A Lex Mercatoria for Corporate Social Responsibility Codes Without the State? A Critique
of Legalization Within the State Under the Premises of Globalization

23 Pages Posted: 29 Oct 2015 Last revised: 22 Nov 2016

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: January 1, 2016

Abstract

Recent efforts have sought to theorize the legalization of the social and economic sphere that is undiminished by time. Though the context has changed over time, the project remains the same—to embed behavior control within a network of mandatory proscriptions attached in some authoritative way to the state. Corporate social responsibility has been bound up in corporate codes of behavior and related private governance standards systems. In that form, it serves as a key site for the evolution of legalization and legitimacy in governance. That evolution appears to take corporate social responsibility from its twentieth century formalist rigidity into something of a bridge between the political and social sphere. This essay considers the legalization project and its challenge to the logic and legitimacy of law and the dangers—for state and business enterprise—that flow from the fundamental ideological premises that appear to make this legalization project within the state both necessary and inevitable. These dangers include the misdirection of labeling—dismissing nonlaw as necessarily illegitimate, the obliteration of the fundamental construct of and constraints inherent in the corporate form, the error of conflating regulation with law, the unintended consequence of subverting law through the incorporation of a societal element in lawmaking, the error of denaturing the societal element of corporate codes, and the production of perversity through the formalism of law that masks inverted power relations between powerful enterprises and weak states. Paradoxically, perhaps, the project of legalization evidences how a love of ancient custom, in this case the customs and patterns of the post-Westphalian law-state, remains, while power shifts to those, enterprises included, that have brought about a revolution in the state and in the meaning of legalization in a new world order that has yet to be revealed.

Keywords: Multinational corporations, corporate codes, CSR, international law

JEL Classification: A13, M14, K22

Suggested Citation

Backer, Larry Catá, A Lex Mercatoria for Corporate Social Responsibility Codes Without the State? A Critique of Legalization Within the State Under the Premises of Globalization (January 1, 2016). Indiana Journal of Global Legal Studies, Vol. 23, No. 2, 2016. Available at SSRN: https://ssrn.com/abstract=2681918

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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