Governance, Civil Society and Social Movements
Workshop at the European University Institute, Florence
30 June 2007, 9 a.m. to 6 p.m
Villa La Fonte
Via delle Fontanelle 10, San Domenico di Fiesole, Conference Room
organized by Dr. Michael Blecher (Vicenza), Judge Giuseppe Bronzini
(Roma), and Professor Christian Joerges
Programme (PDF file) and Speakers (as of 27 April 2007)
I. 9.00 – 9.15 Introduction
Michael Blecher, German Technical Cooperation (GTZ, Eschborn) and
Vicenza
Giuseppe Bronzini, Rome Appeal Courts
Christian Joerges, EUI
II. 9.00 to 11.00
The Erosion of State Government and the Emergence of (Transnational)
Governance
Basic Text Reference: C. Joerges: Free Trade with Hazardous Products?
The Emergence of Transnational Governance and the Erosion of State
Government (PDF File), in: European Foreign Affairs Review 10, 2005
C. Joerges, Integration durch Entrechtlichung? Ein Zwischenruf (PDF
File)
English and Italian version (PDF File)
09.15 – 9.35
Mission (Im)Possible: The Juridification of Governance Practises
Christian Joerges, EUI
9.35 – 9.55
Does Governance Challenge International Law?
Lauso Zagato, Venice University
9.55 – 10.15
Governance Induced Changes of Political Economy
Bo Strath , EUI
10.15 -11.00
Debate
Chair: Michael Blecher, GTZ (Eschborn) and Vicenza
11.00 to 11.15 Coffee Break
III. 11.15 to 13.00 and 14.00 to 15.45
The Network Society and the Quest of Societal and Ecological
Constitutionalizations
Basic Text References: 1. G. Teubner, Societal Constitutionalism:
Alternatives to State-Centred Constitutional Theory? (PDF file), in:
C. Joerges, I.-J. Sand, G. Teubner (eds.) Constitutionalism and
Transnational Governance, London: Hart, 2004, pp. 3 to 28.
2. G. Teubner, The Anonymous Matrix. Human Rights Violations by
‘Private’ Trans-national Actors (PDF file), in: M. Escamilla and M.
Saavedra (eds.): Law and Justice in a global society, International
Association for philosophy of law and social philosophy, Granada
2005, S.547-562; 3. M.Surdi, Dominium inutile, in: Posse,October
2001; 4. M.Surdi, All'origine della giustizia, in:Giornale di storia
costituzionale,n°7,2004. 5. Janet Dine, Corporate Corruption:
Complexity and Corporate Culture
11.15 – 11.35
Societal Constitutionalism – Answers to Network Societies and Legal
Fragmentation
Gunther Teubner, Frankfurt University
11.35 – 11.55
Civil Society or Civil Constitutions? (PDF file)
Günter Frankenberg, Frankfurt University
11.55 – 12.15
The Emergence of European Movements? Civil Society and the EU
Donatella della Porta, EUI
12.15 – 13.00
Debate
Chair
Giuseppe Bronzini, Rome Appeal Courts
13.00 – 14.00: Lunch Break
14.00 – 14.20
Code, Constitution and Compromise, a Cyberconundrum?
Michele Surdi, Rome University, Political Science Dept.
14.20– 14.40
Governance and the Development of Flex-secure Labour Law (PDF file)
Giuseppe Bronzini, Rome Appeal Courts
14.40 – 15.00
Multiple Constitutions, Multiple Membership, Multiple Exclusions?
Giuseppe Allegri, Rome University
Corporate Gover-nance, Corporate Social Responsibility, Corporate
Constitution (PDF file)
Janet Dine
Queen Mary’s College, London University
15.00 – 15.45
Debate
Chair: Christian Joerges, EUI
15.45 – 16.00: Coffee Break
IV. 16.00 – 18.00: Re-Claiming ‘the Common’: The Transformation
of Governance-Projects by Social Movements
Basic Text reference: 1. M. Blecher, Law in Movement:
Paradoxontology, Law and Social Movements (PDF file), in: J. Dine, A.
Fagan, Human Rights and Capitalism, Elgar: Cheltenham 2006 (German
version: Recht in Bewegung, in: ARSP 2006 (PDF file)) ; 2. M.
Blecher, The Continuous Becoming – Towards a Post-Modern Concept of
Justice, M.S. (Speech for the Conference on ‘Human Rights and
Capitalism’, Queen Mary’s College, London, September 2006) (PDF
file). 3. Antonio Negri, From the Dangerous Classes to the Danger of
the Multitude (PDF file), Published in Global Magazine, Issue 2, May
2003. Translated by Arianna Bove. 4. Antonio Negri, Reappropriations
of Public Space (PDF file). First published in Common Sense.
Translated by Ed Emery. 5. Ruptures Within Empire, The Power of
Exodus.(PDF file) An Interview with Toni Negri by Giuseppe Cocco and
Maurizio Lazzarato. Translated from the French journal Multitudes
(Issue No. 7) by Thomas Seay and Hydrarchist. 6. Antonio Negri
interviewed on Empire by Ida Dominijanni. (PDF file) Translated by
Arianna Bove/Erik Empson.
16.00 – 16.20
From Justice as Adequate Complexity to Justice as Continuous Becoming
Michael Blecher, GTZ (Eschborn) and Vicenza
16.20 – 16.40
Social movements as production of counter-governmental practices
Roberto Ciccarelli, Istituto Italiano di Scienze Umane - Florence
16.40 – 17.00
Governance as the Production of the Common
Antonio Negri, Venice
17.00 – 17.45
Debate
Chair: Christian Joerges, EUI
V. 17.45 – 18.00: Conclusions
Michael Blecher (GTZ and Vicenza), Giuseppe Bronzini (Rome Appeal
Courts), Christian Joerges, EUI
Introduction
When this Introduction was written, Italian Prime Minister Romano
Prodi had, for many citizens, just failed to apply those new criteria
of ‘Governance’ on the Italian national level which he had introduced
on the European level as Commission President during a famous speech
on 15 February 2000. In 2000, still under the impact of the BSE
crisis and its negative impact on the reputation of the European
‘regulatory state’, Prodi had announced far-reaching and ambitious
reforms including a novel form of governing that would involve a
reorganization of the relations between political actors and civil
society, and a more democratic form of partnership between ‘the
layers of governance.’ The Commission had recognized the need of
better embedding the European regulatory and decision-making system
into the European society and opened a legally undefined space that
would be located somewhere between administrative and constitutional
reform.
And on the National level? In winter 2007, the local population of
the beautiful old city of Vicenza was denied any say on US, local and
– in the end – national Government plans to install a new US Airbase
and fresh Special Combat Troops in town. The fact that Prodi
announced his resignation in the aftermath of a huge demonstration
against the air base - only ‘to accept’ creating another Government
the week after - was rather seen as a political move supposed to
bring some of his allies back on track who had dared to share the
Vicentinians’ concerns. The population’s ‘voice’ remained unheard,
its ‘loyalty’ and trust into ‘the system’ had been extremely
challenged by the disappointing treatment and by the awareness of the
lack of any political alternative. ‘Exit’ or the establishment of new
forms of legitimate social self-organization appeared to many the
only chance to put an end to an opportunistic style of political
muddling. The ‘muddling’ itself seems to show that classical forms of
state sovereignty and political representation lose their structural
grip while new forms of ‘Governance’ have not yet been reached. A
recent (German) study tells us that there is no general legitimacy
crisis around, neither on the national nor on the international
level. The least we can notice is that different political, economic,
legal, etc. positions are presently competing to produce an
‘acceptable’ description of the ‘transition’ that we are in, while
new multi-level global forms of sovereignty and normative societal
structuring appear to be in the make. It seems that the ‘Governance’
concept has been widely accepted as the location for this competition
to take place. However, we might lose momentum for the novelties here
if we continue to take Hobbesian descriptions of state sovereignty as
launching pad, like the mentioned study does, and interpret the
national and global fragmentation of power and law rather as a
painful exit from this model while praising the post-second-world-war
period and its ‘values’ as its last ‘the golden age’. How golden was
this age for the world’s poor, and what ingenious mechanisms had King
Midas put in place to avoid the poor being affected by his golden
touch? We can hardly invisabilize the contingency of our approaches
and ‘values’, and we cannot even claim they would ‘deserve
acceptance’ (Habermas) for our own context, if we take into account
the effects of the same ‘model’ in other parts of the world.
The uncomfortable Foucault told us that, if we want to know how
‘truth’ is produced in a historic context, we should switch from the
question ‘Who is governing?’, i.e. the question of sovereignty, to
the question ‘How is power exercised?’, which is the question of the
‘art of governing’. Up to now, it seems that the analysis of the
‘Erosion of State Government’ concentrates on the difficulty to
intervene into globalized markets, which certainly require
regulation, or generally to the difficulty to avoid frictions and
negative externalities produced by autonomous national and global
‘discourses, institutions or systems’, like law, economy, Multi
National Enterprises (MNEs), politics, states, religion(s),
communication media, science, medicine, etc. As lawyers we are above
all concerned with the shift of legal forms and styles to cope with
‘regime collisions’ and with the consequential shift of competencies
to supra- and transnational or self-organized regulatory regimes. So
are we in the end just talking about the effects of and the cures to
what Luhmann called ‘the globalization of functional
differentiation’, or is there ‘more’? In order to understand this,
Foucault would probably have invited us to launch a series of
genealogic research inquiries into the architecture of the present
post-neoliberal societal ‘Gouvernementalité’ or ‘Governance’ to find
out how it is working throughout the (risky) reproduction of the
rationalities of those autonomous spheres; how ‘conflicts’ or
‘collisions’ between them are (politically, legally, economically,
etc.) managed; and which legitimization, control and immunization
devices are installed to defend this ‘network’ against decay and
resistance while maintaining sufficient openness to necessary
(reproductive) criticism and change. But do the inevitable
asymmetries of this ‘new spirit of capitalism’ better respond to the
needs of the multitude of the world’s people? Who are the winners and
losers, or rather the included and the excluded? We know that any
societal re-organization (re-) produces asymmetries and (re-)opens
together with them the normative question of how things should work;
that means logical and normative claims for different realizations of
‘the common’, of ‘wealth’, ‘justice’, ‘truth’, and ‘freedom’ are
arising. The battle against latent and open exclusion mechanisms must
always be re-organized in response to the contemporary forms of
preferences and restrictions. ‘Liberating the possible’ by unveiling
the contingency, the intimate temporary structure of the present,
against any universalism and fundamentalism - this was Foucault’s
adoption of Enlightenment’s ‘ethos’ (with and against Kant) as
‘critical ontology’. Also the Governance concept will have to face
such scrutiny.
All in all we can say, that the Governance phenomenon attracts the
attention of politicians and administrators, company managers and
trade unionists, international development organizations,
sociological, political, legal and economic scientists – and the
multi-level-voices and exit-invitations of social movements alike.
This ubiquity of the phenomenon indicates indeed an authentic shift
of the way we look at the forms of societal organization, political
legitimacy, political economy, and the role and rule of law.
Governance appears as the generalized new logic and style of
governing through countless decision-making constellations between
the various ‘knots’ of the organized global network, i.e. between
national, regional, inter- and supranational entities and
institutions and other self-organized social organisms and
rationalities. Governance is, therefore, not operating hierarchical,
but heterarchical. It reflects the problem of conflicting functional
differentiations as well as the inadequacy of traditional forms of
politico-administrative performance within the modern state. However,
there is also the residual inadequacy of the same Governance model
and, therefore, the battle for its continuous transformation.
The Seminar is supposed to shed additional, and hopefully new, light
on the various aspects of the Governance phenomenon. We have tried to
structure the access to the subject through a few basic text
references for each of the three interconnected areas (‘Governance,
Civil society and Social Movements’). The subjects of each of the
short presentations have been selected with respect to problems and
solutions discussed in these texts. Participants are invited to use
them as launching pads for their own presentation of insights into
the problem. We propose the following sequence of arguments to
approach the Governance phenomenon:
1. Our idea is to start with a rather ‘technical’ legal, but
also inevitably legal-political and political economic analysis of
the phenomenon. In this first context of the Seminar (‘The Erosion of
State Government and the Emergence of Transnational Governance’,
coordinated by Christian Joerges), Governance is looked at as a
response to three interdependent phenomena: deficits of traditional
interventionist law, the erosion of state government, and the
emergence of post-national constellations.
At international level, the term
Governance, has denoted ‘policy arrangements’ which emerge outside
the administrative system of a single nation state (government), but
which, nevertheless, have a significant impact on a globally or
regionally defined set of recipients (examples are the BSE, SARS and
bird flu crisis). In this context, ‘Governance’ remains rather
‘government’ in so far as it stands for the regulation of the economy
and social relations. This aspect is distinct from European,
international, transnational or global activities, which are not
exclusively public and involve experts, knowledge pools and civil
society representatives.
In some national environments, particularly in Germany, the
involvement of non-state actors in law-making and their engagement in
political programmes designed by governments to tackle social
problems appears to be as old as the country’s ‘organized
capitalism.’ Corporate Governance and workers’ co-determination
played a key-role here. However, with the shift to post-fordist or
post-industrialist relations between ‘capital and labour’ and the
loss of their organized temporary ‘balances’; with the neo-liberal
trend to align Government, the public sector and society as a whole
to enterprise management and to economic efficiency criteria; with
the consequential privatization and deregulation initiatives; with
the societal self-understanding as ‘risk society’; and with the
Europeanization and globalization of these processes, the reflected
use and sophisticated design of governance ‘modes’ has changed. In
all issue areas and on all levels, new practices of governance
collide with traditional concepts of the private and the public. This
leads to the question if law will have to change its self-
understanding and regulatory styles, what legal costs are involved in
such a turn to governance, and what politico-societal potential does
it have to offer.
2. At this point, the second part of the Seminar, (‘The
Network Society and the Quest of Societal and Ecological
Constitutionalizations’, coordinated by Giuseppe Bronzini), tries to
look closer at the conditions of the possibility of Governance
deriving from the network character of society. Boltanski and
Chiapello’s Study on the ‘New Spirit of Capitalism’ has shown how the
‘net’ metaphor has been used to free humankind from the burden of
‘two-level-metaphysics’ which located the single individuals on the
first level, while the second level consisted of conventions relating
the individuals among each other and subjecting them to moral and
legal judgements. These metaphysics also determined concepts of the
‘general good’ that polis concepts were based on. The net metaphor
gets rid of such kind of transcendental conditioning of social
structures. These structures reveal their pure ‘immanence’ (Deleuze):
their regulatory constraints are self-created, contingent and
require, therefore, legitimate standards, procedures, and fora
(mediation and decision making bodies). However, the net as such can
hardly be subjected to justice requirements. Only specific sections
of the net-matrix, sets of specific constellations and relations
which are bound to create a ‘contextual common good’ - say:
discourses, institutions, systems, etc. - can be adequate addressees
of (self-)regulations. Boltanski and Chiapello call the ‘polis’
concept embracing the regulatory requirements of the present
capitalist network society ‘project-based polis’. We can easily agree
on the ‘project character’ of post-modern existence. Here the term is
used to create a compromise between the requirements of the net - its
total interconnectedness, poly-centricity, heterarchy, ‘event
character’ and permanent fluctuation of countless encounters and
contacts - and the requirement to build legitimate social
organization and regulation into it. On the net’s seamless web,
‘projects’ describe countless value producing ‘accumulation spaces’
the structures of which require legitimation.
The basic form of Governance constellations can probably be well
characterized as ‘project’. It is an adequate description of the
countless single negotiation and deliberation processes bound to
resolve specific economic and political controversies by standard
setting through horizontal interactions where ‘public’ and ‘private’,
political and non-political actors create mutually acceptable
decisions, in other words the least that the Vicentinians had asked
for. The classical political-legal distinction of public and private
spheres fails indeed to grasp this phenomenon.
The ‘project constellation’ may coagulate to even more stable (but
nevertheless contingent) forms of structured societal network
organization beyond state organization. Such forms have been
described as ‘societal constitutionalisations’ (Sciulli, Teubner).
The idea is that the constitution of world society comes about not
exclusively in the representative institutions of (international)
politics, nor can it take place in a unitary global constitution
overlying all areas of society, but emerges incrementally in the
constitutionalisation of a multiplicity of autonomous subsystems or
‘regimes’ of world society which are required to (ecologically) ‘re-
spect’ each other and their natural and human ‘capital’. Among the
examples usually range the ‘global economic constitution’ (Lex
Mercatoria), the global constitution of the science and education
system, the ‘digital constitution’ of the Internet, but also a multi-
level global political constitution. All the typical constitutional
‘juridification’ devices can be found here: rules on organization and
decision-making procedures and regulation of each sector’s reflexive
‘boundary-relations’ by the establishment of individual liberties and
guarantees for other autonomous societal sectors (fundamental
rights). Ideally, one should add relevant environmental protection
rules for each specific sector.
The Seminar will discuss the plausibility, normativity and legitimacy
of such ‘civil constitutions’. It will exemplify the conditions for
their creation in the field of Corporate Governance including
corporate social responsibility. The digital constitution of the
cyberspace is another context which will be discussed. How can law
guarantee that an ever evolving cyber-liberty can resist
economization and control of cyberspace? The third application
context is post-fordist labour, which ‘the new capitalist spirit’
would rather keep fragmented to his needs and freely floating in the
net. How can Governance formations be used to develop ‘flex-security’
standards? Finally, how will the creation of ‘civil constitutions’
effect the classical definitions of access to political-social
communities, i.e. ‘membership status’ and new forms of inclusion
exclusion?
3. This brings us to the third and last section of the
Seminar, on Social Movements and their strategies to ‘re-claim the
common’ in different, ‘alternative’ forms (coordinated by Michael
Blecher). With respect to law, we are now moving on from ‘justice as
adequate complexity’ - with Social Movements as a part of the complex
societal design - to ‘justice as continuous becoming’, or to the
claim that the achievement of (more) justice always requires the
contingent, selective and restrictive results of (political,
economic, legal, etc.) Government/ Governance ‘of life’ and their
discipline and control mechanisms to be challenged.
This passage shows first, that the Governance phenomenon brings law
back to its very ‘self-constitution’: it is not anchored to a
specific ‘polis’ or ‘state’ and is able to carry the traces of
different legitimate definitions of the common good as long as it’s
own normative requirements of creating (ever more) justice under
conditions of uncertainty and ever exceeding possibilities are
achieved. Law’s self-constitution fully appears, therefore, in its
‘original’ paradox self-reproductive movement: Law organizes a
continuous battle about normative standards deconstructing the
restrictions of the global social system on democracy, common welfare
and justice. This change of legal standards for political, economic,
etc. organization and operation implies the change of law’s own
procedural and substantive parameters which were supposed to immunize
the social system against uncontrolled transformations. In other
words, law runs both immunization strategies and strategies against
immunization. The paradox is managed by the organization of different
(levels of) law producing functions and procedures including the same
Governance formations, but also Social Movements and their claims for
‘new social rights.’ Law acts ‘politically’ here, and in affinity to
the Movements which struggle against social immunization and control
beyond systemic borders and are in continuous self-transformation.
The recognition of this affinity and the reconstruction of Iherings
‘battle for law’ as ‘battle of the movements’ appear to be necessary
requisites for the continuation of post-modern critical legal thought.
The Seminar will analyse the conditions and consequences of this
approach for the organization of Governance projects and
constitutions and for the political-legal necessity to open
Governance procedures beyond strategic conservation interests to the
‘differences’ introduced by Social Movements. One can say that Social
Movements move ‘in parallel’ to the paradox of Law in Movement: they
may well be part of the balancing process which aims at adequate
societal complexity and absorbs criticism to apply the changes
necessary for its reproduction. However, they basically reject to be
just another ‘stakeholder’ or ‘participant’ in the Governance game.
It is not ‘rationalities’ and ‘interests’ requiring compatibilization
among each other which they are interested in. Social Movements and
Law in Movement are aiming at the permanent acte constituant
necessary to improve existing parameters of justice, but also at the
re-invention of the whole organizational and decisional set-up in the
form of new common institutions and respective Governance procedures.
Due to the unavoidable contingency of these parameters and
institutions, movements’ disobedience and exodus are taken for
granted. Can Law guarantee Governance formations where this
constructive ‘squaring the circle’ can take place and preserve the
openness of the process against any false uni- or multilateral
‘pacifications’ or ‘synthesis’?
