is not to argue that law and justice are one and the same, or that the one can be derived from the other. Law and justice “differ as deeply from each other as having rules differs from following rules, meaning from understanding, and thinking from acting...Law embodies our agreement in deﬁnitions of what we ought to do, and justice embodies our agreement in judgments of what that is” (p. 443). But they are, in effect, codependent. [W]ithout justice we cannot make the law stick to reality. There would be nothing for law to say. And without law, justice would be random. That is, there would be no justice at all. That constitutes their intertwinement. It gives us the language we need in order to refer to practical reality: the reality that we intend to turn into actual reality because we judge it to be good. (Fasolt 2015, p. 443) Fasolt’s account creates a philosophical foundation for the historicality of justice. Against the tendency of historicist critique to treat invocations of justice as ahistorical moves beyond history to timelessness (Tomlins 2015a, p. 256), Fasolt establishes that law and justice “consist of agreements in judgments and deﬁnitions
of what is right and wrong that are speciﬁc to speciﬁc communities of human beings at speciﬁc times and places” (Fasolt 2015, p. 449). He continues: As agreement in language must not be confused with the existence of a universal language, so agreement in ethics must not be confused with the existence of a universal moral code. Agreement in ethics rather means that there is no such thing as an agreement in judgments and deﬁnitions of what is right and 16 Tomlins wrong that none of us can join, and nothing someone can do that no one else can judge, no matter how deeply we may differ in our particular forms of morality, no matter how alien a different culture may seem to us at ﬁrst. All of us know the difference between right and wrong. In that regard we are agreed in ethics. But agreement in ethics does not mean that all of us make the same judgments and deﬁnitions of what is right and wrong. In that regard we differ from place to place and time to time. (Fasolt 2015, p. 449) This does not commit Fasolt to a relativist history, or relativist jurisprudence, that desires simply to reconstruct the nature of past agreements, knowing that they will likely be different from those of the present. “Knowing what those agreements were means being able to ﬁgure out what those past people thought they were saying and doing. But it does not amount to writing history. In order to write history, we need to say what they were saying and doing” (p. 458). The difference is that between using the criteria that governed past agreements to tell what happened in the past and using our own. To write history we must use our own criteria. Fasolt’s history judges. It takes sides, and takes responsibility for the side it takes: There is no way for us to say what they were doing unless we commit ourselves to the criteria on which the meaning of our words depends. This is a political commitment. Reducing history entirely to understanding the people of the past means making no commitment to any political community. That makes the truth about the past impossible to tell. (Fasolt 2015, p. 458) Eelco Runia’s (2014) Moved by the Past: Discontinuity and Historical Mutation is a ﬁnal entrant in this selection of recent work that, in the name of overcoming historicist paralysis, I offer as examples of what legal historians may gain from embracing a more overtly philosophical practice. Runia is, by choice, a metahistorian. In that, and in his determination that historians “engage large philosophical questions about the human condition” (Banerjee 2015, p. 963), he is—like the others discussed here—something of an exception in an academic vocation that modern historicism has rendered extraordinarily cautious in its encounters with ontology and epistemology. There resemblances end. Although, like Bevir, for example, Runia believes the past has presence, he does not accept that this is because the past simply cannot exist outside present theories and narratives. Rather, human being-in-the-world is saturated by the presence of the past because the relationship of past to present is not linear but spatial (Runia 2014, pp. 49–83; see also Valverde 2015). Linearity is our own organizational imposition on time. History, then, is not “a foreign country, something of the past” but “something of the present, something operative in the here and now... in us” (Runia 2014, p. 108). Its now-ness may inhibit, it may provoke, but either way it has effect, for we do not “own” the past. It owns us (pp. xii, 48). Historians, Runia argues, are obsessed with fashioning continuity between past and present, either through causal arguments in which the present is produced from the past by the necessary effect of concatenation, or through derivationist arguments in which the past is produced from the present by the present’s narratives of fact. Continuity fashions history as temporal linearity, a problematic characterization that historians then overcome (but in doing so, perpetuate) by strategies of representation: “Pasts—understood as the non-present, the absent—are literally re-presented in the present through historical narratives and/or imaging. The past thus seems accessible only as representation, which is then made to produce meaning through hermeneutic reading” (Banerjee 2015, p. 963). Representationalism allows the past to have meaning only in its relationship to the present, or in other words in its relationship to “history” considered as the science of representing. “[W]e make meaning of the past by referring it to the present, and of the present by referring it to the past,
producing a circularity in which the ontological status of the past becomes irrelevant” (Banerjee 2015, p. 963). Representationalism, says Runia (2014, p. 146), is “a histrionic defeatism www.annualreviews.org • Be Operational, or Disappear 17 about the ability to know the world, coupled to a dissimulated determination to turn the medium into the message.” In fact, Runia (2014, pp. 67, 105) argues, we exist in a condition of temporal simultaneity, in which “‘presence’ wells up from the past into the present” through metonymic “ﬁstulae” or “leaks” in time, in which “the past is, in a very real sense, bigger than us, an attribute of the ﬁeld we are in...a part of the reality in which we operate.” In this condition, fashioning continuity is no more than a refusal to tolerate mess—an organizational impulse that willfully ignores how continuity is inseparable—“‘thoroughly interwoven’ and ‘radically contiguous’”—from discontinuity, or “man’s inordinate ability to spring surprises on himself” (pp. xi, 55, 59). Discontinuity, indeed, is Runia’s preferred point of departure for a philosophy of history: “History progresses by unforeseeable leaps and bounds—leaps and bounds that are neither implied nor determined by what the actors—that is, ultimately, we ourselves—bring to the diving board” (p. xiii, and see also 158). To grapple both with the operative presence of the past and with the reality of discontinuity (the deed that precedes its comprehension, the sublime historical event, “monsters of our own making,” wars and revolutions) requires of historians a willingness to think courageously and creatively, “to come forward with questionable hypotheses about how we actually make history, how the new erupts from the old, how we mutate and evolve by acting in ways that somehow we recognize as historical” (p. 145). This boisterously idiosyncratic book invites historians not so much to make explicit “their expertise as theorists of the relationship between past and present” (Reilly & Genovese 2004, p. 41) as to discover for the ﬁrst time what that expertise can actually do once let loose upon the world. BENJAMIN AND NIETZSCHE To read Runia is to hear more than an echo of Walter Benjamin (see, for example, Benjamin 2002a, pp. 260–302; Benjamin 1999), not so much in Runia’s ultimate theory of history as a record of cultural innovation attributable to mutations induced by catastrophic human self-provocation—“the art of being our own best enemy” (Runia 2014, p. 202), although even here there is a resemblance— but certainly in his critique of the manufacture of continuity and of historicist conceptions of context and time. Both in his assault on representationalism and, for that matter, in the sheer exuberance of his argument, to read Runia is also to hear more than an echo of Nietzsche (see Constable 2005, pp. 8–44, 181). This conjunction is more than happenstance: Both Benjamin and Nietzsche stand as powerful philosophers of history, well outside the enfeebled canon with which Runia is so strongly at odds. By way of conclusion, let us consider how they can help us push back against regimes of interpellation and their injunction to be operational or disappear. Benjamin (2011, p. 197) rejects any conception of history that surveys “the inﬁnity of time” and humanity’s journey through it. Rather than appreciation of the historical object in its moment of past time, his purpose is to concentrate ferociously “as in a focal point” so as to disclose in the present “the elements of the ultimate condition...immanent state of perfection,” that can be quarried out of the rubble of the past. The exercise requires grasping history’s “metaphysical structure” (p. 197): Formerly it was thought that a ﬁxed point had been found in “what has been,” and one saw the present engaged in tentatively concentrating the forces of knowledge on this ground. Now this relation is to be overturned, and what has been is to become the dialectical reversal—the ﬂash of awakened consciousness...The facts become something that just now ﬁrst happened to us, ﬁrst struck us; to establish them is the affair of memory. (Benjamin 1999, pp. 388–89) 18 Tomlins In other words, the historical object is an experience of now, constructed for the ﬁrst time at the point where it comes alive. This was Benjamin’s
dialectical image—a montage of fragments uprooted from their given surroundings and established anew as a constellation by the now that recognizes the image thus formed. “The object constructed in the materialist presentation of history is itself the dialectical image. The latter is identical with the historical object; it justiﬁes its violent expulsion from the continuum of historical process” (Benjamin 1999, p. 475). All of the emphasis here lies on the realization of history as a revolutionary exercise in the destruction of contexts, whether temporal or spatial, the extraction of objects of attention from their suffocating embrace, and the reassembly of those objects as dialectical images that come to be visible precisely at the moment of their recognizability (Benjamin 2006, pp. 390–91). This history acts counter to its time by denying that time its most precious resource—its claim of continuum. In place of the continuities that organize historical objects, this history works to expel objects from those continuities, to explode the continuums that contain them (p. 396). To apply this conception of history to the Native title example is to answer the regimes that extinguish title by pinning it in a past place that is irretrievably gone with a construction of title that extracts it from that past place and anchors it to the present. The object (the assertion of title) is historical, but our understanding of the object is dialectical, imagistic, and the image is (necessarily) only ever recognizable now. A moment’s reﬂection will conﬁrm that far from being incomprehensible to Native title jurisprudence, an imagistic conception of history will be (philosophically) all too recognizable, for it resembles that jurisprudence’s own conception of history. It is precisely an imagistic understanding of title that Gordian Native title jurisprudence uses to extract title from the present, consign it to the past, and so extinguish it. This history ﬁghts regimes of interpellation on their own terrain. It can be defeated by them; it can also defeat. As for Nietzsche, with whom we began, he offers us three species of history, each pertaining explicitly to a respect in which “life is in need of the services of history”—the monumental, pertaining to the living human “as a being who acts and strives”; the antiquarian, to one “who preserves and reveres”; and the critical, to one “who suffers and seeks deliverance” (Nietzsche 1983, p. 67). Unchecked, each tends to excess. The monumental is selective. “[T]he great moments in the struggle of the human individual constitute a chain...[that] unites mankind across the millennia like a range of human mountain peaks” (p. 68). But if selection occurs without restraint, “the past itself suffers harm; whole segments of it are forgotten, despised, and ﬂow away in an uninterrupted colourless ﬂood, and only individual embellished facts rise out of it like islands” (p. 71). The antiquarian is indiscriminate. It assures humanity that it has a past, but “all is in the end blandly taken to be equally worthy of reverence” (p. 74). Only when “animated and inspired by the fresh life of the present” can the antiquarian moderate its “blind rage for collecting.” If allowed to collect without restraint, humanity becomes “encased in the stench of must and mold” (p. 75). The monumental disserves humanity by ignoring much of the past, the antiquarian by suffocating humanity in a hypostasized past. The critical allows humanity to confront these excesses, for the critical grants power over the past—the power to judge. “If he is to live, man must possess and from time to time employ the strength to break up and dissolve a part of the past by bringing it before the tribunal, scrupulously examining it and ﬁnally condemning it” (Nietzsche 1983, p. 75). But the critical has its own excess, for it is not justice or mercy that judges the past but life, and from life’s standpoint there is no past that is not worthy of condemnation. “[T]o live and to be unjust is one and the same thing” (p. 76). And so, it seems after all that we are unable to escape our cross-purposes. Life—“that dark driving power that insatiably thirsts for itself...always unmerciful, always unjust, because it has www.annualreviews.org • Be Operational, or Disappear 19 CONCLUSION A philosophical turn in legal history is a turn against historicism’s universalization of contingency. It is a turn undertaken in a search for ground on which to ﬁght regimes of interpellation—sciences of universal becoming (Nietzsche 1983, p. 77
)—whose underlying message is “be operational or disappear.” The example of Native title provides a warning both of the relentlessness of those sciences and of the inability of historicism to confront them. Other examples, other jurisprudences from other jurisdictions, would serve no less clearly. The objective of the turn is metahistorical, to ﬁnd means to mobilize history and law as memory and right against their incarnation as regimes of interpellation that threaten us with erasure. The range of possibility is wide, the ﬁeld is open. We encounter, in Benjamin and Nietzsche in particular, philosophies of history that replace historicism’s context and critique with history written at the standpoint of a transformed “now”—the standpoint, that is to say, of life’s second nature, learned from historical knowledge of the errors of the ﬁrst. Both, as is well known, contemplate at least the possibility of completion, of ﬁnality, in place of the endlessness of re-presentation. In both cases completion is a work of destructive creation (e.g., Benjamin 1999, p. 475; 2002b; Nietzsche 2003). In neither case is that outcome remotely certain. “But here and there a victory is nonetheless achieved” (Nietzsche 1983, p. 77). DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. 20 Tomlins LITERATURE CITED Assoc. Am. Law Schools (AALS). 2016. 2015–16 Directory of Law Teachers. Washington, DC: Assoc. Am. Law Schools Aust. Law Reform Comm. (ALRC). 2015. Connection to country: review of the Native Title Act 1993 (Cth). ALRC Rep. 126, Aust. Law Reform Comm., Sydney, Aust. Banerjee P. 2015. Eelco Runia. Moved by the Past: Discontinuity and Historical Mutation. Am. Hist. Rev. 120(3):963–64 Barker F. 1993. The Culture of Violence: Essays on Tragedy and History. Chicago: Univ. Chicago Press Benjamin W. 1999. The Arcades Project, transl. H Eiland, K McLaughlin. Cambridge, MA: Harvard Univ. Press Benjamin W. 2002a. Eduard Fuchs, collector and historian. See Eiland & Jennings 2002, pp. 260–302 Benjamin W. 2002b. Theological–political fragment. See Eiland & Jennings 2002, pp. 305–6 Benjamin W. 2006. On the concept of history. In Walter Benjamin: Selected Writings, Volume 4, 1938–1940, ed. H Eiland, MW Jennings, pp. 389–400. Cambridge, MA: Harvard Univ. Press Benjamin W. 2011. The life of students. In Early Writings, 1910–1917, ed./transl. H Eiland, pp. 197–210. Cambridge, MA: Harvard Univ. Press Bevir M. 1994. Objectivity in history. Hist. Theory 33(3):328–44 Bevir M. 1999. The Logic of the History of Ideas. Cambridge, UK: Cambridge Univ. Press Bevir M. 2011a. The Logic of the History of Ideas—then and now: The author responds. Intellect. Hist. Rev. 21(1):105–19 Bevir M. 2011b. Why historical distance is not a problem. Hist. Theory 50(4):24–37 Blackshield T, Williams G. 2010. Australian Constitutional Law and Theory: Commentary and Materials. Sydney: Fed. Press. 5th ed. Blackstone W. 1979. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. 4 vols. Chicago: Univ. Chicago Press Bodney v Bennell (2008) 249 ALR 300 Boorstin DJ. 1941. Tradition and method in legal history. Harvard Law Rev. 54(3):424–36 Brandwein P. 2011. Rethinking the Judicial Settlement of Reconstruction. Cambridge, UK: Cambridge Univ. Press Constable M. 2005. Just Silences: The Limits and Possibilities of Modern Law. Princeton, NJ: Princeton Univ. Press Dorsett S, McVeigh S. 2012. Jurisdiction. Abingdon, UK: Routledge Eiland H, Jennings MW, eds. 2002. Walter Benjamin: Selected Writings, Volume 3, 1935–1938. Cambridge, MA: Harvard Univ. Press F
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approach develops theories of private legal ordering, involving lawmaking, adjudication, and enforcement through nonstate actors and institutions. The second approach provides a theoretical framework for sociolegal study of the transnational processes through which legal norms are constructed, ﬂow, and settle across national borders. The third develops theory to critique and reformulate the concept of law in transnational terms that include nonstate processes. 231 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION Law encounters, responds to, and shapes an immense amount of transnational economic and social exchange. As information processing and communication technologies revolutionize, transnational social interaction and interdependence deepen. Transnational knowledge practices and social risks spread. Time and space compress. The response to these changes has been a dramatic increase in what can be viewed as transnational legal ordering. Much theorizing of transnational legal ordering revolves around three mismatches: those between global markets and national law, between public law capabilities and private demands, and between private lawmaking and public goals (Mattli 2015). The ﬁrst spurs legal ordering that is transnational in its geographic scope. The second drives private lawmaking through private contract and private regulation. The third catalyzes hybrid forms of lawmaking, involving international hard and soft law, private legal ordering, and their interaction. These developments challenge the traditional concept of the national public sphere for the making of law (Fraser & Nash 2014). Jessup’s 1956 Storrs Lectures are widely cited as the ﬁrst to give prominent attention to the concept of “transnational law,” which he deﬁned as “all law which regulates actions or events that transcend national frontiers” ( Jessup 1956, p. 2). Jessup’s concept reﬂected a functional concern that the combination of national and international law is inadequate to regulate transnational activities. He thus included in his concept, in addition to public and private international law, “other rules which do not wholly ﬁt into such standard categories” ( Jessup 1956, p. 2). Yet he did not signiﬁcantly develop that residual category of “other rules.” Since then, scholarly interest in the phenomenon of transnational and global legal ordering has grown dramatically. In 2015, 15 journals used the term “transnational law” or “transnational legal” in their title, and that number expands to 40 journals when including the terms “global law” or “global legal.”1 Although scholarship increasingly refers to transnational law and legal ordering, it is often vague regarding what these terms encompass, so that the proliferating literature has become a jungle without a map. A theory of transnational legal ordering should deﬁne its terms so that it is amenable to theoretical scrutiny and empirical engagement. Halliday & Shaffer (2015b,c), for example, deﬁne the terms transnational, legal, and order for purposes of engaging in multidisciplinary, empirically grounded theory building and application. They contend that a transnational legal order seeks to produce order in an issue area that actors construe as a problem, uses law to address the problem, and is transnational in its geographic scope. They stipulate that a transnational order is legal insofar as it adopts legal form to address a problem, its norms are produced or conveyed in connection with a transnational legal body or network, and/or it directly or indirectly engages national legal bodies. By order, they refer, sociologically, to shared norms and institutions that orient social expectations, communication, and behavior. By transnational, they signify ordering that transcends and permeates nation-state boundaries. Yet, as we show, there remains considerable variation in the use of these terms. This article is cartographic in laying out the current state of transnational legal theorizing and application of such theories. Its aim is to provide a clearer understanding of this proliferating ﬁeld. The article categorizes and evaluates three theoretical approaches to transnational legal ordering that respectively (a) assess private legal ordering through private contract, private regulation, and private dispute settlement (covered in the section Transnational Legal Ordering as Private Legal Ordering); (b) analyze the recursive interaction of public and private norm-making and practice 1These ﬁgures are based on a search of the WorldCat database on January 15, 2016. The search created a much larger list of journals that we edited after reviewing it (on ﬁle with author). 232 Shaffer at the transnational, national, and local levels that (potentially) gives rise to transnational legal orders transcending, permeating, and transforming nation-states (examined in the section Transnational Legal Ordering as Transnational Construction, Flow, and Settlement of Legal Norms); and (c) critically reconﬁgure the
concept of law (addressed in the section Transnational Legal Ordering and the Concept of Law). Before we turn to these approaches in detail, let me make a reﬂexive caveat on this essay in light of transnational processes more generally. The scholarship reviewed was in English or is translated into English, and the majority of it is by scholars from the Global North. In part, this reﬂects the subject of study since English has become the lingua franca of the commercial, ﬁnancial, and economic world that drives much transnational legal ordering, and scholars from non-native-English-speaking countries increasingly publish in English, especially when writing on transnational topics. And yet, critically, this mapping exercise reﬂects a challenge for mapping exercises more generally. Because scholarship tends to reﬂect where one sits, there is a need to publish and include theorizing and empirical application of theory by scholars from different backgrounds, and in particular those from the Global South (de Sousa Santos 2014, Rodr´ıguezGaravito 2015). TRANSNATIONAL LEGAL ORDERING AS PRIVATE LEGAL ORDERING A ﬁrst group of scholars focuses solely or predominantly on private legal ordering in theorizing the transnational. Most of them maintain that the state lacks the will, capacity, or efﬁciency to create, apply, and enforce law for the coordination and regulation of behavior. This theorizing is grounded in the nature of the actors (private actors) and the form of legal ordering (private contract, standard setting, assessment, and enforcement), giving rise to a-national law or “law beyond the state” (Carbonneau 1998, Michaels 2007). The theorists can be broken down into three subgroups: (a) law and economics scholars who focus on privately made commercial law, or lex mercatoria, as a more efﬁcient and optimal form of lawmaking and dispute settlement; (b) sociolegal scholars who evaluate private regulation by business and civil society groups; and (c) private international law scholars who address private international law as a backdrop to private legal ordering, which has been often complicit in privatization, but should be protective of public values. Many private law scholars traditionally have viewed law as coming from society as opposed to from the state (Michaels & Jansen 2007), and they have been particularly prominent in developing transnational legal theory that focuses on the role of private actors. Much of this work has focused on the role of commercial actors in lawmaking and enforcement today. Private professionals develop standards across sectors through standard form contracts and standard-setting organizations, whether independently or through government delegation (B¨uthe & Mattli 2011, Schepel 2005). Lloyds of London sets reinsurance law, the International Accounting Standards Board (IASB) accounting rules, the International Swaps and Derivatives Association (ISDA) master agreements for derivatives, and the International Chamber of Commerce (ICC) rules for letters of credit (Botzem & Quack 2006, Levit 2005, Morgan 2008, Shaffer 2009). Private actors are central to the development of rules governing the Internet, called lex informatica; sport, called lex sportiva; and commerce, called lex mercatoria. Online companies create online consumer protection standards, coupled with methods of payment, security, certiﬁcation, and online dispute settlement (Calliess & Zumbansen 2010). Governments create commissions composed of private professionals to develop corporate governance codes that the state does not codify but backs by mandatory disclosure requirements regarding them (Calliess & Zumbansen 2010). This turn to theorizing private transnational law reﬂects an analogous turn in the social sciences to the study of “governance” in contrast to “government” (Djelic & Sahlin-Andersson 2006). www.annualreviews.org • Theorizing Transnational Legal Ordering 233 The rise of commercial arbitration as privatized dispute settlement has been central to driving this approach (Dezalay & Garth 1996, Gaillard 2010, Hale 2015). Today, a substantial proportion of private contracts contain an arbitration clause, which can be deployed in over 200 arbitration centersaroundtheglobe(StoneSweet2006).A communityofelitelawyersandarbitratorspopulate this ﬁeld (Dezalay & Garth 1996, Karton 2013). The ﬁeld’s professional culture is one in which private arbitrators service transnational business as its agents, in contrast to judges appointed through public processes by a state or international organization (Karton 2013). States, which can be viewed as “competition states” in regulatory competition with each other (Cerny 1997, Genschel & Seelkopf 2015), further this process by competing to attract arbitration business through national laws and international treaties that limit state
interference with arbitral rulings. Although enforcement of arbitration awards formally depends on national courts, national courts reputedly are used to enforce only a small percentage of them so that privatized dispute settlement appears semiautonomous in practice (Calliess & Zumbansen 2010b, p. 122). We, however, lack reliable data given the conﬁdential nature of most awards. Law and Economics of the New Lex Mercatoria A group of theorists working in the law and economics tradition focus solely on commercial actors in the bottom-up, spontaneous creation of transnational legal orders. They maintain (although against signiﬁcant contention from historians)2 that modern forms of transnational legal ordering have long roots, reﬂected in the lex mercatoria (or law merchant) developed as custom by private guilds and commercial traders during the Middle Ages before the ascent of nation-states (Milgrom et al. 1990). They contend that we are now witnessing the rise of a “new law merchant” grounded in private contract and commercial arbitration (Cooter 1996). The law and economics approach to transnational legal ordering stresses the optimality of private ordering because of reduced transaction costs and the inadequacy of state-based law for the modern business community (Cooter 1994; Dalhuisien 2013; Hadﬁeld 2001, 2009), whether for innovation contracts (Gilson et al. 2013), global supply chains (Gerefﬁ& Lee 2012), just-intime manufacturing, ﬁnance (Dalhuisien 2013), or otherwise. Cooter (1996, p. 1643) maintains that in a complex, rapidly changing economy, “efﬁciency requires decentralization [of lawmaking] to become more important,” giving rise to a new law merchant involving “specialized business communities,” in which law “arises outside of the state’s apparatus.” Hadﬁeld (2001) goes further, contending that to avoid the complexity and transaction costs of the public law system (including its choice of law rules), decentralized privatized regimes for commercial law should compete against each other (including regarding their lawmaking, adjudication, and enforcement systems), so that companies may choose among them. She distinguishes law’s economic function from its justice function, maintaining that its economic function is to provide structure “for the operation of efﬁcient markets,” and is paramount in commercial law governing commercial relations (Hadﬁeld 2001, p. 40). For these theorists, transnational private regimes exist when private parties are the source of the law’s content (contract and background private rules) and dispute settlement services (such as arbitration) are privately provided, and the legitimacy of the legal order is based on the parties’ consent (as opposed to public lawmaking’s democratic status). The authors and subjects of law are 2Historians contest the idea that lex mercatoria during the Middle Ages was based on uniform, universal merchant custom (Kadens 2012, 2015). Kadens (2012) insists that the historical evidence shows that it was based on private ordering through contract where local custom and regulation were used to address gaps. 234 Shaffer thus the same—private parties. Public law, at best, provides Hayekian background rules to facilitate efﬁcient private ordering, but Hadﬁeld (2009) contends that the background rules for commercial law should be privatized as well. Private actors are codifying commercial norms through longstanding organizations such as the ICC and Unidroit (Berger 2010, Michaels 2007), but private legal service companies could, in theory, compete with and displace them. In this way, law would not only reﬂect and support global capitalism, but itself become a commodity. Although state law authorizes party autonomy to contract out of state-based systems, the empirical, sociolegal question becomes whether such state authorization is needed for the creation of a transnational legal order (Glenn 2005). Private Social Regulation A secondsubgroupofprivatelawmakingtheoristschallengestheﬁrstsubgroup’sfocusonefﬁciency on the grounds that it elides questions of power, consent, externalities, and the mismatch of global markets and public interest regulation (Calliess & Zumbansen 2010; Cutler 2003; Muir-Watt 2011, 2015). These theorists examine the role of private lawmaking that has an explicit regulatory purpose(Cafaggi2011,Calliess&Zumbansen2010,Woodetal.2015).Theyanalyzetransnational private regulation of the social by the social. This second subgroup of theorists explicitly addresses private lawmaking in its broader regulatory dimensions, applying the logic of private lawmaking beyond commercial law to all areas of regulatory protection developed by the social welfare state during the twentieth century. Such areas include labor law (Backer
2016), human rights law (Backer 2005, 2007), environmental law (Meidinger 2009, Perez 2011), consumer law (Calliess & Zumbansen 2010), and ﬁnancial law (Black & Rouch 2008, Miller & Cafaggi 2013). Much of the resulting regulation is of a soft-law (voluntary) nature, exempliﬁed by the United Nations Guiding Principles on Business and Human Rights (or “Ruggie Principles”). It thus contrasts with the hard law for commerce and investment grounded in binding contracts enforced through arbitration and backed by courts (Cutler & Dietz 2016). Yet, such transnational soft law can be, and at times is, transformed into binding requirements through transnational supply chain contracts, giving rise to new “transnational regulatory regimes” that affect power relations among private parties (Cafaggi 2013, Cafaggi & Pistor 2014). Business and civil society networks drive such legal ordering. Much of food safety depends on private regulatory regimes developed by retailers, where supermarket chains, like Walmart and Sainsbury’s, create their own private food safety standards and enforce them through private contract (Chalmers 2003, Meidinger 2009). These standards are often developed through private standard-setting networks, such as GLOBALG.A.P., which incorporate transnational soft law such as the Hazard Analysis and Critical Control Points guidelines published by the UN Food and Agriculture Organization (FAO), and which are enforced through contract. Private standard-setting organizations themselves are often governed by transnational soft-law standards, such as those set forth in the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) Guide for certiﬁcation schemes published by the International Organization for Standardization. Sustainable forestry regulation, for example, is driven by transnational civil society–developed regimes, such as the Forest Stewardship Council (FSC), which mandates that certiﬁcation bodies comply with the ISO/IEC Guide. The FSC’s substantive standards, in turn, are enforced by retailers, such as Home Depot, that require compliance with the FSC’s certiﬁcation system as a condition for purchasing lumber (Cashore et al. 2004). In these areas of social regulation, private actors serve as lawmakers, adjudicators, and enforcers, giving rise to what can be viewed as functionally differentiated transnational private regulatory legal orders. These transnational legal orders ﬁll signiﬁcant gaps in national legal systems that www.annualreviews.org • Theorizing Transnational Legal Ordering 235 have limited resources to monitor global ﬁrms and supply chains (Cafaggi 2013). They rely on private standards and contracts; certiﬁers to provide the functional equivalent of adjudication; and enforcement through market exclusion, whether by industry concerned with the ﬁrm’s reliability or by retailers out of fear of consumer boycotts ampliﬁed by the media (Backer 2007). Such private regulation creates a form of transnational harmonization whose jurisdictional scope is deﬁned functionally (in terms of the subject area in question) rather than territorially. The result is a sectoral fragmentation of transnational law that contrasts with the hierarchical unity of nationstate territorial legal orders (Karton 2016, Kjaer 2014). Such transnational private legal ordering has regulatory and distributive effects implicating third parties, giving rise to analysis of their legitimacy, accountability, quality, and effectiveness (Black 2008, Cafaggi 2014). These theorists are divided in their treatment of nonstate law. Some theorize developments in terms of the marginalization of state law and the autonomy of private legal ordering in light of the complexity of modern society and the decline of state capacities (Calliess 2004; Teubner 1992, 1997), whereas others assess the interaction of private regulation with state law, including as a supplement or complement (Cafaggi 2015, Michaels 2007, Wood et al. 2015), giving rise to the mutual increase of state-based and privately made law (Kjaer 2014). Some of these latter theorists are covered as well in the second section regarding the interaction of public and private actors in the transnational construction and conveyance of legal norms across borders and across levels of social organization. Private International Law Conceived as a Regulatory Device A third subgroup of private law theorists has parallels with the second subgroup in that each builds on the work of Karl Polanyi to contend that the economy must be embedded within society ( Joerges & Falke 2011). This third subgroup, however, theorizes a different way that this embedding can occur—that of private international law and its choice of law techniques to govern transnational activities. Private international law consists of national law addressing the questions of jurisdiction, applicable law, and recognition and enforcement of
judgments, including arbitral awards. It thus governs the interface of different national legal systems and private ordering. This approachviewstransnationallegalorderingintermsofthedecentralizedinteractionofnation-state legal systems in relation to private ordering (Michaels & Jansen 2006, Muir-Watt 2015, Wai 2005, Whytock 2009). Because this subgroup is linked to traditional state conceptions of legal ordering, it could be included under the second approach addressed below in the section Transnational Legal Ordering as Transnational Construction, Flow, and Settlement of Legal Norms. It is included here because it comprises private law scholars who directly interact with decentralized theories of private transnational legal ordering, including regarding the state’s complicity in them. This group of private international law scholars contends that private international law can and should counter the “liftoff ” of transnational business law as an autonomous ﬁeld outside public regulatory control (Wai 2002). They critique conventional private international law theorists who maintain that private international law is apolitical and neutral in advancing the aims of private party autonomy. As Muir-Watt (2011, 2015) writes, private international law is complicit if it accords business rights to self-organize while shielding business from duties, thus granting it immunity and impunity. National courts do so when they apply private international law to recognize and enforce arbitral awards that include public law claims, such as consumer, labor, human rights, antitrust, and securities law claims. They do so when they permit vulture funds to seize the assets of poor, ﬁnancially distressed countries in sovereign debt defaults, and even siphon off development aid. And they do so when they fail to provide jurisdiction against multinational 236 Shaffer companies for their human rights and environmental abuses abroad (Muir-Watt 2011, Wenar 2016). These theorists view semiautonomous lex mercatoria commercial regimes in a dialectical relationship with national regulatory law. For them, although there is “transnational liftoff ” of business, there must also be “juridical touchdown” of national law to account for those affected by transnational business activities (Wai 2002), which they call private international law’s regulatory dimension (Muir-Watt 2011). Michaels (2007) thus contends that theorists are empirically wrong when suggesting that the lex mercatoria is a-national, at least from the perspective of the state. The state remains part of transnational legal ordering, whether as an accomplice, facilitator, enforcer, or check. But the state is only a part of such ordering, which, in transnational perspective, entails “law beyond the state” (Michaels 2007). TRANSNATIONAL LEGAL ORDERING AS TRANSNATIONAL CONSTRUCTION, FLOW, AND SETTLEMENT OF LEGAL NORMS A second, broader approach toward theorizing transnational legal ordering incorporates both public law and privately made norms and institutions. It thus parallels Jessup’s (1956, p. 2) conception of transnational law as comprising public and private international law and such “other rules which do not wholly ﬁt into such standard categories.” Yet this approach parts from Jessup’s in focusing not on transnational law as a body of law, but rather on the processes through which legal norms are constructed, ﬂow, settle, and unsettle across levels of social organization, from the transnational to the local (Halliday & Shaffer 2015b,c). The approach builds concepts for empirical study of the different stages of transnational legal ordering. In particular, it assesses the framing, emergence, propagation, contestation, resistance, settlement, institutionalization, nesting, decline, and fall of transnational legal orders (Halliday & Shaffer 2015c). These processes are top-down, bottom-up, horizontal, and transversal, as legal norms are uploaded and downloaded, imported and exported (de Sousa Santos 2002; Dezalay & Garth 2002; Friedman 1996; Koh 1996, 1998, 2006), and developed in one domain to contest and shape those in another ( Joerges 2011, Shaffer & Pollack 2009). Actors engage in diagnostic struggles; conﬂicts are papered over with contradictions and indeterminacies; and “actor mismatch” arises between those who diagnose problems, negotiate legal texts, and implement and apply them, so that problems remain and can give rise to new, recursive cycles of lawmaking (Halliday & Carruthers 2007, p. 1152). Over time, these processes can lead to normative settlements comprising new working equilibria regarding the appropriate legal norms and institutions to order particular issues. One can point to a transnational legal order when the legal norms concord across levels of social organization (Block-Lieb & Halliday 2015; Hall
iday & Shaffer 2015b,c). Figure 1 provides a simpliﬁed depiction of these processes. For these theorists, the term transnational does not suggest the withdrawal or disappearance of states as major actors in transnational governance, nor that transnational processes are autonomous of national law and institutions. Rather, they stress the following points: ﬁrst, that much legal ordering transcends nation-states; second, that states and state institutions are far from the only important actors in lawmaking beyond the state; and third (and critically), that to understand transnational legal ordering, one should assess the interaction of lawmaking and practice across different levels of social organization, from the transnational to the local. Such an approach addresses the production of legal norms and institutional forms, their migration across borders, the role of intermediaries in these processes, and contestation and homologies among the transnational, national, and local levels (Dezalay & Garth 2002, Shaffer 2013). www.annualreviews.org • Theorizing Transnational Legal Ordering 237 Recursive mechanisms: • Diagnostic struggles • Actor mismatch • Contradictions • Indeterminacy Recursive mechanisms: • Diagnostic struggles • Actor mismatch • Contradictions • Indeterminacy Recursive mechanisms: • Diagnostic struggles • Actor mismatch • Contradictions • Indeterminacy Recursive mechanisms: • Diagnostic struggles • Actor mismatch • Contradictions • Indeterminacy Transnational lawmakers Transnational lawmakers National lawmakers National lawmakers Local lawmakers Local lawmakers Conflict Competition Negotiation Cooperation TLO 1 TLO 2 Figure 1 Recursivity in transnational legal orders (TLOs) (ﬁgure adapted with permission from Halliday & Shaffer 2015b,c). This approach thus explicitly incorporates public lawmaking and public international law within its analytic scope (Halliday & Shaffer 2015b,c; Jessup 1956; Shaffer 2015a). As public international law opens to nonstate parties, as in the areas of human rights, crime, trade, and investment, and as international courts expand in their jurisdiction and exercise increased interpretive authority (Alter et al. 2016), international law contributes more directly to transnational legal ordering across domains of social life. Public international law harmonizes even parts of private international law, giving rise to transnational legal orders of particular geographic and substantive scope on choice of law and enforcement questions (Whytock 2016). As states delegate greater public powers and informal norm-making to supranational organizations and transgovernmental networks, states become agencies that implement rules of extrastate origin (Glenn 2005). These processes are particularly pronounced regionally in the European Union but are also developing elsewhere. Transgovernmental networks are often central to these processes, involving exchanges among networks of agencies from states whose sovereignty is “disaggregated” (Slaughter 2004). Such disaggregation reﬂects functional differentiation of lawmaking within the state itself (cf. Kjaer 2014, Teubner & Korth 2012). This approach also encompasses private lawmaking and its interaction with public law within a single analytic frame, such that governance becomes pluralist, multipolar, and heterarchical (Ladeur 2004). Abbott & Snidal (2009) develop the concept of a “governance triangle” in the production of environmental, labor, and human rights standards, where the triangle’s three points are states (at times operating through international organizations), ﬁrms (at times operating through trade associations), and nongovernmental organizations (NGOs) (at times operating through NGO coalitions). Individual initiatives can be plotted within the triangle as a function of the actor or combination of actors engaged. These initiatives compete, overlap, conﬂict, borrow, and 238 Shaffer coordinate with each other at different phases of the regulatory process, involving agenda-setting, norm formation, implementation, monitoring, enforcement, and review (Wood et al. 2015).3 Public international law contributes to the development of transnational private regulation on account of international law’s weaknesses as well as its constraints. For example, on the one hand, the 1992 UN Conference on Environment and Development failed to adopt binding international rules for sustainable forestry, creating a regulatory gap. On the other hand, although individual states could attempt to address this gap within their jurisdictions, they were constrained by other international rules, those of the General Agreement on Tariffs and Trade (GATT). After Austria was pressed to remove an import ban against unsustainably harvested lumber to avoid a GATT challenge, it helped ﬁnance a private certiﬁcation system for sustainable lumber that became the FSC. The International Tropical Timber Organization, formed by the same 1992 UN Conference that failed to create substantive standards, eventually endorsed such private standard and certiﬁcation systems (Bartley 2007). Private and public actors directly and indirectly negotiate with each other, so that transnational
private regulation can be viewed in the shadow of public law, and (to turn the conventional metaphor on its head) public law can be viewed in the shadow of transnational private regulation. At times, states steer and orchestrate nonstate governance initiatives (Abbott et al. 2015), but one may question who at times does the orchestrating (Braithwaite & Drahos 2000). Public law often follows transnational private lawmaking, whether by incorporating and validating private standards, acquiescing to them, or complementing and supporting them, such as through disclosure requirements and fair trading laws. At times, state law implements private standards, as in the case of ﬁnancial derivatives law incorporating ISDA standards, or securities law incorporating privately developed IASB accounting standards. In other cases, private associations turn nonbinding international soft law into binding contractual obligations, such as when GLOBALG.A.P. incorporates UN FAO food safety guidelines in its contracts. The public-private interaction is both horizontal (between transnational private associations and international and regional public organizations) and vertical (between transnational private associations and states). These processes give rise to complex mappings of transnational legal orders that vary in their substantive and geographic scope (Halliday & Shaffer 2015b,c). This approach starts by viewing transnational legal ordering as beginning with the framing and construction of a problem to be ordered (Halliday & Shaffer 2015b,c). Behaviors can exist for a long time before they are considered a problem, so that the construction is not a natural one. Broader cultural norms often operate as a form of framing that informs any conceptualization of a problem and thus any particular frame. The work of world polity theory is particularly important in this regard because it assesses the role of such cultural processes as individualization and rationalization (Frank et al. 2010), scienticization (Drori & Meyer 2006), and marketization (Djelic 2006). Critical and postcolonial scholars similarly reveal how norms of economization, individualization, and instrumental rationality increasingly induce policy makers to frame problems and their solutions in economistic terms of optimization (Brown 2015, Escobar 2011). Scholars unpack the politics of framing through discourse analysis to reveal the frame’s theoretical and ideological content, involving hidden contours of power (Halliday et al. 2009, Rajah 2015).4 Contests among discourses and frames are frequent. Rajah (2015), for example, shows 3At times, public and private processes provide new experimentalist architectures for governance transcending the nation-state (De Burca et al. 2013). 4Forms of power include material power (such as material resources), institutional power (to frame issues and shape agendas), and structural and productive power (that shapes perceptions, understandings, and identities) (Barnett & Duvall 2005). www.annualreviews.org • Theorizing Transnational Legal Ordering 239 the importance of framing in rule-of-law conceptions, which she contends shifted during the second half of the twentieth century from a human rights orientation toward a neoliberal one. The frame’s content can also affect the settling of legal norms and their institutionalization (Merry 2015). Lloyd & Simmons (2015) show how the established, broad frame of criminal law facilitated transnational consensus regarding human trafﬁcking. They contend that if a discursive frame enhances state sovereignty and executive power within states, such as the criminal law frame eventually adopted, then national authorities are more likely to accept and propagate it. Framing is critical for civil society organizations and developing country constituencies. Braithwaite & Drahos (2000) stress the need of civil society actors to focus on principles to frame global business regulation. Shaffer et al. (2008, 2015) and Santos (2012) emphasize the importance for developing countries to build legal capacity if they are to participate in shaping the drafting, interpretation, and application of international rules. Networks from the Global South, including those that can be viewed as “counter-hegemonic” (de Sousa Santos 2002), can play increased roles as economic and ideational power shifts, whether regarding human rights or economic development (Baxi 2012, Darian-Smith 2013, Rajagopal 2003, Rodr´ıguez-Garavito 2014, Rodr´ıguez-Garavito & de Sousa Santos 2005, Trubek et al. 2013). Sociolegal scholars, for example, assess the role of framing to advance economic, cultural, and social rights in Latin America (Rodr´ıguez-Garavito 2015). Transnational legal ordering involves processes that are not simply top-down and linear. Rather, actors from particular national and local settings actively promote national and local legal norms globally, giving rise to globalized localisms (de Sousa Santos
2002), such as US antitrust, bankruptcy, and other business norms (Braithwaite & Drahos 2000). Local actors likewise do not simply apply these norms but resist, block, translate, adapt, and hybridize them, giving rise to localized globalisms (Campbell 2004, de Sousa Santos 2002), such as for women’s rights (Merry 2006a), money laundering (Rocha Machado 2012), intellectual property (Kapczynski 2009), and competition law (Klug 2013). These processes layer on and interact with each other (Newman & Farrell 2014). Bartley (2011, p. 517), for example, illustrates the ongoing importance of Indonesian state law and customary norms in relation to transnational private sustainable forestry standards and fair labor regimes. His work shows that, at the implementation stage, a private regime—that of the FSC—“necessarily intertwines with domestic law and other types of rules.” He thus critiques the private standards literature for focusing on “governance gaps,” rather than on the layering and interaction of transnational private regulatory regimes with territorial and customary forms of legal ordering. Empirical studies regarding lex mercatoria similarly point to the ongoing role of national law and institutions (Shaffer & Ginsburg 2012, Whytock 2010). In short, local and transnational norms can become enmeshed, involving the “interlegality” of rival transnational and local, modernist and traditional, norms, symbols, and knowledge (de Sousa Santos 2002, p. 472). These theorists study the propagation of legal norms across national jurisdictions through different mechanisms involving different legal forms. Transnational legal ordering through contracts or private standards differs from that through treaties, which differs from that through model codes or soft law principles, benchmarks, and peer review. The legal norms are propagated through different mechanisms, such as reciprocity, coercion, market discipline, modeling, persuasion, learning, and socialization (Braithwaite & Drahos 2000, Halliday & Osinksy 2006). The mechanisms are historically contingent in light of facilitating circumstances and precipitating Powerful states and regional groups, such as the United States and European Union, have traditionally played predominant roles, as have governmental agencies, businesses, professionals, and civil society groups within them. 240 Shaffer conditions (Halliday & Shaffer 2015b) that induce the expansion or contraction of transnational legal ordering. Helleiner (2015) shows, for example, how mechanisms of coercion, market discipline, and persuasion through epistemic networks gave rise to transnational legal ordering of ﬁnance during the 1990s. Yet changes in the international political economy weakened the ability of the United States and the International Monetary Fund to use coercion, politicization following the 2007/2008 ﬁnancial crisis curtailed the soft power of technical networks, and changed market conditions undermined market disciplines. This approach evaluates the role of intermediaries as conduits, carriers, and “ports of entry” of transnational legal norms (Resnik 2006). The role of intermediaries has long been central in the transmission and structuring of legal norms and institutions, as stressed in the study of colonial legal regimes. As Benton (2002) writes, such intermediaries should not be viewed as mere collaborators or resisters because, by using law within particular local and transnational contests, they contribute to the production of legal frameworks through praxis. The intermediaries include governmental representatives, law ﬁrms, private professionals, academics, think tanks, and NGOs. The conduit can involve a small number of people, operating like taps over a pipeline, who facilitate or staunch the norms’ ﬂow. Understanding their roles involves “mapping the middle” (Merry 2006b). Intermediaries vary in terms of their competencies (such as their legal expertise), power (in transnational and local contexts), and loyalty (to the transnational and local levels) (Carruthers & Halliday 2006). They are particularly prominent in the highly transnationalized ﬁelds of commerce and ﬁnance (Dalhuisen 2013, Djelic & Quack 2010), but they play signiﬁcant roles across areas of law. They are critical in producing “the credibility and legitimacy” of transnational norms (Garth & Dezalay 2010). These intermediaries translate and adapt national and local legal norms to transnational contexts, and transnational legal norms to local ones, thus facilitating their propagation. Studies reveal that transnational norms are adapted more easily if packaged in familiar terms and if they accommodate established local hierarchies, but “they are more transformative if they challenge existing assumptions and power relationships” (Merry 2006a, p. 22). Dezalay & Garth (2002) exemplify the mistake of viewing nation
-states as homogeneous, rather than in terms of contests of power (or “palace wars”) that intersect with transnational processes. They show how elites invest in transnational discourses to advance their positions, whether in the area of human rights or the liberalization of the economy. Other local actors do as well to upend hierarchies, such as in the area of women’s rights, by remaking transnational discourses into the local vernacular (Merry 2006a). Transnational legal processes empower these intermediaries. National governments and associations depend on them to present national positions at the transnational level, and transnational organizations depend on them to convey them to national and local sites. When the intermediaries have a professional stake (as in such practice areas as intellectual property, competition, tax, and bankruptcy law), they become important allies in embedding the norms (Shaffer 2014). These theorists scrutinize contestation and resistance within transnational legal ordering because, from a legal realist perspective, law and legal norms are not things but are relational and develop and change through struggle, including through their interpretation (Shaffer 2015a). Studies reveal that transnational legal ordering involves considerable contestation and resistance at different sites and levels of social organization (Newman & Farrell 2014). Contests can be triggered because of a transnational legal order’s success; its institutionalization can raise actor awareness that the stakes are higher than previously recognized (B¨uthe 2015). The very success of a transnational legal order can also catalyze new problems that spur efforts to create additional transnational legal orders (Helfer 2015). Genschel & Rixen (2015) show that the institutionalization of the transnational legal order on double taxation from the 1920s to 1960s created a new problem of tax competition and tax havens, which stimulated the drive for a new www.annualreviews.org • Theorizing Transnational Legal Ordering 241 transnational legal order to combat “harmful tax competition” (Avi-Yonah 2016). Helfer (2015) demonstrates how the drive for a transnational legal order for patents catalyzed a new transnational legal order for access to medicines. Local actors in weak positions in transnational norm-making often successfully resist implementation at the local level and thus foil transnational powers (Halliday & Carruthers 2007, Rajagopal 2003). Resistance can take the form of symbolic compliance. Payne (2015), for example, shows how the implementation of accountability norms against political leaders for human rights violations is foiled through show trials, selective trials of former allies who are now opponents, and foot dragging where appeals overturn successful prosecutions. Resistance is more likely successful where the transnational norms are perceived to be instruments of coercion or imposition, and thus illegitimate (Halliday & Carruthers 2009, Merry 2006a).5 Yet even such resistance works within particular structures and involves interaction that recursively can contribute to the structuring of transnational legal ordering, as stressed by historians (Benton 2002) and sociologists of contemporary globalization processes (Halliday & Carruthers 2009). This approach assesses the array of impacts of successful transnational legal ordering that can transform states (Leibfried & Z¨urn 2005, Sassen 2006, Shaffer 2013). Where national law and local practices are structured and imbricated by transnational processes across a domain of social life, they involve much more than changes in law. They affect the boundary of the market and the state (affecting what the state does), the allocation of institutional power within the state (such as between executives, legislatures, judiciaries, and administrative bodies), the role of expertise and professions (creating incentives to invest in them), and accountability mechanisms subject to transnational normative frames (such as through peer review, monitoring, and reporting) (Shaffer 2013, 2014). They thereby affect relations of power, including among private actors (Cafaggi & Pistor 2014). Transnational legal orders do not inexorably have such effects. They do so conditionally in relation to particular factors such as the social legitimacy of transnational legal norms, the role and place of intermediaries, and homologies with local power conﬁgurations and contexts (Dezalay & Garth 2002, Shaffer 2013). These scholars examine how law has a particular logic that can exercise normative power because it carries epistemological force, deﬁning categories and systems of meaning (Merry 1992). Because theories of transnational legal ordering move beyond public international law governing interstate relations to norms that permeate national and local law and practice, the epistemology of these norms gains much greater salience. From the perspective of Bourdieusian ﬁeld theory, transnational legal ordering is a form of institutionalized power that sets the rules
of the game (Dezalay & Madsen 2012, Djelic & Sahlin-Andersson 2006). TRANSNATIONAL LEGAL ORDERING AND THE CONCEPT OF LAW Building from such theorizing, a third approach develops conceptual and critical theory to interrogate and reformulate the concept of law in transnational terms. Overall, scholars working in this vein can be broken down into three groups. The ﬁrst develops a positive theory of privately made transnational law in terms of the provision of functional equivalents to state-based law (Hadﬁeld & Weingast 2014). A second group theorizes the transnationalization of state law (Glenn 2005, 2013; 5The importance of legitimacy in shaping outcomes catalyzes attempts to enhance legitimacy warrants, such as by incorporating broader stakeholder participation, enhancing transparency, developing and tapping into expertise, justifying decisions through reason giving, and measuring and reporting outcomes (Halliday & Carruthers 2009, Kjaer 2014). Halliday & Carruthers (2009), for example, show how this drove actors to shift norm-making for bankruptcy law from the International Monetary Fund and World Bank to UNCITRAL. 242 Shaffer Halliday & Shaffer 2015b,c). A third group, building from systems theory, adopts the concept of transnational law as a critical tool to reconstruct legal theory in transnational societal terms (Kjaer 2014, Teubner 1997), including to problematize the boundaries between law and nonlaw (Calliess & Zumbansen 2010, Perez 2015). These theorists show how transnational legal ordering, in contrast to state-based law, is delocalized (as opposed to territorial), has plural sources (beyond the state), is polycentric (and not hierarchical), and often has a cognitive/technocratic logic (Heyvaert 2016). Conventionally, most analytic legal philosophy grounds its analysis in state-based legal systems, whether because state law represents an ideal type of legal system that combines primary and secondary rules of recognition, change, and adjudication (Hart 1961); because of the inner morality of such law in terms of formal criteria (Fuller 1964); or otherwise. It traditionally has given little attention to international law, much less to transnational law. The proliferation of transnational activity, the development of transnational communities, and the range and variety of regulation operating beyond the nation-state have placed pressure on analytic theory to revise its concepts to be relevant in light of the importance of transnational legality in social practice (Cotterrell 2008, Schultz 2014, von Daniels 2010). A ﬁrst group of scholars have turned to the tradition of legal pluralism to incorporate nonstate concepts of law (Tamanaha 2001, 2015; Twining 2009). The earlier aims of legal pluralists (who were often anthropologists) were to recognize indigenous groups’ norms and systems as law as they struggled against colonial powers’ claims of introducing the rule of law in the name of civilization, as well as the claims of subordinate groups in relation to the state (Merry 1988). Today, legal pluralist arguments are used as well to justify and legitimize self-organization by powerful corporate actors, supported by elite lawyers, as autonomous of state regulation (Schultz 2014). Law and economics theorists have used the idea of a new lex mercatoria to develop positive legal theory that encompasses nonstate norm-making and enforcement as law. Hadﬁeld & Weingast (2013, p. 29), for example, deﬁne “the essence of law” as “a set of rules characterized by legal attributes, such as generality and universality, and an authoritative steward for removing ambiguities and adapting the rules to changing circumstances.” That steward, they maintain, can be a private body, and the enforcement of the rules can be decentralized through shunning, shaming, and the denial of market opportunities. In stressing the role of a steward, they posit parallels with those who view law in terms of an institutionalized process (Roberts 2005), but they differ in viewing that process as a private one. Private regulatory theorists similarly deploy a concept of law that encompasses nonstate lawmaking and enforcement by business and civil society actors. These theorists note the role of institutionalized functional equivalents of lawmaking, adjudication, and enforcement in the private sphere (Cafaggi 2011, Wood et al. 2015). They include customary norms, model laws, codes of conduct, standards, and benchmarks as “law” to the extent that they establish normative expectations, create a sense of obligation, include some sort of coordinating and sanctioning system, and shape behavior. Historically, Glenn (2005) looks to transnational traditions of law that have modern analogs to assess a transnational concept of law. Religious law and indigenous
law, representative of early nonstate law traditions, for example, have long been transnational in scope. Today, new transnational epistemic communities similarly develop normative systems working through “dialogic webs,” which are facilitated by modern communication technologies (Braithwaite & Drahos 2000, Cotterrell 2008). These norms are reﬂected in transnational private standard setting and standard form contracts that regulate discrete functional domains, in which state law either is irrelevant or provides a slim backdrop at best. www.annualreviews.org • Theorizing Transnational Legal Ordering 243 A group of private international law theorists also advance pluralist, decentralized conceptions of transnational law. They maintain that conﬂict-of-laws techniques permit both regulatory pluralism and cosmopolitanism in transnational legal ordering (Berman 2014, Michaels 2014, MuirWatt 2011, Wai 2005). Joerges (2011) advances this approach through a conﬂict-of-laws framework used as a conceptual tool for understanding how normative legal systems are mediated. Here, however, choice of law involves conﬂicts not between two nation-state laws, but rather between the laws of one functional regime and another. These theorists thus shift conﬂict-of-laws theory from the territorial logic of nation-states to the functional logic of differentiated regimes in transnational and world society (Fischer-Lescano & Teubner 2004). For these theorists, this decentralized form of law is superior to claims of hierarchy in public international law, avoids the universalist pretensions of global law, and helps check the claims of autonomy of private legal ordering. Second, state law itself can be viewed in transnational terms. This approach includes legal positivists because the law is still, in part, often formally grounded in state enactment or backed by stateenforcement.Yetthesourcesoflawaretransnationalfromasociolegalperspectivebecausethe state in many cases becomes an agent in adopting rules of extrastate origin. The rules are frequently developed by public international organizations, disaggregated networks of administrative ofﬁcials in particular functional domains, private parties, and professional associations (Glenn 2005, 2013; Halliday & Shaffer 2015b,c). Within state law, “persuasive authority” has long been a key part of the common law tradition, and now has its transnational analogs in national court engagement with and references to foreign and international law and judicial opinions ( Jackson 2009), as well as to business custom. The ius commune in the civil law tradition (which was grounded in trans-European private law discourse) is similarly reemerging in the development of general principles of law for commerce and other ﬁelds (Glenn 2005). Transnational judicial dialogues, facilitated by communication technologies, support these developments (Slaughter 2004). In the area of private international law, national law can take a transnational legal turn through national judges developing a legal Esperanto of common private international law principles (Scott 2009). A third group composed mainly of German and German-trained theorists develops a concept of transnational law in systems-theoretic terms. Systems theorists ground their theory of law in society, not the state, viewing the state as a historically contingent and rather recent form of organization of politics. The works of Teubner, Kjaer, Calliess, and Zumbansen exemplify this approach but vary in terms of whether they view transnational law as autonomous of and displacing nation-state law (Teubner 2013), as layered on nation-state law (Kjaer 2014), or as constituting a “hybrid” public-private system (Calliess & Zumbansen 2010). These theorists also build from legal pluralism [going back to Ehrlich (2001) and his concept of societal legal orders], but coupled with the systems theory of Luhmann (2004) and its concept of a “world society.” Most of these theorists started as private law scholars, which explains their focus on private legal ordering grounded in the law of contract and business organization. Teubner adapts systems theory’s concept of a “world society” to develop a theoretic approach to the emergence of “global law without a state” involving issue-speciﬁc, self-contained, sectorally differentiated, nonstate legal regimes (Fischer-Lescano & Teubner 2004, Teubner 1997, Teubner & Korth 2012). These regimes incorporate information from the external environment (such as contestation or crises) and translate it into the regime’s own terms, such that, in systems-theoretic terms, they are cognitively open (to the environment) but normatively closed (in their own logic and discourse). Teubner highlights lex mercatoria to theorize how the practice of private lawmaking and conﬂict
resolution, such as through arbitration, establishes the validity of private law, with legal validity being established reﬂexively (or “autopoietically”) through decisions using the binary code legal/illegal (Fischer-Lescano & Teubner 2004, Teubner 1997). In this way, private contract 244 Shaffer becomes not only a source of law but “even the primary source of law” (Teubner 1997, p. 14). These contracts are self-validated in that they refer to arbitration, which, in turn, conﬁrms their validity. This work is driven, in part, by a normative impulse to consider solutions to the challenges of societal complexity and the social crises it generates in light of the decline of the regulatory capacity of the state as a problem solver since the high point of the social welfare state (Teubner 2004). Teubner (2013) thus, in parallel, reconceptualizes constitutionalism in systems-theoretic terms involving autonomous, functionally differentiated, nonstate institutions. He contends that each differentiated social system—such as the economy, science, technology, the media, and the health system—performs constitutional functions of securing its own autonomy and self-limiting its reach. For Teubner, social communication within each system provides the constituent power of the constitution, which in turn creates collective identities and a sense of “constitutional consciousness” within the system. Teubner contends that these functionally differentiated societal constitutions are critical as stabilization mechanisms today in light of the “totalizing tendencies” of systems, such as the economy under neoliberal norms. Kjaer (2014), a student of Teubner, develops, in parallel, a concept of functionally differentiated transnational normative orders within a broad historical perspective. Like Teubner, he theorizes developments in light of the need for stabilization mechanisms in a world characterized by increased societal complexity and fragmentation. Kjaer’s core claim is that there are three distinct organizational logics that layer each other: that of the nation-state with its territorial logic, the transnational with its logic of “functional differentiation,” and the premodern with its traditional logic of stratiﬁcatory differentiation. He contends that in light of social complexity and fragmentation, the transnational logic of functional differentiation is deepening in relation to the state’s territorial logic, so that new stabilization mechanisms are required. He historically contextualizes transnational legal ordering and contends that, following the twentieth century’s two world wars and the accompanying decline of Europe, transnational organizations increasingly emerged with distinct functional mandates that now play roles analogous to those of former colonial empires. With Teubner, Kjaer breaks with Luhmann, who implicitly viewed constitutions in relation to nation-states. Yet Kjaer also differs from Teubner in contending that transnational constitutionalism is grounded in organizations, exempliﬁed by the World Trade Organization, the ISO, and Fairtrade Labeling Organizations International, as opposed to functional systems as a whole. These organizations lack a demos, a public sphere, and democratic representation, so that new politics arise to legitimize them, a politics that relies on the concepts of stakeholders (in place of a demos); transparency (in place of the public sphere); and an organization’s self-representation, such as through reason-giving (in place of democratic representation). This transnational political logic is more cognitively based than normatively driven (compared with nation-state constitutional orders), resulting in new forms of technocratic managerialism. Calliess & Zumbansen (2010, p. x) develop a related theory in which they posit “transnational law primarily as a methodological device rather than as a demarcated substantive ﬁeld of law.” They use this device to interrogate the contexts and assumptions of those distinguishing “law” from “nonlaw.” Their aim is to assess the role of law as a regulatory and legitimating device in the context of global markets, multinational corporations, societal interdependence, and society’s increasing functional differentiation. In doing so, they return to and build from pluralist and systems theory insights regarding the role, function, and status of law (Zumbansen 2012b). Advancing a postmodernist, process-based conception of law as a form of communication, they propose viewing transnational law through the metaphor of a “rough consensus and running code,” a contemporary high-tech variant of the “living law” of Ehrlich (2001). The phrase, taken from Internet governance, portrays transnational private law in terms of open-ended “societal www.annualreviews.org • Theorizing Transnational Legal Ordering 245 CONCLUSION The point of theorizing is threefold: to evaluate concepts, orient empirical projects, and inform social action. The three approaches covered in this article have each of these aims. Each approach shows why law can no longer be viewed through a purely national lens. Each provides tools to assess legal developments through
a transnational optic. Each provides a conceptual framework for seeing the world in particular ways and thus contributing to action in the world in light of that vantage. The three approaches differ in how much attention they pay to state law, ranging from none (those that characterize the transnational as autonomous private legal orders) to a great deal (those that conceive of the transnational in terms of the construction and ﬂow of legal norms involving public and private actors). But all of these approaches cast their theoretical lens on legal ordering that transcends state law and are not limited to traditional international law (Shaffer 2015a). Overall, the approaches break down the traditional divide between the national and the international, conventionally reﬂected in international relations theory (Clark 1999), in much of sociology (Chernilo 2007), and in legal theory (Glenn 2005, Twining 2009). They expand conventional, positivist, state-based conceptions of law. They decenter territorially differentiated national legal orders and place them in complex relations with other forms of normative ordering (Black 2001, Halliday & Shaffer 2015a). They are pluralist in incorporating the study of nonstate actors in lawmaking and practice and thus counter methodological nationalism and blur the public-private distinction (Darian-Smith 2013, Zumbansen 2012a). What they have in common is their claim that if the traditional center of legal and sociolegal theory has been the nation-state and nation-state law, then, to borrow from W.B. Yeats, “the center cannot hold” (Menkel-Meadow 2011). In a socially interconnected world, transnational legal ordering is needed. It also raises concerns. Transnational legal ordering can help provide global public goods, such as a stable climate, and 246 Shaffer help protect individual rights and enforce state, individual, and corporate obligations, such as freedom of expression, access to health care, nondiscrimination rights, and the accountability of political leaders for gross human rights violations. Transnational legal ordering also raises longstanding concerns of domination by powerful actors, whether they are states, such as the United States; private actors, such as large corporations and holders of capital; or the two together (Anghie 2007, Chimni 2004, Pahuja 2011). A richer understanding of transnational legal ordering facilitates both critique and reform. Otherwise scholars are blind to how law operates, and they replicate that blindness in their teaching, their scholarly work, and their normative prescriptions. Further theorizing of transnational legal ordering is critical for orienting empirical work and informing pragmatic social action. Such empirical work and social action, in turn, lead to theory’s reﬁnement. And so we go on and, in doing so, perhaps change the way things are. DISCLOSURE STATEMENT The author is not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. LITERATURE CITED Abbott K, Genschel P, Snidal D, Zangl B. 2015. Orchestration: global governance through intermediaries. In International Organizations as Orchestrators, ed. KW Abbott, P Genschel, D Snidal, B Zangl, pp. 3–36. Cambridge, UK: Cambridge Univ. Press Abbott K, Snidal D. 2009. The governance triangle: regulatory standards institutions and the shadow of the state. In The Politics of Global Regulation, ed. W Mattli, N Woods, pp. 44–88. Princeton, NJ: Princeton Univ. Press Alter K, Helfer L, Madsen M. 2016. How context shapes the authority of international courts. Law Contemp. Probl. 79(1):1–36 Anghie A. 2007. Imperialism, Sovereignty and the Making of International Law. Cambridge, UK: Cambridge Univ. Press Avi-Yonah R. 2016. Hanging together: a multilateral approach to taxing multinationals. In Global Tax Fairness, ed. T Pogge, K Mehta, pp. 113–28. Oxford: Oxford Univ. Press Backer LC. 2005. Multinational corporations, transnational law: the United Nations’ norms on the responsibilities of transnational corporations as a harbinger of corporate social responsibility in international law. Columbia Hum. Rights Law Rev. 37(2):287–390 Backer LC. 2007. Economic globalization and the rise of efﬁcient systems of global private law making: Wal-Mart as global legislator. Conn. Law Rev. 39(4):1738–84 Backer LC. 2016. The collapsing structures of regulatory factories: Rana Plaza and the transnational legal order. UC Irvine J. Int. Transnatl. Comp. Law. In press Barnett
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These include the lack of settled law establishing businesses’ human rights responsibilities, the absence of courts to adjudicate corporate human rights violation cases, and the international focus on voluntary principles over legal obligations. Despite this unpropitious international climate, civil society mobilization and judicial innovation have advanced accountability efforts and overcome the strong veto power of business in some countries, often creatively blending international and domestic law. These efforts from below provide access to justice for victims and potential models for overcoming the current accountability gap. 63 Click here to view this article's online features: • Download ﬁgures as PPT slides • Navigate linked references • Download citations • Explore related articles • Search keywords ANNUAL REVIEWS Further INTRODUCTION Over the past several years, two sets of literatures related to corporate complicity in human rights violations have emerged. One focuses on business and human rights in the current global context. The other examines accountability for corporate complicity in the human rights abuses committed in dictatorships and armed conﬂicts using transitional justice mechanisms (e.g., truth commissions, trials, reparations). This review holds that the two literatures could be productively connected, providing insights into pathways to reduce corporate abuses and strengthen human rights cultures. The business and human rights literature places emphasis on international law, courts, and governmental institutions, sometimes recognizing the barriers such factors pose to raising the costs to corporations for committing human rights violations. The international emphasis often overlooks the innovative transitional justice processes carried out in domestic courts around the world driven by civil society mobilization that make corporate human rights violations in past authoritarian regimes or armed conﬂict situations visible and attempt to hold businesses accountable for those abuses. These domestic-level forces attempt to rescue the universal application of international human rights law and apply it to grave situations of corporate violations. A multidimensional approach to overcoming impunity for past human rights violations combines domestic and international processes. The four factors identiﬁed in this approach— international pressure, domestic judicial leadership, civil society demand, and weak veto players— thus provide a useful framework for analyzing together the literatures on transitional justice for past corporate human rights violations and business and human rights. After setting out key concepts, the review examines its development through these four factors. CORPORATE COMPLICITY IN HUMAN RIGHTS VIOLATIONS: LAW AND SOCIAL SCIENCE By corporate complicity, we mean businesses’ assistance or participation in (aiding and abetting) gross violations of human rights (genocide, torture, crimes against humanity, war crimes) perpetrated by the state or state-like actors (e.g., paramilitary or rebel forces that control territory) during authoritarian or civil conﬂict situations. Types of corporate acts might include direct complicity in criminal violence (e.g.,
joint criminal enterprise and conspiracy to violence), violations of human rights under labor law (e.g., slave labor), ﬁnancing of repression or war crimes, or illegal enterprises (e.g., knowingly procuring or proﬁting from violence, such as through blood diamonds) (Maassarani 2005, T´ofalo 2006). Complicity does not require ideological afﬁnity between corporations and their state or state-like partners. Indeed, corporate entities often defend their actions as a result of extreme pressure rather than willful collaboration. The social sciences recognize the particular logic surrounding corporate complicity in authoritarian regimes and armed conﬂicts. The theory of the bureaucratic authoritarian state (O’Donnell 1973) explained the appeal to business of the coups that toppled democratic regimes throughout the Americas and elsewhere and implanted repressive authoritarian systems. Businesses united forces with the military and technocrats to eliminate the perceived communist threat and to advance “capitalist deepening” projects. Businesses’ close relationship to the state afforded them protection from the national security system, and they often collaborated with it through blacklists and ﬁnancing to remove so-called subversive union leaders or workers (Gualde 2013, Payne 1994). In civil conﬂicts in Africa and Latin America, much of the literature focuses on human rights abuses resulting from business alliances with armed actors over conﬂict minerals (e.g., blood diamonds) and illegal trade (Reno 1997). Businesses also engage in state or paramilitary “protection rackets” 64 Payne· Pereira (Stanley 1996) to protect their business operations, or proﬁt from the sale of or trade in the tools of repression or war (Avant 2005, Cooper 2002). Banks also ﬁnd lucrative ﬁnancing opportunities in repressive or civil conﬂict systems, particularly when international aid is cut for humanitarian or human rights reasons (Bohoslavsky 2012, Hutto & Jenkins 2010). The weak or nonexistent rule of law in conﬂict or authoritarian rule contexts, moreover, means that businesses that abuse do so with impunity (Dandan & Franzki 2013, Hauﬂer 2010, Reno 1997, Sharp 2013). Despite widespread knowledge, very few trials for corporate complicity have occurred, and many fewer have found corporations guilty (Payne & Pereira 2015). Accountability for corporate complicity in authoritarian and civil conﬂict situations has thus been referred to as the “missing piece of the puzzle, to pursue the full spectrum of justice and remedy for authoritarian and civil conﬂict periods” (Bohoslavsky & Opgenhaffen 2010, p. 160). Not surprisingly, Latin America, the leader and innovator in transitional justice, has also become a leader and innovator in efforts around corporate complicity (Hutto & Jenkins 2010), especially Argentina (Bohoslavsky & Opgenhaffen 2010; Verbitsky & Bohoslavsky 2013, 2015; Payne & Pereira 2015), Chile (Bohoslavsky & Rulli 2010), and Brazil (Bohoslavsky & Torrelly 2014). To date, however, corporate violations have remained largely “at the periphery of transitional justice work” (Sharp 2014, p. 2). Social scientists, legal scholars, and practitioners have only begun to consider how to incorporate corporate complicity into the transitional justice framework (Michalowski 2014; Payne & Pereira 2015; Roht-Arriaza 2013, 2015). Legal scholars debate the reasons behind the failure to prosecute corporate complicity. For some, the legal responsibility of corporations or their employees in violations under international human rights law constrains accountability efforts. As one scholar stated, “it cannot be said that international human rights law involves direct legal duties for businesses” (Ford 2015, p. 37). Yet for others, corporate complicity has been “legitimized and incorporated into the fabric of international law” (Skinner 2008, pp. 356–57). The plethora of studies and debates in legal scholarship exists in large part due to the need for legal interpretation in the absence of settled international law. The business and human rights literature incorporates into the debate over international law the question of compliance by ﬁrms and enforcement by states. The political economy of business and human rights suggests that states are less likely to sanction businesses for abusive behavior in industries integral to the national economy or national security (Ite 2004, Madami 1999, Moran 2002). States may fear that companies threatened with judicial action may relocate to more permissive investment environments (Dougherty 2011). They may also fear the repercussions for foreign investment if they are perceived as hostile to business and foreign investment. Recognizing these
constraints, some scholarship has considered persuasion and low-cost mechanisms as a safer pathway than trials to enhance corporate compliance to international human rights standards (Balmer et al. 2011, Buhman 2013, Laufer 2003). Other scholars contend that only when violations are perceived by businesses to increase production costs or reduce proﬁts will they comply with global human rights norms (Deitelhoff et al. 2010, Porter & Kramer 2006, Wolf et al. 2007). Combining these social science and law approaches to explain the failure to hold corporations accountable for human rights violations resembles the four-factor multidimensional approach (Payne et al. 2015). In that approach, international pressure, domestic judicial leadership, civil society demand, and weak veto players are necessary to overcome impunity for human rights violations. The framework provides a useful explanation for continued impunity identiﬁed in the literature. Drawing from legal scholarship, the absence of settled international law on corporate complicity limits international pressure for accountability. Not only do domestic judicial institutions feel little international pressure, they cannot draw on settled international law or judicial www.annualreviews.org • Corporations and Human Rights 65 action to advance cases in local courts. Civil society advocates also focus more on state violations than those carried out by nonstate actors as a more effective and well-established area of mobilization. Finally, owing to its global and domestic power, identiﬁed in the business and human rights literature, business plays a powerful veto role in the development and implementation of accountability for corporate complicity. How the literature has examined these four factors is further elaborated below. INTERNATIONAL PRESSURE FOR CORPORATE ACCOUNTABILITY The concept of transitional justice emerged from the Nuremberg Trials and their value in holding state leaders accountable, redressing wrongs, and advocating for the “never again” of mass atrocity (Teitel 2000). Transitional justice has not yet incorporated the lessons from the other set of Allied trials, the so-called industrialist cases. US, UK, and French tribunals tried over 40 businessmen for forced or slave labor, plunder of Jewish properties, and ﬁnancing or assisting in mass extermination. The Allied forces believed that the Third Reich, its aggressive war, and its concentration camp atrocities would not have been possible without corporate complicity. Trials thus provided the means to address victims’ rights and condemn corporate violations to prevent them in the future. Scholars have debated the industrialist cases’ legacy in contemporary corporate complicity accountability efforts. One group of scholars considers the industrialist cases inapplicable to subsequent contexts due to the incomparable atrocities in which businesses engaged in Nazi Germany. Some argue that even in this case acquittals resulted from the inability of the prosecution to prove individuals’ knowledge of the mass extermination or their contribution to “aggressive war” (Danner 2005). Others argue in contrast that the legacy of the industrialist cases is evident in the legal doctrine in regional human rights treaties and in the arguments and decisions presented in contemporary corporate complicity cases (Skinner 2008). If this legacy existed, it would be found in international pressure for accountability for corporate complicity. Yet little evidence supports such a view. In contrast, and consistent with the notion of “transnationalism reversed” (Friedman 1999), international pressure measured in terms of the normative legal framework and its application to civil and criminal cases could be said to have had a negative impact on domestic accountability efforts. Such an impact is surprising given the effective international pressure in bringing accountability for heads of state for past human rights violations (Davis 2003, Lutz & Reiger 2009, Roht-Arriaza 2005, Sikkink 2011). The negative effect of international pressure on business responsibility or past human rights abuses seems to result, at least in part, from the unsettled nature of this area of international law. That in turn may result from relatively powerful business veto players active in international and domestic governmental and legal arenas. Corporate Complicity and International Norms International pressure on business and international human rights norms currently involves an emphasis on soft-law and voluntary principles (Ruggie 2013) rather than binding and enforceable obligations. This approach is widely criticized for signaling to states and businesses that corporate obligations under international human rights law are voluntary. For these reasons, critics accuse the normative approach to business and human rights of failing to promote strong international pressure for accountability. The evolution toward the current state of business and human rights norms has been well documented (Bilchitz & Deva 2013, Mantilla 2009, Martin & Bravo 2016, Popova 2016). 66 Payne· Pereira Chronologically, the 1970s is characterized by self-regulation through corporate social responsibility initiatives (Sagaﬁ-Nejad & Dunning 2008). These ﬁrm-level initiatives may have responded to, or indirectly contributed to, a vague global norm regarding corporate respect for international human
rights that made its way into various institutional bodies.1 In the 1980s and 1990s, in the wake of several disasters in which businesses were involved, efforts to control abusive ﬁrms and salvage industries’ reputations emerged (Hauﬂer 2010, Wawryk 2003).2 Although these industry sector-led initiatives indicated that companies might accept monitoring and enforcement of global human rights standards, and human rights advocates pushed for such global agreements, voluntary measures prevailed. The most signiﬁcant developments toward establishing global standards for corporate complicity came with the 1999 United Nations (UN) Global Compact and the 2003 UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (the so-called Norms). The Global Compact calls on “companies to align strategies and operations with universal principles on human rights” (http://www. unglobalcompact.org/what-is-gc). It claims adherence in nearly every country of the world and among 60% of the world’s largest businesses (Mwangi et al. 2013, p. 207). The Norms emphasize universal human rights and responsibilities that included businesses’ binding and enforceable obligations to “promote, secure the fulﬁllment of, respect, ensure respect of, and protect human rights.” UN member states and business stakeholders rejected the binding nature of the Norms. The controversy that ensued led the UN to abandon them (Mantilla 2009), thereby missing an opportunity to create international pressure around accountability for corporate complicity. Instead, the UN Commission on Human Rights (later the Human Rights Council) unanimously endorsed the 2011 Guiding Principles on Business and Human Rights (hereafter the Guiding Principles). Unlike the Norms, the Guiding Principles, drafted by Special Representative John Ruggie, received widespread support from international governmental organizations, states, and businesses (Ruggie 2013, p. xxi). Like the Norms, they explicitly recognize businesses’ responsibility to respect human rights. In contrast to the Norms, however, the Guiding Principles depend on voluntary adherence and soft law, rather than enforceable and binding obligations, to guide businesses’ human rights behavior. Human rights practitioners and legal scholars widely criticize the Guiding Principles. Even when these critics accept that soft law might have been the only, or most effective, way to reach agreement on corporate human rights duties, they still call on the Guiding Principles to clarify the speciﬁc obligations and standards states and businesses must follow to comply with international human rights law (Horrigan 2010). As Paul & Sch¨onsteiner (2013, p. 74) point out, the Guiding Principles had the opposite effect by producing “sometimes inaccurate representations of international law regarding certain aspects of states’ obligation to protect; the lack of clarity on some aspects of the substantive dimension of the corporate responsibility to respect; and the absence of recommendations for effective enforcement mechanisms and of limits set for private reparations initiatives.” Horrigan refers to the voluntary and soft-law nature of the 1These include the UN’s Center on Transnational Corporations (1974), the Organization of Economic Cooperation and Development’s Declaration on Decisions on International Investment and Multinational Enterprises and its Guidelines for Multinational Enterprises (1976), and the International Labor Organization’s Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977). Perhaps the best known of these initiatives are the Sullivan Principles on Apartheid and the US Foreign Corrupt Practices Act—both adopted in 1977. 2These include the Chemical Manufacturers Association’s Responsible Care Program (1984) after Bhopal; the Fair Labor Association’s (1998) response to Nike’s sweatshop practices; and the Kimberley Process Diamond Certiﬁcation Scheme (2002) and the Extractive Industries Transparency Initiative (2003) in response to conﬂict minerals. www.annualreviews.org • Corporations and Human Rights 67 application of international law to the private sector as a weak form of accountability (Horrigan 2010, p. 325). Other scholars go further in their criticisms of the Guiding Principles. By failing to raise the cost to corporations of committing human rights violations, the Guiding Principles are unlikely to deter abuses (Weissbrodt & Kruger 2005). Businesses can cynically adopt or sign onto corporate social responsibility, industry-led, and Global Compact–Guiding Principles initiatives without any intention of changing behavior. Indeed, consistent with some of the treaty compliance literature (Hathaway 2002, Neumayer 2005), signing on to these global initiatives may provide the necessary cover for businesses to continue or increase human rights abuses. These scholars view reliance on soft-law and voluntary principles as unlikely to guarantee improvements in corporate human rights behavior and advocate instead attaching tangible costs to corporate human rights abuses. Social science deterrence theory would concur with these claims in
legal scholarship. That theoretical approach assumes that tangible costs associated with behaviors will likely change them (Bueno de Mesquita & Cohen 1995, Downs et al. 1996, McCarthy 2002, Nagin 1998). Deterrence theory would suggest therefore that the credible threat of judicial action against ﬁrms that commit abuses would signal to the business community the heightened cost of human rights violations, thus curbing such behavior. Very few empirical studies test the effectiveness of voluntary principles. Those that do seem to concur that such mechanisms are insufﬁcient to bring human rights improvements. Lim & Tsutsui (2012) ﬁnd “organized hypocrisy,” and not a deep commitment to human rights obligations, among the 99 ﬁrms they study that have signed onto the Global Compact. Two studies that use Olsen and Payne’s Corporate Human Rights Database (http://www.chrdproject.com) ﬁnd voluntary principles insufﬁcient in remedying or redressing business human rights abuses. In her study on Peru, Babineau (2015) found that Global Compact signatories were just as likely as businesses who did not sign on to be accused of human rights violations; they were, moreover, equally unlikely to remedy violations. Pressure from the government, and not voluntary principles, seemed to promote companies’ positive human rights behavior. Bernal-Berm´udez (2016) also foundfewhumanrightsbehavioraldifferencesamongﬁrmsinColombiathatsignedontovoluntary principles compared with those that had not. Both statistical and qualitative case study analysis pointed to pressure from transnational advocacy networks (Keck & Sikkink 1998) for positive human rights outcomes. In summarizing these empirical ﬁndings, at best voluntary principles have done little to diffuse understanding of business obligations under international human rights law. At worst, they signal to businesses and states that these obligations are voluntary, thereby undermining efforts to strengthen global human rights protections. The global community has recognized the limited, if not negative, outcome of reliance on voluntary principles to improve corporate human rights behavior. Perhaps as a response, the UN Human Rights Council initiated in 2014 a process to elaborate a legally binding instrument on transnational corporations and other business enterprises in respect of human rights. In its resolution 26/9 it created an open-ended intergovernmental working group and a process of intergovernmental negotiations in several phases. No blueprint has yet emerged from the ﬁrst meeting of the working group in June 2015 and subsequent follow-up processes. This initiative, and the slow evolution to reach it, may reﬂect the creation of norm bandwagons or norm cascades (Sunstein 1996) that can lead to international pressure for corporate human rights accountability. At present, however, the voluntary and soft-law principles may undermine civil society mobilization and domestic judiciaries’ efforts at promoting corporate accountability. International pressure is further compromised by the unsettled state of international law on corporate accountability for human rights abuses. 68 Payne· Pereira Corporate Complicity and International Law International pressure on states to comply with human rights obligations has proved instrumental in holding perpetrators of human rights violations accountable in the aftermath of dictatorships and armed conﬂict even where amnesty laws protected them (Payne et al. 2015). In the case of corporate complicity, however, impunity persists. The unsettled nature of international law on corporate complicity seems to obstruct international pressure for accountability on the questions of (a) criminal liability of corporations, (b) corporate criminal acts, (c) territorial jurisdiction, and (d ) effectiveness of trials. Some scholars contend that no international forum recognizes the criminal liability of a company entity (Clapham 2008, Int. Comm. Jurists 2008, Nolan 2013, van der Wilt 2013). The Rome Statute of the International Criminal Court (ICC) and the Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have provisions that unequivocally declare that these tribunals have jurisdiction only over natural persons. Where these courts have heard corporate complicity cases, individual employees and not the companies have faced accountability. This is the case for ICTR’s media case (Ferdinand Nahimana and JeanBosco Barayagwiza of Radio T´el´evision Libre des Mille Collines; Hassan Ngeze of the Kangura newsletter), the Mugonero incident trial (Elizaphan and G´erard Ntakirutimana), and the Gisovu Tea Factory trial (Alfred Musema). The failure to recognize corporate criminal liability for grave human rights violations limits corporate accountability. Businesses argue that they are not bound by international criminal law that is aimed at individuals or international human rights law aimed at states. This argument does not hold up in all states, however. Variation exists across countries with regard to corporate criminal liability (van der Wilt
2013; Zerk 2014, p. 32), suggesting that the law that protects companies from criminal responsibility may be less settled than assumed. Moreover, strategies are under way to overcome this restriction on accountability at the ICC.3 Kelly (2012, p. 363), for example, proposes reform of the Rome Statute to include jurisdiction over corporations. He claims that exclusion of such jurisdiction from the Rome Statute was not due to “a coordinated effort motivated by overt hostility to the notion of holding companies accountable.” His review of the preparatory conference suggests that time constraints, and not legal principles, failed to establish jurisdiction over corporations in the ﬁnal statute. The necessary “legal impetus and political cover” to amend the treaty, he contends, could be provided by the International Court of Justice (ICJ). If the UN General Assembly were to ask the ICJ whether corporations can be prosecuted for genocide, for example, and the ICJ were to answer in the afﬁrmative, then this restriction on corporate accountability could be removed by amending the statute.4 For some scholars, the restriction on corporate criminal liability in international law is not necessarily an impediment to accountability. Referring to the post–World War II industrialist cases, only individual executives, and not corporations, were held accountable. Nonetheless, Skinner (2008, p. 344) contends that the trials support the “decision that corporations are bound by international law and thus liable for human rights violations” (Skinner 2008, p. 344). As an example, Skinner (2008, p. 345) states that although “individuals were nominally on trial, the Krupp company itself, acting through its employees, violated international law.” The individuals named 3Proposals to extend the jurisdiction of the ICC to cover corporate entities were on the agenda of the Kampala Review Conference in 2010, but, according to van der Wilt (2013, p. 45), they were overshadowed by the preoccupation with the crime of aggression and hence not properly discussed. See also Heyer (2012) and Clapham (2000). 4According to Kelly, the ICJ may issue advisory opinions—and has done so at the request of the General Assembly at least 15 times—when requested to do so by organs or approved agencies of the United Nations. www.annualreviews.org • Corporations and Human Rights 69 in the industrialist cases “were acting within the scope of their employment or pursuant to their employment” (Skinner 2008, p. 364) and not as individual or independent citizens. Van der Wilt (2013) seems to agree when he argues that the position of power and knowledge required for a corporate agent to incur criminal responsibility for international crimes corresponds to that agent’s internal position within the corporation that thus criminally implicates the corporate entity.5 Disagreement among legal scholars over corporate liability in human rights crimes is further evident in works by Schabas (2005) and Kelly (2012). Elaborating on international criminal case law, including the industrialist cases mentioned above, Kelly afﬁrms that corporations are subjects of international law in general, and the Genocide Convention in particular, and that they are capable of forming both general intent and speciﬁc intent required to prosecute for genocide. These multiple and contradictory interpretations of corporate criminal liability indicate the unsettled nature of international law. They further illustrate the difﬁculty of developing unequivocal international pressure in favor of accountability for corporate abuses. A second constraint on international pressure for accountability is the deﬁnition of corporate criminal acts. From the industrialist cases, scholars claim that “when corporations assist states [or state-like forces] that engage in human rights abuses... [they violate] the prohibition against aiding and abetting war crimes and other human rights violations... recognized as customary international law” (Skinner 2008, p. 351). Despite the vagueness of this language, the industrialist cases did not all end in “victors’ justice.” Defendants were convicted or acquitted and received varying sentences based on mens rea criteria or the likelihood that they would have known that their acts contributed to war crimes or crimes against humanity. Vest (2010, p. 853) establishes a twofold test to link corporations’ provision of materials, goods, or services to the perpetration of an international crime. Proximity of business conduct and adaptation of that business conduct to criminal acts by the state (or state-like actors) constitute the ﬁrst measure. Second, it must be shownthatthebusinessconductoccurredwiththeknowledgeofitscontributiontoaninternational crime carried out by the state (or state-like actors). Corporate complicity in an international crime involves knowledge of the speciﬁc criminal use of the business’s products, acts, or services. Successfully proving an individual employee’s knowledge of the company’s complicity in a state or state
-like actor’s criminal act in the post-Nuremberg era is rare. One example is the case of Frans van Anraat, who was accused of complicity in war crimes and genocide for selling a mustard gas component used against civilians in Iraq and Iran by Saddam Hussein’s regime. The court of appeals determined that the prosecution could not prove the accused’s intent to commit genocide. Nonetheless, the court found evidence of the defendant’s knowledge that the component “would serve as a precursor for mustard gas” compelling. This knowledge was sufﬁcient to satisfy the mens rea element of the charge of complicity to commit war crimes. The example shows that widespread agreement exists on the knowledge and type of criminal act that constitute corporate complicity. Variation exists in different courts and in different criminal law systems, however, over the degree of proof necessary to establish knowledge of, or intent to participate in, a criminal act (Zerk 2014, p. 38). Different legal requirements in domestic and international courts lead to weak international pressure over when and how to hold corporations accountable for human rights violations. Jurisdictional variations pose a third barrier to international pressure. Given the lack of settled international law over corporate complicity, courts vary widely on their decision to hear or dismiss 5The author builds his arguments on the French proposal on corporate criminal liability, presented during the drafting process of the Rome Statute, as a preliminary normative framework. He tests his arguments analyzing case law of both domestic and international criminal courts in which individual business leaders faced trial on charges of complicity in international crimes. 70 Payne· Pereira cases. For example, arguments made by parent companies that they have no responsibility for subsidiaries’ acts may hold in certain courts and not in others. The opposite is also argued; the lawyers for Chevron in Chevron Corp. v. Naranjo challenged Ecuador’s jurisdiction over the USbased company’s Ecuadorean subsidiary (TexPet) on territorial and legal responsibility grounds. The legal complexity of corporate complicity cases results in part from the lack of settled law. It further contributes to the difﬁculty in winning corporate complicity cases in international, foreign, and domestic civil or criminal courts. In building a database of cases of corporate complicity, we found only 61 corporate complicity cases in any court: international criminal (1), foreign criminal (4) or civil (33), and domestic criminal (17) or civil (6) trials.6 Of those cases that we found, very few have ended in a ﬁnal court decision. Most cases remain ongoing or under appeal, were dismissed, or settled before reaching ﬁnal judgment. Although we could not ﬁnd a systematic study of the outcome of the industrialist cases despite the decades of research, we know that not all of the 40 defendants were prosecuted or found guilty. Moreover, in 1951 the US High Commissioner for Germany granted clemency to, released from prison, and returned assets to many of those convicted and imprisoned in Germany by US tribunals (Wiesen 2000). In one analysis by Kelly (2012), the 60 civil cases of corporate complicity brought under the Alien Torts Statute (ATS) in US courts ended without legal victories for the plaintiffs. Cases were dismissed or companies settled before a ﬁnal judgment (and on the condition of no admission of wrongdoing). Even these limited advances in terms of judicial outcome (Stephens 2000) may have been further compromised in the aftermath of the US Supreme Court’s 2013 Kiobel decision. Scholars and practitioners assume that this tool for accountability has been eviscerated (Alford 2014). With these inconclusive outcomes for corporate complicity cases brought in international, foreign, or domestic courts, strong international pressure for accountability has failed to materialize. In sum, human rights norms’ convergence and international human rights laws and institutions have arguably had a “cascading effect” on holding heads of state accountable for past human rights violations (Sikkink 2011). The same cannot be said for international norms or legal pressure for corporate accountability for human rights violations. International pressure is constrained by unsettled law, legal complexity, and inconclusive outcomes. Some evidence even points to receding opportunities for international pressure for accountability rather than expanding ones. Rather than a spiraling effect that enhances human rights norms and practices through the diffusion of global accountability norms (Risse & Ropp 2013), global efforts seem to be trending toward greater barriers to bringing cases, fewer accountability mechanisms, less global accountability, and greater emphasis on self- or industry regulation and voluntary measures within the business community. A longer-term look might prove less pessimistic about the future of international pressure. The debate over corporate complicity is relatively new. As one scholar contends, “Prior to the mid1970s, there was little international attention to the role of corporations in human rights abuses” (Skinner 2008, p. 366). Moreover, the barriers presented here could constitute the very making of settled
law from which international pressure for accountability might emerge (Wouters & Ryngaert 2009). Halliday & Carruthers (2007) and Liu & Halliday (2009) identify indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch as processes that potentially lead to settling, and could be applied to settling international human rights law (Payne 2014). Thus, with time and continued contestation we may see settled law and corresponding international pressure in favor of accountability. 6We continue to ﬁnd additional cases, however. For example, see Stewart (2014) for a discussion of ongoing criminal cases in Swiss courts. www.annualreviews.org • Corporations and Human Rights 71 DOMESTIC JUDICIAL INITIATIVES Despite the equivocal or negative international pressure for corporate accountability, domestic judiciaries have taken some important initiatives, often developing innovative legal strategies that might be adapted to other legal systems ( Joseph 2000). These innovations creatively combine domestic law and international human rights law. Creativity may emerge in the context of extreme adversity. Prosecutors face particular legal and procedural difﬁculties in establishing businesses’ responsibility. Among the most relevant ones, Zerk (2014) highlights the following: the difﬁculty of identifying the appropriate entity or entities against which to lodge a private law claim in cases involving large transnational groups of companies; objections to lawsuits based on doctrines of sovereign immunity, “act of State,” and “political question” frequently encountered by claimants in ATS cases; the nonapplicability of criminal law provisions to corporate entities in some jurisdictions; and the existence of rules that place restrictions on the ability of individual victims, their representatives, and other organizations (e.g., nongovernmental organizations) to initiate and participate in legal proceedings. She also includes practical obstacles blocking accountability in domestic courts, including but not limited to scarce availability (or nonavailability) of legal aid, “loser pays” rules, and lack of resources and specialized expertise within prosecution bodies. Along with these general challenges to the implementation of corporate accountability at the domestic level, the difﬁculty of establishing the legal person who could represent the corporation’s complicity in human rights accountability has posed obstacles in advancing cases. Due to the time passed since dictatorships or the beginning of conﬂicts, those most responsible for corporate decisions have died, left the company and the country, and in other ways are difﬁcult to track down and prosecute. Similarly, records directly implicating the company or the individual rarely exist, particularly when the ﬁrm becomes aware of a pending lawsuit. The barriers to domestic prosecution are, in sum, huge. But they are not insurmountable. Four domestic cases presented below (three from Argentina and one from Colombia) provide illustrations for how prosecutors can, and have, overcome these barriers to accountability. The creative strategies used might provide translatable and transportable models for corporate accountability in postdictatorship and post–armed conﬂict situations. Two cases—Ingegnieros (C´amara Nacional de Apelaciones del Trabajo, 2012, Ingegnieros Mar´ıa Gimena c. Techint S.A, Compania T´ecnica Internacional, 73797) and Siderca (Corte Suprema de la Provincia de Buenos Aires, 2007, Cebrymsky, Ana Mar´ıa c. Siderca S.A.)—creatively combined claims under Argentina’s labor law and international human rights law to win compensation from companies to families for the disappearance of workers. In February 2012, in the Ingegnieros case, an appeals labor court dismissed the statute of limitations claims of a legal action brought to the court. Mar´ıa Gimena Ingegnieros, the daughter of Enrique Roberto Ingegnieros, brought the case. She requested ﬁnancial compensation for her father’s disappearance during the civil-military dictatorship. She claimed that Techint SA, owing to its coauthorship of the crime of disappearance on the company’s grounds, should pay compensation. The company denied the claim and argued that the two-year statute of limitations on worker safety had long since run out. The appeals court rejected the company’s argument, declaring that statutes of limitations do not apply to compensation claims linked to crimes against humanity. The family was awarded compensation in this innovative combination of domestic labor law and international human rights law.7 The April 2007 Siderca case, brought by Ana Mar´ıa Cebrymsky, the wife of Oscar Orlando Bordisso, and heard by the Supreme Court of the Province of Buenos Aires, follows a similar logic. 7See the latest developments here: http://www.diariojudicial.com/nota/29572. 72 Payne· Pereira Bordisso disappeared shortly after he left work one day in 1977. In 1995, his wife claimed compensation from his employer
—Siderca—under Argentine labor law, speciﬁcally, that the country’s work safety law obliged the company to protect her husband on entering and exiting the work site. The company rejected the claim and argued against legal action owing to the statute of limitations. The ﬁrst-instance tribunal accepted the claim against the company. On appeal, the company again lost in the Provincial Supreme Court. The court ordered compensation for Bordisso’s widow. These cases illustrate a creative blending of domestic labor law and international human rights law to recognize companies’ duties to respect and protect human rights and to remedy abuses. Neither case relied on international ruling but instead demonstrated the signiﬁcance of domestic judicial leadership in linking domestic and international law. Without that leadership and innovative strategy, these cases would have been easily dismissed for falling outside the statute of limitations in worker safety cases. Although tried in civil courts, the use of international law recognizes the crime against humanity, the responsibility of the ﬁrm in committing such a crime, and the duty to provide some form of reparations for the victims’ families. Families of workers murdered or disappeared due to authoritarian states or armed conﬂict could adapt this innovative linkage of labor law to crimes against humanity to seek accountability and remedy where criminal trials with evidentiary constraints face obstacles. Another innovative example from Argentina is the Vildoza case ( Juzgado Nacional en lo Criminal y Correccional Federal N◦12, Vildoza, Jorge Ra´ul & otros - Delito de Acci´on P´ublica Case N◦ 13.340/08). Several military ofﬁcers and civilians were accused of the illegal procurement of property from individuals detained by the dictatorship’s repressive apparatus and the sale of the real estate to private individuals and companies connected to the military. The investigation was initiated by the public prosecutor and private partners and later included the Financial Information Unit (Unidad de Informaci´on Financiera), the state agency in charge of investigating moneylaundering activities. The case has hinged on the controversial ruling that the money-laundering law initiated in 2004 could apply to an incident from the 1970s. The court agreed to hear the case after accepting the argument that the proﬁt from the sale of the real estate transaction continues to beneﬁt the individuals who initially seized the property. The case is ongoing. The Urapalma case ( Juzgado Quinto Penal del Circuito Especializado de Medell´ın, octubre 30, 2014, Ruling No. 054, 05001 31 07 005 2011 01799) is the ﬁrst criminal conviction in Colombia of businessmen for their role in the forced displacement of communities by paramilitary forces during the armed conﬂict. Several of the palm oil company’s executives and former employees were convicted in October 2014 and are in prison for their links to paramilitary groups in the forced displacement of Afro-Colombian communities. Some are expected to serve up to 10 years in prison and face ﬁnes of 2,650 minimum wages. Regarding remedy, the Court ordered the defendants to pay compensation of approximately 20 million pesos (approximately $7,000) to each victim of forced displacement and ordered several state entities to guarantee and monitor the process of restitution of lands to the communities. The case expanded the legal scope of the crime of forced displacement to enable conviction of company employees and recognized the rights of internally displaced people to return to lands occupied by private actors. These cases show that legal innovations at the domestic level are emerging. They bypass the constraints on accountability emanating from the international focus on soft-law and voluntary principles. They have applied domestic laws, often in combination with international human rights law, to reach judgments against corporate acts. Most of the successful outcomes of the domestic cases that we have found globally involve civil courts; successful criminal actions are much rarer. That these cases have begun to develop case law and legal strategies suggests that domestic processes in this area may be a more appropriate focus than an international one. The diffusion of norms and practices from the international sphere—speciﬁcally, the reliance on soft-law and www.annualreviews.org • Corporations and Human Rights 73 voluntary principles—may have a deleterious effect on domestic prosecution, in contrast to the processes against state actors. Domestic processes have the potential of diffusing across borders, creating a cumulative effect in which businesses become less and less likely—like the heads of state before them—to evade responsibility for their past acts. CIVIL SOCIETY DEMAND Civil society mobilization has the potential to change corporate human rights behavior (Addo & Martin 2016, Narine 2016), but has thus far lagged behind demand for accountability for state perpetrators. Traditionally, human rights and victims’ groups have focused on states’ failure to “protect, respect, and remedy” human rights (Ruggie 2014
). International law has not yet developed settled law for holding businesses to the same standard. Although there is consensus within and outside the business community regarding ﬁrms’ “responsibility to refrain from harming human rights” (Karp 2014, p. 63), “there is as yet no customary international law norm on the extent of corporate responsibility for human rights violations... and an enormous diversity in national laws on these issues” (Ford 2015, p. 37). Civil society mobilization is partly constrained in its mobilization by its traditional orientation toward states and the unsettled nature of international law in the matter of corporate complicity. The post-Kiobel environment may pose even more constraints on civil society mobilization. The limitations on judicial action may indicate that “naming and shaming,” or concerted global campaigns (Felstiner et al. 1981), will prove more effective in increasing costs, at least reputational ones, for corporate complicity. Widespread attention through traditional and new social media to corporate complicity, public condemnation, visible protests and denunciations, and the threat of prosecutorial activity may prove as effective as, if not more effective than, trials themselves in communicating norms and dictating corporate behavior. Building on the normative socialization approach (Sunstein 1996), such civil society actions may motivate corporate responses to offset negative reputational or potential prosecutorial costs. Civil society mobilization through truth commissions offers a potentially signiﬁcant “naming and shaming” function. A study reveals that 23 out of 35 truth commissions acknowledge corporate complicity in human rights violations, and most of those name speciﬁc companies responsible for abuses, with nearly 300 companies named (Payne & Pereira 2016).8 Truth commissions potentially raise visibility of corporate complicity; raise costs to speciﬁc ﬁrms identiﬁed; and hold those companies accountable publicly, if not legally. Argentina provides an example. The earliest truth commission for human rights violations in the world, the 1983 National Commission on Disappeared Peoples, identiﬁed 11 speciﬁc companies by name for violating human rights as part of the dictatorship’s system of repression. On the subsequent anniversaries of the coup, civil society groups condemned corporate complicity. On the 2015 anniversary, for example, grafﬁti, posters, and speeches asked rhetorically whether the public supported “democracy or corporations.” As a result of the visibility of corporate complicity, references to the “military dictatorship” changed to the “civil-military dictatorship” to reﬂect the role of corporations in repression.9 That Argentina (along with Colombia) is the country with the highest number (Payne & Pereira 2015) may reﬂect the evolution from civil society “naming and shaming” campaigns to prosecutorial activity. 8We have only a few additional possible truth commission reports to review. We do not expect to ﬁnd many more commissions that list companies complicit in human rights violations. 9Similar renaming of the past political regimes occurred in Brazil and Uruguay for the same reasons. 74 Payne· Pereira The well-known and highly revered South African Truth and Reconciliation Commission (TRC) also recognized corporate complicity in the Apartheid regime’s human rights abuses. The TRC held special hearings on business and carefully documented in its ﬁnal report the beneﬁts the corporate community received from, as well as its ﬁnancing of and contribution to, the Apartheid regime’s violence. The TRC concluded that a strong legal case against businesses could be made under international law. The TRC was one of 12 truth commissions that made speciﬁc recommendations regarding corporate complicity. The recommendations did not include prosecution, but rather a wealth tax, a single levy on corporate and private income, a donation by each company listed in the Johannesburg Stock Exchange in the amount of 1% of its market capitalization, a retrospective surcharge on corporate proﬁts during the Apartheid era, and a reconsideration of paying Apartheid-era debt. In addition, individual members of the business community were asked to voluntarily contribute to reparations and development in the post-Apartheid era (Colvin 2006, p. 199). Those recommendations did not advance very far. South African president Thabo Mbeki rejected the call for a wealth tax or other forms of reparations from the private sector. The social movement Jubilee South Africa highlighted the role that multinational corporations played in repatriating proﬁts outside South Africa and sought, without success, both debt relief and reparations from these businesses. A business trust was built on a 1.2 billion rand donation from 140 business groups and the post-Apartheid government. The trust fails, however, to make any connection to corporate complicity in the Apartheid era or companies’ moral obligation to contribute to the new South Africa
or to compensate victims in light of past corporate abuse (http://www.btrust.org.za/partners.html). Colvin’s (2006, p. 205) study of South African reparations concludes that “the culpability of domestic business has also not been seriously considered. Business either ignores the question or makes absurd offers to ‘manage’ the disbursement of reparations funds.” Frustrated at the unwillingness of the government to hold business to account, the Khulumani Support Group used ATS to ﬁle a lawsuit (Khulumani v. Barclay National Bank Ltd.) against key international companies in a New York court. The civil suit sought compensation from those who had invested in, and proﬁted from, the discriminatory policies of the Apartheid era, including job reservation, wage discrimination, and forced labor. The Mbeki government actively sought to undermine the lawsuit. Minister of Trade and Industry Alec Erwin claimed that the government would not enforce judgments made by the New York court (Thompson 2013). Minister of Justice Penuel Maduna attempted to have the case dismissed owing to its interference in South Africa’s domestic process and state sovereignty. These combined actions were interpreted as efforts to reassure the business community of a positive investment climate (http://truth.wwl.wits.ac.za/cat_descr.php?cat = 4). Undeterred, South African civil society has continued to ﬁght in US courts and in South Africa. During the 2010 Soccer World Cup, for example, Khulumani initiated campaigns against some of the corporations in the lawsuit. As the “Red Card” campaign stated, “Daimler AG generously sponsored the German team in its quest to win the Soccer World Cup on South African soil, while ignoring calls to acknowledge and pay reparations for its ‘sponsorship’ of apartheid atrocities.” The campaign involved posters identifying Daimler’s Mercedes Benz iconic hood ornament as the “star of Apartheid” (Red Card Campaign 2010). The nongovernmental organization Open Secrets has also engaged in research and public exposure of the linkages between contemporary corruption and violent and illicit businesses with the Apartheid era (http://www.opensecrets.org.za). Although Brazil compares poorly with Argentina and South Africa in terms of transitional justice accountability mechanisms, it has recently advanced beyond other countries in the area of corporate complicity in the dictatorship (Bohoslavsky & Torelly 2014). Civil society actors www.annualreviews.org • Corporations and Human Rights 75 have taken the lead in these endeavors. Mobilization around the National and S˜ao Paulo State Truth Commissions could be said to have acted as a catalyst to investigate the role that corporations played in the 1964 coup and subsequent dictatorship. Those investigations and parallel civil society activities led to public acts to reveal complicity. In one such act, students mobilized to petition for the removal of a S˜ao Paulo street name associated with one of the businessmen connected to the coup and repression. A video of their activities (Brant 2013), as well as a ﬁlm about the businessman, circulated widely on YouTube (Payne 2013). The Truth Commission and civil society pressure for accountability are considered to be crucial to the opening up of the lawsuit against Volkswagen for its role in the dictatorship’s repressive apparatus (Boadle & Winter 2014). No international pressure is behind this judicial action. Although these civil society initiatives mark a new shift toward corporate accountability for human rights violations, they remain scarce. They attract some local and international attention when they occur. But their capacity to promote “bottom-up” approaches ( ˇCerniˇc 2016, Levit 2007) remains largely blocked thus far by the power of business. CORPORATE VETO POWER The veto power of business is thus crucial to understanding the limitations on corporate accountability for human rights violations. An extensive literature exists in the social sciences on the political, economic, and social power of business elites and their capacity to inﬂuence states and societies.10 It also recognizes limitations on corporate power, particularly fragmentation that impedes collective action. The business and human rights literature overlooks these limitations on power, focusing instead on the global might of a few companies that enables them to inﬂuence domestic and international processes. That “the largest multinationals now dwarf the economies of many countries and frequently mobilize greater political inﬂuence” (Chesterman 2004, p. 307) suggests that some corporations may not need collective action to leverage veto power over decisions made in the international, foreign, or domestic arena. Corporate direct action, moreover, may not be necessary to veto power. Mills (1956) might contend that by comprising the “power elite” along with judges, prosecutors, and politicians, business leaders are guaranteed protection from corporate accountability. The lack of settled law on corporate human rights obligations creates a legal and moral space in which certain shared values within the power elite produce favorable results
for business. Implicit veto power may also result from recognition of dependence on business for global or domestic economic stability and well-being. Such recognition may result in an unwillingness to sanction abusive behavior (Ite 2004). Firms in strategic sectors of the global or domestic economy may enjoy fewer constraints on their behavior than ﬁrms in less critical sectors (Madami 1999, Moran 2002). States may avoid hearing, investigating, or enforcing human rights standards if they anticipate repercussions of appearing hostile to business, such as loss in foreign investment or business relocation to more permissive investment environments (Dougherty 2011). Business veto power over accountability emanating from wealth, shared values and beliefs, and dependence is not easily proven. Nonetheless, certain patterns of behavior have been identiﬁed in the literature. Possessing extensive ﬁnancial resources, corporations have more capacity than most victims of abuse to hire high-priced, skilled lawyers to defend them in complicated legal battles. 10See, for example, Block 1984; Lindblom 1977; Miliband 1969; Mills 1956; Offe & Wiesenthal 1980; Poulantzas 1968; Skocpol & Somers 1980; Vogel 1978, 1983. See also Payne 1994, pp. 1–15, for a review of this literature. 76 Payne· Pereira Hearings to dismiss the case or to clarify legal technicalities, and the lengthy trials and appeals processes, incur costs more easily absorbed by the corporate defendants than the victim plaintiffs (Zerk 2014). Businesses tend to offer ﬁnancial settlement when they anticipate legal defeat on the condition of no acknowledgment of wrongdoing. These settlements avoid what businesses might perceive as the development of bad law or bad precedent that could hurt them in subsequent cases.11 These legal maneuvers have led scholars to conclude that “Courthouse doors are, for both legal and practical reasons, generally closed to victims, particularly those who live in poverty” (Thompson et al. 2009, p. 895). The power used by businesses to intimidate, threaten, bribe, and coerce decisions favorable to them is also documented in the business and human rights literature. Working with legal practitioners involved in the prosecution of corporate complicity cases reveals ﬁrsthand the threats by business to countersue with libel and slander claims to constrain investigations and public information about the case. Amnesty International and the Inter-American Commission of Human Rights have documented the violence and intimidation indigenous human rights defenders face when they bring claims against extractive and other mega-project ﬁrms.12 Some groups have proved unwilling to initiate or continue their claims for justice when faced with business threats. Despite the formidable power of businesses to block accountability for human rights violations, their veto power has not always protected them. Accountability has occurred. In some cases, businesses themselves have contributed to these efforts. Returning to the industrialist cases, several companies acknowledged their complicity in Nazi regime atrocities. In so doing, they recognized the responsibility of companies to abide by international human rights standards. Deutsche Bahn’s historian, for example, put together a “Special Trains to Death” exhibition in the central station acknowledging that “without the Reichsbahn [its predecessor] the industrial murder of millions of people would not have been possible.”13 This recognition occurred without the threat of judicial action.14 Compensation funds have offered opportunities for businesses to accept responsibility for past atrocities. These funds may also provide a way for businesses to offset litigation or to improve the company’s tarnished image. The German Foundation for Remembrance, Responsibility, and the Future received $5 billion contributed equally by the government and industry to compensate surviving forced laborers during World War II. It is not clear how many or which industries made contributions.15 Businesses’ motivations behind the donations are also not systematically analyzed. Chronologically, these donations did not materialize until after forced laborers initiated lawsuits. Moreover, these contributions sometimes came, as in the case of the Volkswagen fund, with the recognition of “moral responsibility” but denial of “legal responsibility” (Andrews 1998). 11Settlement outcomes warrant analysis. Although it would appear to be counterproductive for the company’s reputation to engage in a long, drawn out court case only to settle in the end, companies may be engaged in long-term battles (future claimants, bad law, bad precedent) rather than short-term cases. A study on US civil claims offers some insights nonetheless (see Albiston 1999). 12See particularly the work in Inter-Am. Comm. Hum. Rights 2015. 13Suzanne Kill, cited in Connolly 2008. 14The 1973 trial of Albert Ganzenm¨uller, secretary of transport and deputy director of the Reichsbahn, for the ﬁrm’s involvement in the deportations to death camps was closed after he had a heart attack on the ﬁrst day. Ganzenm¨ull
er lived 23 years after the trial ended without threat of further prosecution. 15The American Jewish Committee found 255 corporations that had employed forced labor, and only 17 contributed to the compensation fund (Kempster 1999). Another study mentions 6,300 corporate donations to the compensation fund (Helm 2001). In addition, individual companies, such as Volkswagen and three major Swiss banks, set up independent foundations to pay out compensation (Andrews 1998). www.annualreviews.org • Corporations and Human Rights 77 These donations, in other words, have not appeared to weaken veto power or strengthen norms or international law regarding corporate accountability. Recent attention to corporate complicity in the Argentine dictatorship has provided some evidence that such change is possible, if not likely. The National Stock Exchange created a kind of institutional truth commission to investigate and reveal to the public its complicity in the dictatorship. In another case, a company voluntarily turned over its ﬁles to the national prosecutor’s ofﬁce for investigation into human rights abuses. The new owners of the ﬁrm presumably hoped to avoid any connection to the past owners and their complicity in the dictatorship. In sum, although businesses have historically held veto power, greater attention to abuse through civil society mobilization and domestic processes may begin to reduce that power. Judges may ﬁnd it more objectionable to side with ﬁrms publicly exposed for their abusive activity than to rule against them. The more international law recognition of businesses’ responsibility for human rights abuses there is, the more difﬁcult it will be for courts to avoid accountability even against powerful businesses. The current trends are not moving in that direction, however. For the time being, the exposure to business violations is more likely to come from national and international civil society campaigns and not from global institutions. This leads to important conclusions about the direction of causality in enhancing human rights practice. CONCLUSIONS This review seeks to integrate the business and human rights literature with the transitional justice literature. In so doing, it questions the assumptions in both literatures of the importance of international actors and factors in promoting positive human rights practices. The international realm plays a critical role in accountability, yet in the speciﬁc area of corporate complicity international human rights law has developed norms and laws that harm, rather than advance, accountability. However, domestic judicial and civil society actors have played a key role in innovating the uses of international human rights law in this area. Indeed, these actors may have become the protagonists in rescuing the normative and legal framework of international human rights law as applied to corporate complicity. International pressure, domestic judicial leadership, civil society demand, and weak veto players constitute the four factors previously found to overcome impunity and advance accountability for human rights violations. Because of the shift away from Nuremberg Trial applications of international law to corporate complicity, and toward soft-law and voluntary principles, international institutional pressure has remained weak in this area of law. Although transnational advocacy networks have helped local human rights and victims groups to take claims against corporations to foreign courts, the absence of an international judicial forum to hear these cases has limited that interaction. Foreign court venues seem to be shrinking, rather than expanding, in number and scope, as the post-Kiobel ATS suggests. Indeed, the primary protagonism in the area of corporate accountability for past human rights abuses in dictatorships and armed conﬂict lies currently with domestic judiciaries and civil society actors. These actors have found legal and social movement innovation capable of overcoming the international legal brake on judicial accountability for past human rights abuses by companies. They have thus also found creative ways from below to overcome the powerful veto role that businesses can play. These practices have not involved changing law but rather rescuing it from the clutches of international organizations unwilling to apply it to corporate accountability cases. They challenge the acceptance of soft-law and voluntary principles regarding businesses’ and states’ human rights 78 Payne· Pereira responsibilities and duties. They salvage the Nuremberg theory’s “prohibition against aiding and abetting war crimes and other human rights violations... recognized as customary international law” (Agent Orange case, cited in Skinner 2008, p. 351) and apply it to contemporary cases of corporate complicity in dictatorships and armed conﬂicts. These practices sometimes involve explicit references to international human rights law but more commonly look for the domestic adaptations of that law. These efforts are within the grasp of most civil society actors and functional judiciaries. Thus, the innovative strategies explored here could be adapted to other contexts. More scholarly and practitioner focus on diffusion from global to local institutions is not likely to generate better human rights protections in this area of the law. Future research should instead encourage more advocacy-academic dialogue across borders to further develop, reﬁne, and adapt innovative practices that circumvent blocks from international bodies and promote more appropriate local versions of accountability for human rights violations. They may become the Archimedean lever: weak actors who with the right legal instruments can
lift the global normative and institutional framework of corporations’ human rights responsibilities.16 DISCLOSURE STATEMENT The authors are not aware of any afﬁliations, memberships, funding, or ﬁnancial holdings that might be perceived as affecting the objectivity of this review. ACKNOWLEDGMENTS The authors acknowledge the support for their research from the British Academy, the Open Society Foundation, the John Fell University of Oxford Press Research Fund, and the Economic and Social Research Council’s Impact Acceleration Account. They thank Kathryn Babineau, Laura Bernal-Berm´udez, Stephen E. Meili, and Julia Zulver for their assistance on this article. The authors further acknowledge the Corporations and Human Rights Database project, particularly the work by Tricia D. Olsen, in advancing this project. Finally, the authors thank the Corporate Accountability and Transitional Justice project partners for insights into local level initiatives, particularly the Centro de Estudios Legales y Sociales (CELS) and Abogados y Abogadas del Noroeste Argentino en Derecho Humanos y Estudios Sociales (ANDHES) in Argentina and in Colombia the Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia). LITERATURE CITED Addo M, Martin J. 2016. The evolving business and society landscape: Can human rights make a difference? In The Business and Human Rights Landscape: Moving Forward, Looking Back, ed. J Martin, KE Bravo, pp. 348–83. Cambridge, UK: Cambridge Univ. Press Albiston C. 1999. The rule of law and the litigation process: the paradox of losing by winning. Law Soc. Rev. 33:869–910 Alford RP. 2014. The future of human rights litigation after Kiobel. Notre Dame Law Rev. 89:1749 Andrews EL. 1998. Volkswagen to create $12 million fund for Nazi era laborers. New York Times, Sept. 11 Avant DD. 2005. The Market for Force: The Consequences of Privatizing Security. Cambridge, UK: Cambridge Univ. Press 16Rubens Carvalho Gomes da Silva (2010), in conjunction with his academic supervisor Laurence Whitehead, developed the concept of the Archimedean lever to explain activism in the global South. www.annualreviews.org • Corporations and Human Rights 79 Babineau K. 2015. Business as Usual? Transnational Corporations and the Challenge of Human Rights Remedy in Peru. MPhil thesis, St. Peter’s Coll., Lat. Am. Cent., School Interdiscip. Area Stud., Univ. Oxford, Oxford, UK BalmerJM,PowellSM,GreyserSA.2011.Explicating ethical corporate marketing.Insights from the BP Deepwater Horizon catastrophe: the ethical brand that exploded and then imploded. J. Bus. Ethics 102(1):1–14 Bernal-Berm´udez L. 2016. The power of corporations and the power of people: understanding remedy and accountability for human rights violations—Colombia 2000–2014. DPhil thesis in progress, Dep. Sociol., Univ. Oxford (work on ﬁle with the authors) Bilchitz D, Deva S. 2013. The human rights obligations of business: a critical framework for the future. In Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect, ed. S Deva, D Bilchitz, pp. 1–26. Cambridge, UK: Cambridge Univ. Press Block F. 1984. The ruling class does not rule: notes on the Marxist theory of the state. In The Political Economy: Reading in the Politics and Economics of American Public Policy, ed. T Ferguson, J Rogers. Armonk, NY: M.E. Sharpe Boadle A, Winter B. 2014. Brazil dictatorship probe urges prosecuting military, companies. Reuters, Dec. 10 Bohoslavsky JP. 2012. El eslab´on ﬁnanciero en la justicia transicional Uruguaya. Rev. Urug. Cienc. Polit. 21(2):153–79 Bohoslavsky JP, Opgenhaffen V. 2010. Past and present of corporate complicity: ﬁnancing the Argentinean dictatorship. Harvard Hum. Rights J. 23:157–203 Bohoslavsky JP, Rulli M. 2010. Corporate complicity and ﬁnance as a “killing agent”: the relevance of the Chilean case. J. Int. Crim. Justice 8(3):829–50 Bohoslavsky JP, Torelly MD. 2014. Financial complicity: the Brazilian dictatorship under the “macroscope.” In Justice and Economic Violence in Transition, ed. DN Sharp, pp. 233–62. New York
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