Rethinking Economic Governance: A Naturalistic Cosmopolitan Jurisprudence
Jackson, Kevin T., Boston College International and Comparative Law Review
Abstract: This Article seeks to develop a frame of reference for comprehending legitimacy structures in emerging global economic governance regimes. To that end, it provides, in contradistinction from positivist and pragmatist approaches, an alternative normative justificatory framework for soft law. As its very name suggests, soft law is a law-like phenomenon, distinct from classical notions of law, yet no less significant, and hence worthy of receiving systematic moral analysis. It is therefore reasonable to draw upon philosophy of law as an intellectual resource for undertaking such a conceptual endeavor. Accordingly, this Article examines philosophical justifications for evolving soft law syndicates that profess to impose obligations on business enterprises and other participants dealing with human rights and sustainability matters. The Article concludes that a naturalistic cosmopolitan jurisprudence that embraces the intrinsic value of rule of law and human rights provides a vital intellectual pathway for surmounting legitimacy gaps in global economic governance.
The global activities of business, governments, nongovernmental organizations (NGOs), intergovernmental organizations (IGOs), and civil society are becoming increasingly interlaced.1 Growing global interconnectivity is bringing about a head-on confrontation with traditional territorially-based principles for contemporary economic governance associated with the Westphalian state system.2 Perhaps the most significant defiance of the territorial principle results from the mounting number of global issues involving sustainability and human rights.3
The emerging global economic governance regime is characterized by a transition away from a state-centered system toward a multipleactor system.4 Attending this transition is a fragmentation of authority and a blurring of lines that once delineated the public and private realms.5 Increasingly, private actors are operating in authoritative positions, fulfilling governing functions once perceived to be the exclusive domain of governments.6
If the boundaries separating the private and public sectors are shifting with respect to the concept of authority, logic suggests that they must do so with respect to responsibility as well. Consequendy, private actors-particularly business enterprises-are increasingly called upon to share magnified public responsibilities7 for which they are held accountable in large part through their reputations.
Meanwhile, significant cultural and ethical diversity exists within the ever-tightening world community, posing problems for understanding cross-cultural standards for economic participants. For example, human rights and soft law civil regulations centered upon corporate social responsibility and sustainability are often portrayed as standing alongside hard international law standards in terms of their global reach and universal validity.8 The peculiar international responsibilities incorporated into global economic governance regimes represent a fertile ground for philosophical analysis that is sensitive to both the moral imperatives of the standards issuing from such regimes, and the practical realities facing contemporary business enterprises, nationstates, and other participants in the world economic order.
The nature of contemporary global governance regimes raises a number of questions. Are the governance regimes authentic legal orders, and if so, in what sense? If they are not genuine legal orders, do they nevertheless have legitimacy, and on what basis are such determi3 nations made? Are the obligations imposed by the regime merely discretionary and voluntary, or is there some deeper sense in which they are mandatory and non-voluntary?
These questions are jurisprudential in the sense that, from a rule of law perspective, global economic governance should be committed to aligning economic power with justice.9 Law seeks to tame power- whether that power arises from politics or from business-and convert it into authority through legitimizing principles such as democracy, separation of powers, human rights, and pursuit of the common good. …