Introductory Remarks by Benedict Kingsbury

By Kingsbury, Benedict | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Introductory Remarks by Benedict Kingsbury


Kingsbury, Benedict, Proceedings of the Annual Meeting-American Society of International Law


Indicators are increasingly important in global governance. They are one element of "governance by information," and one expression of the growing importance of numerically expressed data and statistics in governance. (1) What are indicators, and what do they have to do with international law? These brief introductory remarks address these two questions.

WHAT ARE INDICATORS?

Indicators are not sharply different in nature and significance from other forms of quantification or other modes for simplifying and expressing data. Nonetheless, indicators have a cluster of features which, in aggregate, make special consideration of them useful. For purposes of inquiry into indicators as an important emerging technology in the practice of global governance, Davis, Kingsbury, and Merry define indicators in the following way:

   An indicator is a named collection of rank-ordered data that
   purports to represent the past or projected performance of
   different units. The data are generated through a process that
   simplifies raw data about a complex social phenomenon. The data, in
   this simplified and processed form, are capable of being used to
   compare particular units of analysis (such as countries or
   institutions or corporations), synchronically or over time, and to
   evaluate their performance by reference to one or more standards.
   (2)

This working definition subsumes indexes, rankings, and composites which aggregate different indicators, although such aggregations or "mash-up" compilations raise many special issues.

HOW ARE INDICATORS CONNECTED TO INTERNATIONAL LAW?

Indicators frequently operate as standards. Indicators typically embody (although usually only implicitly rather than explicitly) an ideal, either through an understanding of what would make a good society or a better state of affairs, or through an account of a particular problem to be overcome. Many indicators also embody a view of causation by measuring elements which contribute to realization of the ideal or to the worsening or amelioration of the problem. Indicators are distinctive in that (typically) the indicator simultaneously articulates the standard and applies it. The flow of costs and benefits as incentives to perform better on an indicator may often be greater than the flows attached to legally binding instruments.

Indicator-standards can have some of the same roles and features as legal standards:

(a) Indicators can operate as an expression of values and political commitments, comparable in some ways to expressive functions of law.

(b) Indicators can be used as part of the regulatory process for supervision or implementation of a legal standard.

(c) An indicator, especially if highly authoritative and stable over time, can provide a focal point around which to align expectations. The World Bank Group's Doing Business indicators, Freedom House's Freedom in the World indicator, the World Economic Forum's Global Competitiveness Index, and the U.S. State Department's Trafficking in Persons indicator each seem to have operated as a focal point aligning expectations and influencing behavior, as have the U.S. News & World Report rankings of law schools within the United States. The influence of a focal point on behavior is heightened if use of the indicator becomes sufficiently embedded that network effects result. The system of letter-graded credit ratings for sovereign bonds is so embedded in legal rules and market practices (including requirements that some entities invest only in bonds rated as "investment grade") that network effects result, making major changes to the system more costly and less likely.

(d) Some of the pathways through which indicators can influence expectations, social categories, status relations, behavior, and even identities are similar to those applicable to international legal instruments. These include naming, shaming, praising/ blaming, emulation, acculturation, information changing beliefs or strategic calculations, behavioral or identity adaptations of the indicated, empowerment or redefinition of the indicators promulgator, altering external power structures, altering distributions of power within an entity, and building or intensifying networks. …

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