Self-Constitutionalizing TNCs? On the Linkage of 'Private' and 'Public' Corporate Codes of Conduct

Abstract

What is special about the intertwining of private and public corporate codes? It is not only tendencies of a juridification but also of a constitutionalization that materialize in this interplay. Both types of corporate codes taken together represent the beginnings of specific transnational corporate constitutions - conceived as constitutions in the strict sense. This point is based on a concept of constitution that is not limited to the nation state and implies that also non-state societal orders develop autonomous constitutions under particular historical circumstances.

The following arguments highlight that corporate codes feature functions, structures and institutions of genuine constitutions: 1. To the extent that "public" and "private" corporate codes juridify fundamental principles of a social order and establish rules for its self-restraint at the same time, they fulfil central constitutional functions. 2. With their characteristics of double reflexivity and binary meta-coding, both codes develop genuine constitutional structures. 3. As constitutional institutions, the two codes do not form a hierarchy of public and private constitutions, but an ultracyclical linkage of qualitatively different networks of constitutional norms.

Keywords: constitutionalization, transnational corporate constitution, juridification

JEL Classification: K00, K10, K20, K22