Governance Without Government: An Overview and Application of Interactions Between Law-State and Governance-Corporate Systems

Abstract

The diffusion of power in the wake of globalization has also revived the recognition of governance authority beyond the state and its formally constituted governance apparatus. Globalization is said to have produced movements toward governance that is based on functionally differentiated transnational public systems that operate above the state. Globalization has provided a governance framework environment marked by a fracturing and diffusing of power beyond political actors. Though the state remains very much alive and continues to be powerful within the ambit of its authority, its claim to a monopoly of governance power, either directly or through public organs at the supra- or infra- national levels, is no longer plausible. This chapter provides an overview of the extent of “governance without government” outside the framework of the state system of public law. It suggests the possibility of a public law without public organs, and the constitution of governance beyond both government and state. The chapter first examines the strands of the theoretical debate. The focus of this section is on a growing corpus of work that suggests that while non-governmental actors are, to an increasing extent, exercising governance power, defined in a variety of ways, none of these governance systems has achieved “escape velocity” from the state. Nor, for many, is such an escape necessary, feasible or prudent. The heart of the examination is on the more radical notion that private entities also govern without the state or its apparatus in functionally differentiated regulatory communities. This is not merely academic theory. A recent example from within the OECD’s enforcement structure points the way to the future. Through an examination of the U.K. National Contact Point’s decision in Vedanta one sees the outlines of polycentricity as an aggregating mechanism for the elaboration of non-state systems free, within its jurisdiction, from the state.