The Cogs and Wheels of Reflexive Law – Business Disclosure under the Modern Slavery Act

AuthorShuangge Wen
Publication Date01 Sep 2016
ISSN: 0263-323X, pp. 327±59
The Cogs and Wheels of Reflexive Law ± Business Disclosure
under the Modern Slavery Act
Shuangge Wen*
In response to the novel challenges posed by labour exploitation in the
contemporary business context , recent years have witnessed an
increasing adoption of reflexive law in the form of slavery disclosure,
s. 54 of the United Kingdom Modern Slavery Act 2015 (MSA) being the
latest attempt. Given that the pragmatic usages and effects of reflexive
law have been explored far less to date than its conceptual and
jurisprudential implications, this article seeks to put matters right by
critically examining the use of this regulatory mode in the context of
s. 54. It also aims to contribute to the broader appraisal of regulatory
methods by comparing reflexive laws with the traditional regulatory
dichotomy which has long dominated debates on globalized business
and human rights.
Justice, they say, has a long arm. However, reality suggests that at least in the
global supply chain context regulatory efforts to eliminate modern slavery
have not been that effective. Although slavery has now been de jure outlawed
in all countries and the term itself is only used when referring to historical
events or pointing to specific unethical occurrences in underdeveloped
regions, its actual practice continues in varied manifestations, with the multi-
layered, opaque source webs of transnational commercial organizations
serving as convenient concealing mechanisms for this misdemeanour.
*School of Law, Centre of Jurisprudence Research, Jilin University, 2699
Qianjin Street, Changchun, Jilin, 130012, China; International Institute of
Shipping and Trade Law, Swansea University, Swansea SA2 8PP, Wales.
I would like to express my gratitude to the anonymous referees, Professor Lidong Cai,
and Professor Andrew Tettenborn for their helpful suggestions on early drafts. Special
thanks are also due to Jilin University for the award of the Philosophy and Social Science
Research Grant (2015FRLX10) that supported this research.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
Calls for regulating the unscrupulous practice of slavery in the context of
supply chains, which often have a transnational character, have been part of
the ever-strengthening counter-hegemonic tendency in the age of global-
Until recently, debates over how to control this social ill have been
mainly dominated by a rigid dichotomy between increasing regulation and a
laissez-faire system, reflecting the ostensibly irreconcilable impasse between
human rights advocacy groups and businesses.
In the 1990s, along with the blossoming of the concept of corporate social
responsibility (CSR) in the global arena, a greater reliance on invisible-hand
discipline gave rise to a proliferation of non-governmental governance
mechanisms in the form of corporate self-regulation and multi-stakeholder
initiatives in the arena of business and human rights. However, these private
ordering schemes were subsequently shown to fall short of achieving the
desirable substantive ends in a world of profit-maximizing firms ± the coverage
of human rights initiatives remained small, leaving sizeable protection gaps,
with gr ieva nce me chan isms f or vic tims a nd ext erna l acco unta bili ty
mechanisms either weak or non-existent.
Equally falling on stony ground
were command-and-control regulatory attempts. The transnationalized spread
of modern slavery has given rise to novel legal issues transcending nation-
states' geographical territories and their bounded systems of law, and the idea
of imposing overarching substantive obligations on commercial organizations
is doctrinally incompatible with existing international legal systems. In
addition, attributing human rights duties to a commercial organization based on
its supply chains, which might be located far away from its home, would
generate complex impacts in an array of non-legal fields, from political
economics to international investment, from national foreign policy to private
business lobbying ± the list goes on. Not least owing to these concerns, apart
from a body of NGOs there has been near-universal political opposition to the
imposition of substantive obligations, as demonstrated by the gloomy fate of
the 2003 UN Norms.
This leads to a need for, and an intensifying movement
towards, a viable alternative to traditional choices of regulation.
Inspired by the UN's unanimous endorsement of the Guiding Principles
on Business and Human Rights in 2011, which defined the nature of
businesses' responsibility to respect the human rights of all those affected by
1 A. Brysk and A. Choi-Fitzpatrick, `Introduction' in From Human Trafficking to
Human Rights: Reframing Contemporary Slavery, eds. A. Brysk and A. Choi-
Fitzpatrick (2011).
2 D. Hess, `Social Reporting: A Reflexive Law Approach to Corporate Social
Responsiveness' (1999±2000) 25 J. of Corporation Law 41, 42.
3 See nn. 60±74 below; J. Ruggie, Just Business: Multinational Corporations and
Human Rights (2013) xvi, 68, 76.
4 Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2
(2003). See Ruggie, id., for a detailed discussion of the defeat of the 2003 Norms.
5 Hess, op. cit., n. 2, p. 42.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
their operations as a social norm over and above `compliance to laws and
the past few years have witnessed a regulatory shift towards
the reflexive paradigm, beyond the conventional selection between the
enabling mode of governance and command-and-control laws. Shorthand for
`regulated autonomy', reflexive law as an evolutionary conception of law
suggests a mode of legal intervention (often procedural) to underpin and
encourage various so cial subsystems' se lf-reflection an d autonomous
In combating modern slavery, this reflexive-law approach has
been typified by a mandated social reporting form, geared towards fostering
business self-regulation and wide participation of private actors affected by
this social ill, a prominent example being s. 54 of the Modern Slavery Act
(MSA) 2015, recently introduced in the United Kingdom.
To be sure, the MSA as a whole is not reflexive in nature ± it mainly
concerns laying bare the accommodating nature of the offence of `modern
slavery' and codifying criminal offences currently dispersed in United
Kingdom domestic legislations. However, after carefully consulting all
affected members, the lawmakers decided to insert the novel provision of
s. 54 into the Act, requiring commercial organizations to disclose in their
annual slavery statement whether they have made efforts to ensure that
slavery and human trafficking are not taking place in their global supply
chains, and if so, requiring a statement of the detailed steps taken.
mandate has reflexive resonances in several aspects, demonstrated in its
conformation to the global regulatory currents, its reliance on internal
business decision making in tackling modern slavery, and its promotion of
multi-stakeholder engagement by eliminating information asymmetry. In
principle this provision would apply to all types of commercial organizations
that satisfy the prescribed threshold of £36 million annual turnover and have
sufficient territorial connection to the United Kingdom,
although in
implementation the impact would particularly be felt where the activities
concern transnational corporations (TNCs) with operations outside the
United Kingdom's jurisdiction, who are said to be `the most powerful agent
for the internationalisation of human society'.
Although this provision focuses on enhancing transparency in supply
chains, its broad-spectrum relevance to the impact and responsibility of
commercial organizations to respect human rights, amid contentious debates
6 United Nations Human Rights Office, Guiding Principles on Business and Human
Rights: Impleme nting the United N ations `Protect , Respect, and Reme dy'
Framework (2011) Principle 11 Commentary.
7 See nn. 80±94 below for further discussions on the connotation of reflexive law.
8 Modern Slavery Act (MSA), s. 54(4).
9 The Modern Slavery Act (Transparency in Supply Chains) Regulations 2015, No.
1833, Regulation 2.
10 Comments from Aurelio Peccei, a Director of Fiat during the 1970s and organizer of
the Club of Rome, quoted by F. Johns, `The Invisibility of the Transnational
Corporations' (1993±1994) 19 Melbourne University Law Rev. 893.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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