Transnational Networked Constitutionalism
| Author | Oren Perez,Ofir Stegmann |
| DOI | http://doi.org/10.1111/jols.12107 |
| Published date | 01 July 2018 |
| Date | 01 July 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S135±S162
Transnational Networked Constitutionalism
Oren Perez* and Ofir Stegmann*
The emergence and increasing importance of private transnational
legal structures in global governance presents a puzzle for legal theory.
These new forms of transnational law (TL) can be found in diverse
areas, ranging from trade-related issues, to corporate responsibility,
human and labour rights, and environmental protection. Transnational
constitutionalists have argued that this phenomenon has a constitu-
tional quality. The challenge of transnational constitutionalism lies in
developing an institutional model that explains how constitutionally
embedded legal authority can arise independently of the institutional
structures of state-based public law. We propose a new theoretical
framework for thinking about non-statist legal authority, which we term
`networked constitutionalism'. We conceptualize transnational legal
authority as an emergent, network-based phenomenon and elaborate
the institutional conditions that undergird its emergence. We illustrate
our thesis through a network analysis of a large sample of corporate
social responsibility codes.
The emergence and increasing importance of private transnational legal
structures in global governance presents a puzzle for legal theory. These new
forms of transnational law (TL) can be found in diverse areas, ranging from
trade-related issues, such as financial reporting, corporate governance,
product standards, and copyright, to core sustainability issues focusing on
corporate responsibility, human and labour rights, an d environmental
protection.
1
The nature of this process, however, is still subject to debate.
S135
*Faculty of Law, Bar-Ilan University, Ramat-Gan, 5290002 Israel
Oren.Perez@biu.ac.il Ofirsteg@netvision.net.il
I dedicate the article to Professor Gunther Teubner who was my PhD supervisor at the
London School of Economics and Political Science and a source of inspiration and
friendship ever since (O. Perez).
1 See, for example, T. Bartley, `Institutional Emergence in an Era of Globalization: The
Rise of Transnational Private Regulation of Labor and Environmental Conditions'
(2007) 113 Am. J. of Sociology 297, at 299; O. Perez, `Private Environmental
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Transnational constitutionalists, such as Gunther Teubner, Neil Walker, and
Peer Zumbansen, have argued that this phenomenon has a constitutional
quality. Teubner described it as follows:
In the sea of globality, only islands of the constitutional will emerge. The new
constitutional reality is characterized by the co-existence of independent
orders, not only of states, but at the same time also of autonomous non-state
social structures.
2
Neil Walker has emphasized similarly the way in which these new forms of
law challenge our conventional understanding of legal authority. What is
distinctive of global law he argued, are the `varied and recurrent ``intima-
tions'' of new ways of framing legal authority globally which challenge the
``box matrix'' frame of state sovereignty.'
3
Other scholars, such as Martin
Loughlin, have been more sceptical of this argument. For Loughlin, `[g]lobal
law is ratio; it is the expression of a type of instrumental reason that informs
the guidance, control, and evaluation mechanisms of the many regulatory
regimes that now permeate contemporary life.'
4
It does not possess the kind
of authority attributed to it by transnational constitutionalists.
At the core of the debate of transnational constitutionalism lies the
question of whether non-state law can develop systemic autonomy. Develop-
ing a theory of autonomous transnational law whose authority cannot be
traced back to state-based sources, faces several challenges. Although TL
has the appearance of law in its textual underpinnings (its myriad codes and
guidelines establish a textual environment that greatly resembles national
law),
5
it lacks the institutional building blocks that are associated with law in
S136
Governance as Ensemble Regulation: A Critical Exploration of Sustainability Indexes
and the New Ensemble Politics' (2011) 12 Theoretical Inquiries in Law 543, at 548;
O. Perez, `The Green Economy Paradox: A Critical Inquiry into Sustainability
Indexes' (2016) 17 Minnesota J. of Law, Sci. & Technology 153; D. Vogel, `Private
Global Business Regulation' (2008) 11 Annual Rev. of Political Science 261, at 271.
2 G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization
(2012) 52. See, also, G. Teubner, `Global Bukowina: Legal Pluralism in the World
Society' in Global Law without a State, ed. G. Teubner (1997) 3; G. Teubner,
`Fragmented Foundations: Societal Constitutionalism Beyond the Nation State' in
The Twilight of Constitutionalism?, eds. M. Loughlin and P. Dobner (2009) 327.
3 N. Walker, `The Shaping of Global Law' (2017) 8 Transnational Legal Theory 360,
at 369.
4 M. Loughlin, `The Misconceived Search for Global Law' (2017) 8 Transnational
Legal Theory 353, at 356.
5 For concrete examples, see, for example, the text of Social Accountability 8000
International Standard 201 4 (SA8000) (
SA8000Standard2014(1).pdf>) or the Equator Principles (EP) III (2013) (
www.equator-princ iples.com/index.p hp/ep3>). For a gener al discussion of the
linguistic features of law, see E. de Maat and R. Winkels, `Automated Classification
of Norms in Sources of Law' in Semantic Processing of Legal Texts, eds. E.
Francesconi et al. (2010) 170; B. Waltl et al., `Classifying Legal Norms with Active
Machine Learning' in Legal Knowledge and Information Systems, eds. A. Wyner and
G. Casini (2017) 11.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
its domestic and international manifestations. TL lacks a judicial system,
which plays a crucial role in generating the communicative dynamics
characteristic of domestic legal systems. It also lacks a legislative structure
that links the legal system with the political sphere and provides it with
legitimacy. Furthermore, TL does not possess the kind of societal solidarity
and deliberative structures (a demos) that are considered essential by
democratic theorists for the emergence of constitutional regimes.
6
These
missing institutional components raise doubts about the capacity of TL to
generate the kind of reflexive communicative dynamics characteristic of
autonomous legal systems. An argument that TL constitutes a new type of
legal authority operating beyond the traditional structures of state politics
must be accompanied by an institutional model that explains how such
authority can arise independently of the institutional structures of state-based
public law.
7
In this article we propose a new theoretical framework for thinking about
non-statist legal authority, which we term `networked constitutionalism'.
Our framework offers a new way of imagining the constitutionalization of
law at the transnational level, which goes beyond the work of other trans-
national legal theorists such as Gunther Teubner, Neil Walker, Paul Berman,
and Peer Zumbansen, by specifying the inst itutional condition s that
undergird the emergence of transnational legal authority. We develop a
detailed, network-based model, and elaborate the institutional pathways by
which these new non-state legal structures acquire their autonomous
dynamics. We describe transnational legal authority as an emergent,
network-based phenomenon. By providing a new theoretical basis for the
emergence of postnational authority that does not simply mirror existing
state-based constitutional structures, we seek to respond to the critique of TL
sceptics such as Martin Loughlin.
8
In our framework, TL is not merely a
variation on a theme: there is something fundamentally distinct about its
modes of emergence and operational dynamics. By focusing on the network
facet of TL, our thesis provides a new conceptual framework for thinking
about TL and at the same time outlines an ambitious programme for
empirical research.
The idea that networks play a significant role in global governance can be
found in the work of other scholars,
9
but there has been no attempt to provide
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6 N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law
(2010) 14±15.
7 Loughlin, op. cit., n. 4.
8 id.
9 A.-M. Slaughter and D.T. Zaring, `Networking Goes International: An Update'
(2006) 2 Annual Rev. of Law and Social Science 211; S. Wood et al., `The Interactive
Dynamics of Transnational Business Governance: A Challenge for Transnational
Legal Theory' (2015) 6 Transnational Legal Theory 333; G. Shaffer, `Theorizing
Transnational Legal Ordering' (2016) 12 Annual Rev. of Law and Social Science 231;
V. Heyvaert, `The Transnationalization of Law: Rethinking Law through Trans-
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
a complete and empirically driven account of the constitutive function of
networks in the evolution of post-national legal authority. The literature on
legal pluralism, for example, has tended to focus on the dilemmas generated
by the interaction between the network nodes. Teubner and Fischer-Lescano,
for example, have examined the problem of regime collisions,
10
and Nico
Krisch has considered the role of interface norms ± which contains a solution
to the problem discussed by Teubner and Fischer-Lescano.
11
Although this
analysis touches upon important issues, it leaves unanswered the question of
how these pluralistic systems acquire their authority. Other works have
attempted to unfold the fundamental logic of transnational networks;
however, their conceptual approach was not sufficiently refined to capture
the complex institutional pathways through which transnational networks
evolve and operate. For example, Neil Walker used the ambiguous term
`mutual irrigation' to describe the interaction between `post-national institu-
tions of governance'.
12
Karl-Heinz Ladeur has written about a `new
relational ``rationality of networks''', in which `legal meaning must be
generated from several overlapping texts and contexts of practice in an
exper imen tal ap proa ch tha t comp rises bot h the do mest ic and t he
transnational realms.'
13
Zumbansen and Bhatt have discussed the `the
thickening of the transnational constitutional space' through co-evolution
`with the actual development of specialised institutional and procedural
norms, which continue to exist in fragmented, regulatory realms.'
14
All these accounts capture important intuitions about transnational net-
works, but they stop short of developing an explicit account of the constitu-
tive role of networks in the self-foundation of TL and of the exact
institutional pathways by which it takes place.
15
Furthermore, none of these
works has attempted to corroborate the conceptual framework they propose
S138
national Environmental Regulation' (2017) 6 Transnational Environmental Law 205;
Walker, op. cit., n. 3, 15; Krisch, op. cit., n. 6, p. 237; G. Teubner, `Coincidentia
Oppositorum: Hybrid Networks Beyond Contract and Organisation' in Networks:
Legal Issues of Multilateral Co-Operation, eds. M. Amstutz and G. Teubner (2009) 3;
A. Hamann and H. Ruiz Fabri, `Transnational Networks and Constitutionalism'
(2008) 6 International J. of Constitutional Law 481.
10 G. Teubner and A. Fischer-Lescano, `Regime-Collisions: The Vain Search for Legal
Unity in the Fragmentation of Global Law' (2004) 25 Michigan J. of International
Law 999.
11 Krisch, op. cit., n. 6, p. 286.
12 Walker, op. cit. n. 3, p. 15.
13 K.H. Ladeur, `The Emergence of Global Administrative Law and Transnational
Regulation' (2012) 3 Transnational Legal Theory 249. For other attempts, see
Heyvaert, op. cit., n. 9, p. 216; Hamann and Ruiz Fabri, op. cit., n. 9.
14 P.C. Zumbansen and K. Bhatt, `Transnational Constitutional Law' (2018) TLI Think!
Paper 6/2018, at .
15 Gunther Teubner's work on connected contracts offers a more sophisticated concep-
tual framework than some of the other accounts, but it also stops short of developing a
full account of network-driven authority. We discuss Teubner's contribution later.
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through systematic empirical analysis.
16
We seek to rectify this shortcoming
in this article by developing a model of networked constitutionalism that
incorporates ideas from mathematical network theory, which we then
examine empirically.
Section I explores the problem of grounding in the discussion of
postnational legal authority, linking it to the truth-teller paradox. Section II
develops our model of networked constitutionalism. Section III illustrates
our thesis through network analysis of a large sample of corporate social
responsibility codes.
I. THE PARADOX OF LAW WITHOUT GROUNDING
We can restate the problem of post-national legal authority somewhat
differently. The key to the puzzle of post-national legal authority lies in
developing a better understanding of its distinctive mechanisms of self-
grounding. The question of grounding is critical for the idea of transnational
legal authority because the mechanisms by which this paradox is resolved
domestically do not exist at the transnational level. Gunther Teubner phrased
this puzzle as follows:
The contradiction remains: the self-foundation of social subsystems is taking a
global course, while only nation-state institutions are available to ensure their
political-legal constitutionalization . . . Which constitutional subjects, then,
will replace nation states to advance the constitutionalization of the global
sectors? Can the system of international politics take on this role? Or will the
global function systems develop their own constitutions? Or will they be
replaced by other transnational configurations ± regimes, formal organizations,
networks, assemblages, or ensembles?
17
Nico Kir sch prov ided ano ther for mulati on of this p roble m, which
emphasizes the lack of a common demos in the transnational space:
18
One of the main challenges behind this task is to clarify what self-government
through a constitution could mean in a space such as the postnational in which
there is no uncontested collective that could express its will in constitutional
terms. After all, one of the most prominent challenges of constitutionalism and
democracy beyond the state is based on the alleged lack of a common `demos'.
S139
16 Ladeur, op. cit., n. 13, p. 249; Heyvaert, op. cit., n. 9, p. 220; Hamann and Ruiz Fabri,
op. cit., n. 9.
17 Teubner, op. cit. (2012), n. 2, pp. 44±45. He also noted that:
Global self-foundation and national constitutionalization are irrevocably drifting
apart, causing pressure to de-territorialize societal sub-constitutions. Yet the
triangular constellation of politics-law-subsystem which, as shown in the previous
chapter, bore the societal sub-constitutions in the nation state, has no counterpart
in the global context. Its role in both enabling and limiting system autonomy
remains unfulfilled.
(id., p. 44, and see, further, pp. 55, 61.)
18 Krisch, op. cit., n. 6, p. 55.
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Martin Loughlin's critique of the postnational law argument provides yet
another account of this dilemma by focusing on the question of `institutional
grounding' (here presented by Neil Walker):
For him [Loughlin], law is not really law unless it is located within a firm and
resilient institutional framework ± a framework epitomised by the state legal
order but by no means restricted to this one type. The stuff with which I am
concerned, according to Loughlin, is really just `regulation' ± a kind of ratio-
based instrumental reas on concerned with the achi evement of narrow
transnational purpose which may well lack the kind of institutional grounding
associated with law.
19
Another way of understanding this puzzle is through the language of self-
referential paradoxes. The problem facing transnational lawyers ± what
Martin Loughlin has termed `avant-garde legal scholars'
20
± is to develop a
convincing account of the self-authorization of law outside the boundaries of
state politics. A similar problem arises in logic in the truth-teller paradox.
Consider the following example.
(i) K
1
This sentence is true
K
1
is the cousin of the famous liar paradox;
(ii) K
2
This sentence is false
K
1
appears, at first look, unproblematic. We can, so it seems, take what it
says at face value, that is, consider it true. Indeed, K
1
does not generate the
kind of semantic instability that characterizes liar-like sentences. On close
reflection, however, this conclusion seems hasty. Unlike liar sentences (K
2
),
the problem with K
1
does not lie in its semantic instability but in its
irresolvable indeterminacy: there seems to be no way to determine whether
K
1
is true or false.
21
K
1
can be consistently assigned conflicting true/false
values, which makes it hopelessly undetermined.
The irresolvable indeterminacy of the truth-teller is preserved even when
you produce a truth-telling sequence, which consists of an endless series of
sentences of the following form (each sentence belonging to the domain of
its predecessor);
22
(iii) S
n
S
n+1
is true
Similarly, the paradox is preserved if we assume a cycle of truth-tellers, each
one asserting the truth of its neighbor (the sentence on its right). Such a truth-
telling cycle (Figure 1) has the same indeterminacy of the single (or
sequential) truth-teller: again, the sentences can be all either true or false.
23
S140
19 Walker, op. cit., n. 3, p. 368.
20 Loughlin, op. cit., n. 4.
21 C. Mortensen and G. Priest, `The Truth Teller Paradox' Logique et Analyse Louvain
(1981) 81.
22 This example is taken from H. Herzberger, `Paradoxes of Grounding in Semantics'
(1970) 67 J. of Philosophy 145, at 150.
23 Circular liars, a cycle of liar sentences, each one asserting the falsity of its neighbor
(the sentence on my right is false) produce a different result. Such sentences are
paradoxical only if the number of nodes is odd. They are indeterminate if the number
of vertices is even.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
As Herzberger noted, what both liar and truth-teller sentences have in
common is their groundlessness.
24
This reflects the intuition that the `truth of
a sentence must be grounded in something outside the sentence itself.'
25
The
paradoxicality of the liar and truth-telling sentences can be explained either
by the fact that they include themselves in their domain (domain being what
a sentence is about), as in the simple liar and the simple truth-teller, or by the
fact that they form an infinite or circular sequence of `aboutness,' which
does not terminate ± as in the sequential or cyclical truth-telling sentences in
Figure 1.
26
What distinguishes the liar paradox from the truth-teller paradox
is that:
In the standard liar paradox, the problem is that there is no consistent
assignment of truth-values. In the truth-teller paradox, the problem is that there
are too many consistent assignments. An assignment must involve an arbitrary
choice as to which truth-value should be assigned.
27
In law, naturally, what is in question is not the truth of a particular sentence
but the validity of a given legal corpus, which usually consists of a set of
norms. Validity distinguishes between the law (rules) in force and that which
is not law. In other words: `law which is not valid is not law.'
28
The concept
of validity contains, however, an inevitable circularity: validity can be
determined only recursively, that is, by reference to valid law.
29
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Figure 1. Cyclical truth-telling sentences
24 Herzberger, op. cit., n. 22, p. 148.
25 R.M. Sainsbury, Paradoxes (1995) 114. Herzberger offered the following definition
of grounding: A sentence Sis groundless when `Sis the first member of some infinite
sequence of sentences, each of which belongs to the domain of its predecessor.' This
definition appears in the Erratum to his 1970 article, see Herzberger, id., p. 317.
26 Herzberger, id., p. 147.
27 R. Sorensen, Vagueness and Contradiction (2001) 167.
28 N. Luhmann, Law as a Social System (2004) 125.
29 id., p. 128.
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II. PATHWAYS TO TRANSNATIONAL NETWORKED
CONSTITUTIONALISM
1. From hierarchy to network: the topological realization of networked
constitutionalism
In the political reality of the state, the circular paradoxicality of law is
resolved through the creation of mythical historical moments.
30
As concisely
formulated by Teubner, the question is:
[w]hether the paradoxical relation of pouvoir constituant/pouvoir constitu,
underlying the nation-state constitution, also applies to non-state social orders
. . . Do private tr ansnational regimes als o experience the phenomenon
described by Jacques Derrida as a `mystical recursivity', whereby a constituent
power, undecided between performativity and constativity, founds itself while
it simultaneously presupposes its own existence?
31
The socio-political mechanisms used to resolve the grounding paradox in the
domestic context are not applicable to the transnational one. We argue that
within the area of TL, the paradox is resolved through the emergence of
cyclical, self-validating network structures. Although these recursive net-
work structures do not resolve the paradox from a purely logical perspective
(we saw above that the truth-teller paradox is preserved also in its cyclical
form), they have the capacity to change socio-political reality in a way that
suppresses the paradox. For this to happen, certain conditions must be
satisfied, related, in particular, to network topology (density and complexity)
and dynamics (intensity of the communicative interactions that take place
within the network).
Our model provides a novel perspective of the puzzle of transnational
legal authority by modelling it as an emergent, network-based property.
32
We elaborate the process of transnational constitutionalization by spelling
out the structural and dynamic conditions that enable the emergence of
networked-based legal authority. Our argument is based on the intuition that
once these structural and dynamic thresholds are satisfied, the network
develops synergistic properties ± exhibits positive normative and compliance
externalities ± that facilitate the emergence of a new form of distributed
transnational authority, which we term networked or ensemble constitu-
S142
30 This pragmatic solution does not resolve the logical difficulties associated with the
concept of validity: G. Teubner, `Breaking Frames: The Global Interplay of Legal and
Social Systems' (1997) XLV Am. J. of Comparative Law 149.
31 Teubner, op. cit. (2012), n. 2, p. 61; J. Derrida, Otobiographies: l'enseignement de
Nietzsche et la politique du nom propre (1984) 13.
32 See Perez, op. cit., n. 1 for the first elaboration of this idea. Note that we do not argue
for exclusivity; there can be mechanisms other than networks that facilitate the
emergence of private transnational authority. For general accounts of the ideas of
emergence and synergy, see P.A. Corning, `The re-emergence of ``emergence'': A
venerable concept in search of a theory' (2002) 7 Complexity 18.
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tionalism. Note that this account reflects a radical departure from Kelsen's
pyramidal normative order.
33
The authority of the network nodes (the
distinct codes or regimes) cannot be traced back to a single institution,
regime, or code, whether within the network or outside it. Rather, the legal
authority of each regime co-emerges with the evolution of the network, and
fully crystallizes only after certain thresholds of density and intensity are
exceeded. While certain TL regimes may hold a more central position in the
network compared to others, the relation between central and peripheral
regimes is not hierarchical (in contrast to the hierarchical structure of
national judicial systems). Rather, the centre/periphery distinction evolves as
a form of spontaneous, non-hierarchical, internal ordering. Central regimes
play a more significant role (than peripheral ones) in facilitating the
diffusion of knowledge within the network, in recruiting new subjects, and in
expanding the network boundaries by forging new ties with external TL
regimes. The concept of networked authority also differs from the concep-
tual framework of legal pluralism (which was also proposed as an alternative
to the pyramidal model).
34
Although both networked constitutionalism and
legal pluralism share the idea of poly-centrality, their position with respect to
legal authority is different: the model of ensemble constitutionalism assumes
that the authority of transnational legal regimes is an emergent property of
the network; legal pluralism has approached the puzzle of legal authority as a
question that needs to be studied separately for each regime. Legal pluralism
seems to be more concerned with the dynamics of the new pluriversum than
with its evolutionary path.
35
The model of networked constitutionalism considers the transnational
network of legal regimes as a multiplex network, which consists of multiple
layers.
36
The emergence of autonomous legal dynamics is contingent upon
the realization of several structural thresholds across four key layers.
2. Creation of validity through cross-referencing of legal norms
37
This layer focuses on cross-references between the legal codes that are part
of the network. In the methodological section we develop a taxonomy of
different types of cross-referencing. Note that the kind of external validation
we expect to find in these cross-references is implicit. We do not expect to
find explicit forms of validation, such as empowering legislation, which
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33 M. Baurmann, `Legal Authority as a Social Fact' (2000) 19 Law and Philosophy 247.
34 See, for example, A. von Bogdandy, `Pluralism, Direct Effect, and the Ultimate Say:
On the Relationship between International and Domestic Constitutional Law' (2008)
6International J. of Constitutional Law 397; Krisch, op. cit., n. 6.
35 For example, von Bogdandy, id., p. 401.
36 M. KivelaÈ et al., `Multilayer Networks' (2014) 2 J. of Complex Networks 203; L.M.
Verbrugge, `Multiplexity in Adult Friendships' (1979) 57 Social Forces 1286.
37 A. Wiener and P. Liste, `Lost without Translation?: Cross-Referencing and a New
Global Community of Courts' (2014) 21 Indiana J. of Global Legal Studies 263.
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delegates law-making power to another institution.
38
Any cross-referencing
between codes constitutes an implicit recognition of the validity of the cited
code. Although such reference can also be driven by epistemic considera-
tions, we argue that the normative facet of the reference, that is, the act of
recognition underlying it, is prior to the epistemic measure and facilitates it,
because it acts as a meta-cognitive device that selects the factual strata
through which learning is performed.
A key methodological and theoretical problem in this context is deter-
mining what qualifies as a `codified text' that should be considered part of
the network. In a transnational context there are no secondary rules indicat-
ing which text is legal, and hence valid, and which is not. Any marking is
performed recursiv ely and simultaneous ly through process es of self-
reference and external reference. Self-reference or self-authorization is
achieved by marking the `legal' text with terms that have clear legal
connotation, such as `standard' or `principles').
39
External-reference denotes
the process of external recognition by other codes, which takes place through
cross-citation. There are two primary types of norms: first-order norms that
regulate a particular field of action
40
and second-order norms that regulate
how first-order norms are revised (they may be directed either internally or
externally).
41
S144
38 For the features of empowering legislation, see, for example, Legislation Advisory
Committee, Guidelines on Process and Content of Legislation. 2014 Edition (2014)
ch. 13, `Delegating law-making powers to the executive', at
assets/documents/LAC-Guidelines-2014-edition.pdf>; P.H Aranson et al., `Theory of
Legislative Delegation' (1982) 68 Cornell Law Rev. 1; R.A. Cass, `Delegation
Reconsidered: A Delegation Doctrine for the Modern Administrative State' (2017) 40
Harvard J. of Law and Public Policy 147.
39 Another condition for considering a certain text as legal is that it be structured using
the legal language of duties and obligations. For example, the Equator Principles use
a commanding language: `For all Category A and Category B Projects, the EPFI
(Equator Principles Financial Institutions) will require the client to conduct an
Assessment process to address, to the EPFI's satisfaction, the relevant environmental
and social risks and impacts of the proposed Project (Principle 2), and the Global
Compact Principle 1 states that `Businesses should support and respect the protection
of internationally proclaimed human rights.'
40 For example, SA8000 (`The SA8000
Õ
Standard is the leading social certification
standard for factories and organizations across the globe', at
index.cfm?fuseaction=Page.ViewPage&PageID=1689>), or Equator Principles (`The
Equator Principles (EPs) is a risk management framework, adopted by financial
institutions, for determining, assessing and managing environmental and social risk in
projects'), at
41 See, for example, `Standard Operating Procedure for the Development of Fairtrade
Standards (2 016) (inter nal coverage ), at //www.fair trade.net /fileadmin /
user_upload/conte nt/2009/standard s/SOP_Development_ Fairtrade_Standa rds.pdf>);
PEFC Council, `Standard Setting ± Requirements' (2017) (external coverage) PEFC
ST 1001:2017, at ages/documents/standards/PEFC_ST_
1001-2017_-_Standard_Setting.pdf>. This category also includes institutional norms,
which determine the organizational structure of the institution behind the code.
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3. Linking texts and subjects: indirect ties through affiliation
Law without subjects is not law. In domestic legal orders there are automatic
mechanisms of subjectivization that turn people, through birth or residence,
into `legal subjects' who are bound by the law of the state.
42
At the trans-
national level such automatic mechanisms do not exist. Law must recruit its
subjects. Such recruitment can take various forms. In the corporate social
responsibility (CSR) domain, the main recruitment mechanisms are cer-
tification and membership. In the case of lex digitalis, the main mechanism
is that of standard digital contracts, which is how Google, Facebook, and
Amazon impose their rules.
43
From a network perspective, the subjectivization process can be captured
by a bipartite (or affiliation) network. A network is bipartite if its nodes can
be divided into two sets in such a way that every edge connects a node in one
set with a node in the other set.
44
In a network with a constitutional potential,
the first set includes a list of distinct standards (associated with different
regimes), and the second a list of subjects (for example, firms). Figure 2
shows an example of a bipartite network of TL codes and firms as two
separate sets. Firm A is linked to codes A and B, firm B is linked to B, and
firm C is linked to C and A.
S145
42 G.M. Danilenko, `International Jus Cogens: Issues of Law-Making' (1991) 2
European J. of International Law 43.
43 J.K. Winn, `The Secession of the Successful: The Rise of Amazon as Private Global
Consumer Protection Regulator' (2016) 58 Arizona Law Rev. 193; S. Grundmann and
P. Hacker, `Digital Technology as a Challenge to European Contract Law ± From the
Existing to the Future Architecture' (2017) European Rev. of Contract Law
(forthcoming), at SSRN: .
44 S.P. Borgatti et al., Analyzing Social Networks (2018, 2nd edn.) 275.
Figure 2. Bipartite (or affiliation) network
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
A bipartite network may be analysed either as a whole, or by focusing on
the network induced (or projected) on one set of the nodes.
45
For example, in
the above TL network, it is possible to study the bipartite network of codes
and firms as a whole, or alternatively consider the induced networks: either
the induced TL codes network, where two codes are connected by an edge if
at least one firm is a member of both, or the induced firms'network, where
two firms are connected if they are linked to the same code. When the focus
is on the interaction between TL regimes the focus should be on the induced
network of codes. Using the above example, the induced networks have the
following form (Figure 2): in the induced network of codes, codes A and B,
and A and C are linked because they have common firms associated with
them; but codes B and C are not linked because they have no firm in
common. In the induced network of firms, firms A and B, and A and C are
linked because they are linked to common codes, but firms' B and C are not
linked because they have no code in common (Figure 3).
S146
45 M.E.J. Newman, `The Structure and Function of Complex Networks' (2003) 45 SIAM
Rev. 167; M. Latapy et al., `Basic Notions for the Analysis of Large Two-Mode
Networks' (2008) 30 Social Networks 31.
Figure 3. Induced networks
Induced Network of Codes
Induced Network of Firms
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
(a) Network politics: direct institutional links.
Law needs politics and deliberative structures to gain legitimacy. In a
network structure, this political dynamic emerges through the interaction
between the different regimes. One way to capture this interaction is to
consider the institutional links between the organizations that are responsible
for administering the standards. Such links can take various forms. We
distinguish between four types of institutional connections: governance,
partnership, compliance cooperation, and membership. These links con-
stitute yet another form of external recognition, operating alongside the
cross-referencing.
·Governance covers participation in the founding of other schemes or in
their governance bodies. For example, Fair Trade (FI) is a co-founder of
ISEAL
46
and is represented on the board of directors of ISEAL.
47
·Partnership covers various forms of collaboration. For example, Global
Reporting Initiative (GRI) is an ally of the Carbon Disclosure Project
(CDP),
48
and the Forest Stewardship Council (FSC) maintains a liaison
with the International Organization for Standardization (ISO).
49
·Compliance cooperation covers schemes that provide traceability or
compliance services to other schemes. For example, the UTZ Code of
Conduct for the tea, coffee, and cocoa sectors provides traceability
services to Roundtable on Sustainable Palm Oil (RSPO).
50
·Membership covers schemes that are members
51
of other schemes. For
example, Textile Exchange (TE) is a member of Better Cotton Initiative
(BCI),
52
and the Union for Ethical Bio-Trade (UEBT) is a full member of
ISEAL.
53
The political interactions between regimes can be captured also through
other mappings. One way is to map the affiliation network of regime
directors. In this mapping, we consider the links that are formed between
regimes that have directors in common.
54
S147
46 .
47 .
48 .
49 .
50 .
51 UNGC uses the term `participants' instead of `members.' Many codes distinguish
between membership and certification. Membership reflects participation in the
governance of the code as an organization; certification is provided to organizations
that meet the requirements of the standard promulgated by the relevant CSR code. In
some cases, the two categories overlap. In this analysis, we focused on membership,
whereas in the analysis of the affiliation network we focused on certification (or
membership that is equivalent in substance to certification).
52 .org/wp-content/upl oads/2015/09/2016060 6_BCI-Members-List -
Jun.xls>.
53 .
54 M. Barzuza and Q. Curtis, `Board Interlocks and Corporate Governance' (2014) 39
Delaware J. of Corporate Law 669; E.M. Heemskerk et al., `Where Is the Global
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
(b) Joint ethos
Common concepts that indirectly link the various codes through joint
reference provide a further manifestation of the network. Formally, such
structures are realized in a bipartite subnetwork, where the first set includes
a list of the distinct codes and the second includes a list of concepts.
Examples are such notions as sustainability, free trade, health, poverty, and
so on.
4. Networked authority as emergent property: mechanisms
To understand how the network structure can facilitate the emergence of a
new type of transnational authority, we must delve deeper into the multi-
layered dynamics of the network. Our thesis is that the legal authority of the
regimes that are part of the network is an emergent property, which is
crystallized only when the network exceeds certain structural thresholds. A
key aspect of this evolutionary process is the recursive process of external
recognition, which is realized, primarily, at the layer of cross-references
between TL codes. The process of external recognition serves two functions.
First it provides the network with a legal grounding. Any cross-reference
between the codes constitutes an implicit recognition of the legal validity of
the referenced text. Although this type of cyclical cross-referencing does not
resolve the grounding paradox from a logical perspective, it transforms the
socio-legal reality in a way that makes it tolerable. To the extent that this
network of cross-references is sufficiently dense, and exhibits multiple
cycles of validation, it helps create a social convention that makes the idea of
an autonomous transnational legal authority (detached from the political
apparatus of the state system) both intelligible and acceptable.
55
Second, the
recursive structure of cross references also serves as a boundary-mapping
mechanism: it designates which codes, out of our observed universe of
`legal-like' instruments, possess the normative quality of validity, that is, it
designates a subcomponent within the total network (a constitutional
ensemble) which has a constitutional capacity.
As noted above, the emergence of authority depends on the existence of
intensive interactions also in the other layers of the network, that is, in the
layer of indirect affiliations, of institutional connections, and of joint
concepts. These layers contribute to the emergence of authority in various
ways. First, the direct ties between the TL institutions constitute another
S148
Corporate Elite? A Large-Scale Network Study of Local and Nonlocal Interlocking
Directorates' (2016) 2 Sociologica 1 (arXiv:1604.04722 [cs.SI]).
55 This type of cross-referencing is relatively static; its structure changes only when the
texts are revised, but it is likely that the communicative interactions that occur within
and across organizations that are part of the network also feature such cross-
referencing. But it is much more difficult to study these communicative interactions
empirically.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
form of external recognition, which supports the implicit forms of textual
recognition discussed above.
56
A further condition for the emergence of
legal authority is that law should have a discernible effect on social life. We
should not confuse effect with efficacy, however. The autonomy of law is
prese rved i f its no rms ar e sing led ou t as ind epen dent it ems fo r
communication, even if conformity to primary norms is not fully realized.
57
Our thesis is that the network structure facilitates such effect even in the
absence of state-based enforcement mechanisms. In particular, we argue that
the institutional ties between the TL bodies (for example, CSR organiza-
tions), whether in the form of direct links or of cross-affiliations involving
firms and codes, create a synergistic effect that enhances the regulatory
efficacy of the network as a whole by developing positive externalities
between the enforcement mechanisms of the various regimes.
58
This syner-
gistic effect is critical for the capacity of the network to realize its normative
potential.
The network architecture also creates a socio-political stratum through
which the legal regimes that form the network can gain political legitimacy.
From a pr oced ural p erspe ctiv e, the n etwo rk arch itec ture p rovi des
opportunities for cross-monitoring and exchange of ideas, which can provide
an alternative to the deliberative structures associated with state politics. The
topological analysis of a particular transnational network (of the kind we
conduct below) can assess only the deliberative potential of a particular
network; to determine whether this potential is realized, it is necessary to
look beyond the structure of the network into the communication flows that
run through that structure.
The emergence of a joint ethos through cross-referencing can act as a
substantive legitimizing mechanism. It can guide the network and provide it
with a common ground. With regard to CSR schemes, for example, the idea
of sustainability operates as a common purpose of this type, which through
its common invocation across the network provides legitimacy to the
constitutional ensemble as a whole, and consequently to the legitimacy of
each of its constituent regimes. With regard to global health governance, the
underlying ethos is the notion of health.
59
Mutual engagement with the
concept of sustainability or health through the ensemble constitutes a
positive normative externality, which enhances the regulatory power and
legitimacy of the network as a whole.
S149
56 For a study of this phenomenon, see O. Perez et al., `Governance through Global
Networks and Corporate Signaling' (2018) Bar-Ilan Working Paper.
57 B.Z. Tamanaha, `Socio-Legal Positivism and a General Jurisprudence' (2001) 21
Oxford J. of Legal Studies 1.
58 For a more detailed explanation of the synergy effect, see Perez et al., op. cit., n. 56.
59 S. Rushton and O. Williams (eds.), Partnerships and Foundations in Global Health
Governance (2011); A.F. Cooper et al. (eds.), Governing Global Health: Challenge,
Response, Innovation (2016).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
There are some affinities between the framework we propose and Gunther
Teubner's work on networks. In his article, `Coincidentia Oppositorum:
Hybrid Networks Beyond Contract and Organisation',
60
Teubner made an
attempt to develop a general concept of connected contracts. He proposed
three conditions that jointly `constitute the surplus value of the dual
constitution of the connected contracts as opposed to a simple mass of
disconnected bilateral contracts within a market':
61
1. Reciprocal reference of bilateral contracts to one another, either found
wit hi n th e do cu men t an d/ or d is ti lle d fr om c on tr act ua l pr ac ti ce
(`multilaterality');
2. a contractual reference to the overall project of the connected contracts
(`relational purpose'); and
3. a close and significant co-operation relationship between the participants
within the multilateral relation (`economic unity').
There is strong affinity between Teubner's three-pronged criteria for con-
nected contracts (`multilaterality', `relational purpose', `economic unity')
and our model of networked constitutionalism. The difference lies, first, in
the fact that we are proposing to conceptualize the idea of transnational
authority as a network emergent property, whereas Teubner focused on the
more limited concept of `connected contracts', and second, in the fact that
our argument is embedded in the formal language of mathematical network
theory.
In his later work on the constitutional turn in transnational law, Teubner
seemed to abandon the idea of connected contracts. For example, he con-
cluded Constitutional Fragments: Societal Constitutionalism and Globaliza-
tion with a section entitled `Normative networks', but did not explore the
possibility that the authority of transnational regimes may co-emerge with
the network of which they are part. Instead, he focused on the problem of
inter-regime conflicts (which presupposes that the regimes acquire their
authority independently of the network)
62
and on the role played by
networks in resolving inter-regime disputes:
63
Networks are an institutional answer to rationality conflicts that result from the
differentiation and autonomization of systems, in our context of transnational
function regimes. Networks offer an institutional answer to conflicts of norms
by transforming these external contradictions into internal imperatives of the
network nodes which can be made situatively compatible with one another.
S150
60 Teubner, op. cit., n. 9.
61 id., p. 20.
62 Teubner, op. cit (2012), n. 2, p. 159.
63 id.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
III. NETWORK AUTHORITY IN THE CORPORATE SOCIAL
RESPONSIBILITY (CSR) DOMAIN
1. Method
To construct our sample of CSR schemes, we first created an initial list of
candidate schemes based on a review of the literature,
64
and expanded the
list through an Internet search. Most of the CSR schemes in our sample have
some sort of compliance structure, even if a relatively weak one.
65
For
example, to become a member of United Nations Global Compact (UNGC),
a firm must voluntarily pledge (among others) to operate responsibly, in
alignment with the UNGC principles,
66
and to report annually on its ongoing
efforts.
67
In the case of UNGC, the ex ante selection principle is relatively
weak (willingness of the firm to formally commit to UNGC); the ex post
compliance mechanism is also relatively weak, based on annual reports. SA
8000 has a different institutional structure: it requires firms that want to
demonstrate compliance with SA 8000 to undergo a process of certification
carried out by third-party auditors, and to commit to a process of continuing
third-party auditing.
68
GRI, which is also among the standards we cover, is
based on a self-declaration by the organization to the effect that it publishes
its sustainability reports in accordance to GRI principles, but it also includes
optional stricter forms of compliance through third-party auditing.
69
The
final network included 57 codes.
We collected the codes of conduct from the websites of the schemes
between November 2017 and February 2018. CSR bodies use various terms
to refer to their standards, including standards (Bonsucro), principles (WEP),
criteria (GSTC), code of practices (RJC), and position statements (ICMM).
S151
64 P. Hohnen, `Overview of Selected Initiatives and Instruments Relevant to Corporate
Social Responsibility' in Annual Report on the OECD Guidelines for Multinational
Enterprises 2008 Employment and Industrial Relations, ed. OECD (2009) 235; K.
McKague and W. Cragg, Compendium of Ethics Codes and Instruments of Corporate
Responsibility (2003); K.W. Abbott and D. Snidal, `The Governance Triangle:
Regulatory Standards Institutions and the Shadow of the State' in The Politics of
Global Regulation, eds. W. Mattli and N. Woods (2009) 44; OECD, Annual Report
on the OECD Guidelines for Multinational Enterprises 2008 (2009).
65 The only exception is ISO 26000, which has no certification option. Although in most
of the CSR schemes the signatories are firms and not governments, we also included
some key schemes in which the signatories are governments (the Kimberley Process
Certification Scheme, OECD Guidelines for Multinational Enterprises (2011) and
the Extractive Industries Transparency Initiative (EITI)).
66 See .
67 See .
68 `Certification lasts for three years, with a series of required surveillance audits
throu ghou t the t hree y ear pe riod ', see < http ://w ww. saas accr edit atio n.or g/
certification>.
69 See lreporting. org/how-you -should-rep ort/in-acco rdance-crit eria/
pages/default.aspx>.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
For some CSR schemes, we collected more than one standard, because they
have several codes for different sectors, types of products, and types of firms
(like ASC and FI). We also collected `constitutional' standards that refer to
the structure of the organization or to the revisions procedures of first-order
standards. In the citation analysis we treated the cases of multiple codes
associated with a single scheme as if they represented a single unified code
(which constitutes a single node in the network analysis). The complete list
of the codes is included in Annex A.
We checked the citations within the CSR standards by searching the texts
for the names of CSR schemes (including abbreviations, like GRI),
70
and
their website addresses as well. We analysed each citation to verify that it
indeed refers to a CSR scheme in our sample. We did not record references
to legal texts (for instance, international treaties) that were not in our
sample.
71
Based on this analysis, we created a citation matrix, which we
explored with the aid of the `Gephi' programme for social network analysis.
We adopted an inclusive approach to the citation analysis, based on the
idea that implicit in any reference is recognition of the validity of the cited
code. We developed the following taxonomy of citation types:
·Incorporation: Compliance with the criteria of the referenced code meets
a requirement/criterion in the citing code. Although rare, this is the
strongest citation type.
Example:
For ASC, chain of custody is certified through application of the MSC chain of
custody system, to which ASC CoC requirements have been added as a scope,
to ASC certified aquaculture products. Only products that originate in ASC
certified farms and are sold through an MSC certified chain of custody (with
ASC CoC scope) are eligible to carry the ASC ecolabel.
72
·Partial grounding: The citing code draws in some way on the content of
the cited code to complete its own normative content (including general
references at the end of the citing code).
Example 1:
Living wage: hourly wage paid (when calculated as a function of a standard
working month) meets basic needs of workers and their families and to provide
some discretionary income. (Adapted from Fair Wear Foundation).
73
S152
70 RBA was searched also by its previous name, EICC (Electronic Industry Citizenship
Coalition), and FI was searched also by its former abbreviations, FLO (Fairtrade
Labelling Organization International). The complete list of the texts in our sample is
available in the SSRN version of the article, at
papers.cfm?abstract_id=3180540> (Appendix B).
71 For example, we did not include in the analysis the citation of OHSAS 18001 in RBA
standard because OHSAS 18001is not in our sample.
72 ASC Tilapia Standard ± version 1.1 April 2017, p. 6. See also, TE, `Textile Exchange
Accepted Equivalent Standards', version 1 (effective: 5 August 2014) 2±4.
73 UBET Ethical BioTrade Standard, from 11.4.2012, 11.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Example 2:
Recog nized m anage ment sy stems s uch as IS O 14001 an d the Ec o
Management and Audit System (EMAS) were used as references in preparing
the Code and may be a useful source of additional information.
74
·Textual indications of collaboration: The text includes references to
institutional collaboration between the organizations behind the citing and
cited codes.
Example:
The Global Compact collaborates with other frameworks ± for example, the
Global Reporting Initiative (GRI), CDP and ISO 26000 ± to ensure that
standards are aligned and that meeting the requirements of one framework
helps to comply with the others.
75
·Acknowledgment: This residual category includes all the citations that do
not fall under the previous categories. The citation is commonly used to
add some necessary background information.
Example 1:
The Reporting Guidance on the 10th Principle against Corruption equips
business with a practical means to report on anti-corruption policies and
actions comprehensively and effectively. It includes a broad set of reporting
elements and is rooted in existing practice, including indicators of initiatives
such as PACI, FTSE4Good, Transparency International, the Global Reporting
Initiative and the International Corporate Governance Network.
76
Example 2:
Another example is the global sustainability reporting framework developed
by the Global Reporting Initiative (GRI), which sets out principles and
indicators that organizations can use to measure and report their economic,
environmental and social performance. In 2008±09, the GRI worked with the
International Finance Corporation (IFC) on a research and consultation project
aimed at addressing the gap between gender and sustainability reporting
[. . .].
77
For the purpose of the network analysis we used `Gephi' software, and
developed algorithms in `Python 3'.
2. Results
We found that the CSR codes formed a well-connected citation network: 53
of 57 codes (92.98 per cent) were part of one network; that is, they either
cited at least one other code , or were cited by another code. Only IIP, ICTI,
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74 RBA code of conduct ± version 6.0 2018, 8.
75 UNGC, Guide To Corporate Sustainability: Shaping a Sustainable Future (2014) 40.
76 id., p. 26.
77 Un Women/UNGP, `Women's Empowerment Principles' (2011, 2nd edn.) 14, n. 3.
For another example, see Fairtrade Textile Standard, version 1.1 (22.03.2016) 18.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
LBG, and CWP are isolated from the network. The average degree of the
network is 4.439, which means that on average each code is connected to
others by 4.439 edges.
78
The average path length is 2.86, which means that
we can arrive from one code to anther in about only three steps on average
(this applies only to codes where there is a possible path, given the graph
directionality).
79
The network of CSR codes is shown in Figure 4.
S154
78 Average degree is calculated as the sum of In-Degree and Out-Degree measures of
each node, divided by twice the number of nodes.
79 Gephi's average path length is a sum of all the possible shortest paths' length between
each two nodes (considering the edges' direction), divided by the number of paths.
For example, in a network of 4 nodes, connected by the edges: A!B, B!C, B!D,
D!B, the average path length is 1.429: the sum of the lengths all the shortest paths
(10), divided by their number (7).
Figure 4. Network of CSR codes
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Analysing the network using the Gephi clustering algorithm
80
revealed
that it can be divided into five clusters, represented by different colors in the
graph. For example, RC Global, Bonsucro, ISO 14001, PEFC, and PT are all
part of a single cluster. The size of the nodes in the figure is proportional to
their `betweenness centrality,' a measure of the number of shortest paths that
pass through a particular code and reflect its contribution to network
connectivity. ISEAL, ISO 26000, UNGC, GRI, FI, ICMM, AWS, CERES,
and RJC play a critical role in network connectivity, allowing information to
flow between the different nodes.
We found that the network includes 1,538,060 cycles linking the nodes. A
cycle is a sequence of nodes in which each node cites the next one in the
cycle, and the `last' node cites the `first' (the denotation of first and last is,
naturally, arbitrary). Each cycle differs in the number and identity of its
nodes (thus, A!B!C is different from A!B!C!D). We omitted trivial
cycles formed by s elf-citatio n (A!A) and delet ed duplicate cy cles
(A!B!A is the same as B!A!B). The four longest cycles in the
network include 28 nodes, and the 27 shortest cycles include 2 nodes that
cite each other. For example, one of the 28-node cycle consists of ASC,
AWS, BONSUCRO, BSCI, CDP, CERES, ETI, FI, FSC, GEO, GGP, GOTS,
GRI, ICMM, ISEAL, ISO 26000, MSC, OECD-ME, OEKO, PEFC, RBA,
RSPO, RTRS, TE, UEBT, UNEP PRI, UNGC, and UTZ. Some of the 2-node
cycles are: ASC and MSC, AWS and ICMM, CDP and CERES, GOTS and
TE, UNGC and WEP, ISEAL and ISO 2600, KPCS and WDC, RSPO and
UTZ.
Figure 5 shows an example of a `truth-teller' validation cycle with 28
codes (the size of the nodes reflects their betweenness centrality measure).
From the point of view of their length, the cycles follow a normal
distribution. The most common cycle length in the network is 17 (there are
195,959 cycles with this length) (Figure 6).
Codes vary in the number of cycles they participate in. There are several
codes that participate in much more cycles than others. For example, ISEAL
takes part in 96.31 per cent of all the cycles in the network, and GRI, ICMM,
and AWS participate in more than 90 per cent of the cycles. By contrast,
ETP participate in only 3.32 per cent of the cycles: 51,045 cycles. This
variance can be interpreted in several ways. First, we can view it as an
indication of the boundary of the constitutional ensemble. Codes which lie at
the periphery (for example, IIP, ICTI, LBG, and CWP) may be viewed as
external to the ensemble. Another interpretation may view this variance as a
measure of the contribution of different codes to the validity of the network
as a whole.
81
S155
80 V. Blondel et al., `Fast Unfolding of Communities in Large Networks' (2008) J. of
Statistical Mechanics: Theory and Experiment P10008.
81 Another interpretation may attribute different validity strengths to codes according to
this measure.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Two thirds (38 of the 57 codes) participate in at least one cycle. Of these
38, 36 codes form a giant, strongly-connected component (GSCC), in which
there is a directed path joining any pair of nodes.
82
The remaining two codes
(KPCS, WDC) form a second minor, strongly-connected group separate
from the GSCC. The large number of internal cycles and the large per-
centage of codes that participate in the cycles facilitate the kind of external
recognition process we described above.
We also examined the existence of non-cyclic `chain' support structures.
For example, in the directed graph shown in Figure 7, node 8 is supported by 5
nodes (directly by node 4, and indirectly by nodes 1, 2, 3, and 7), and
participates in one cycle (nodes 3-4-8, the single cycle in this graph). Node 5
is not part of any cycle, but is supported by 6 other nodes (1, 2, 3, 4, 7, and 8).
S156
Figure 5. 28-code truth-teller validation cycle
82 R. Pastor-Satorras et al., `Epidemic Processes in Complex Networks' (2015) 87
Reviews of Modern Physics 925.
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S157
Figure 6. Distribution of cycle lengths
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The result of the analysis of cycles and chain structures is presented in
Figure 8.
The blue points in Figure 8 represent the percentage of cycles that each
code participates in. For example, ETP participates in 51,045 (3.32 per cent)
of the cycles, and ISEAL in 96.31 per cent. WDC and KPCS participate in
S158
Figure 7. Chain support structures
Figure 8. Cycle and chain structure analysis
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
only 1 cycle each, therefore they are close to 0 per cent in the figure. The red
points represent the percentage of codes (of the overall network) that support
a particular code through a chain structure (we summed the number of
supporting codes across all the distinct chains). All the codes from WRC to
ISEAL (clockwise inclusive), which comprise 49 of the network 57 codes
(85.96 per cent of the network) are supported by approximately 70 per cent
of the network's codes through a chain structure. The codes between WDC
and ISEAL are part of two groups of strongly-connected components: the
main strongly-connected component consists of 36 codes between ETP and
ISEAL, and a second, minor group consists of two codes: WDC and KPCS.
Note that these 38 codes participate in at least one cycle. The 11 codes
between WRC and ISO14000 (clockwise, inclusive) that do not participate in
any cycle, receive extensive support from other codes through the chain
structure. There are 8 codes: UNEP-PSI, RSB, PT, LBG, IIP, IiI, ICTI, and
CWP that do not participate in any cycle and are not supported by chains.
Nevertheless, they are not completely disconnected from the network: IiI,
PT, RSB, and UNEP-PSI contribute citations to others, but are not cited.
ICTI, IIP, LBG, and CWP are completely isolated: they are not cited by any
code in the network and do not cite any.
There is a strong correlation between the participation of codes in network
cycles and their betweenness centrality. In general, the more a code
participates in network cycles, the higher its betweenness centrality measure
(Figure 9).
Codes differ in the number of citations they receive from and distribute to
others (Figure 10). Codes that tend to receive more citations than others can
S159
Figure 9. Correlation between code participation in network cycles and
betweenness centrality
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
be seen as grounds for authority. Those that distribute a great many citations
may play an integrative role by bringing together knowledge from various
sources.
We found that ISEAL was the most popular code (20 inbound references)
and ISO 26000 had the largest number of outbound references (28 codes).
Note that the lists are not symmetrical. Only ISEAL and GRI appear at the
top of both indices.
CONCLUSION
Our article contributes to the debate regarding transnational constitu-
tionalism by developing the idea of networked constitutionalism, which
conceptualizes transnational legal authority as an emergent, network-based
property. This account reflects a radical departure from Kelsen's pyramidal
normative order. The authority of the network nodes (the distinct codes or
regimes) cannot be traced back to a single institution, regime, or code,
whether within the network or outside it. Rather, the legal authority of each
regime crystallizes as the network exceeds certain thresholds of density and
intensity. The concept of networked constitutionalism is also distinct from
the notion of legal pluralism, which has traditionally been more concerned
with the interaction between the codes than with the sources of their
authority. The empirical portion of the article provides tentative support for
our model by demonstrating the intensity of the cross-recognition cycles
within our sample CSR network.
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Figure 10. Codes with the largest number of inbound and outbound
citations
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
The analysis conducted in this article forms only a first step in the full
elaboration of the concept of networked constitutionalism. Indeed, there
remain many open questions that can be explored drawing on the network
perspective we propose. First, what are the mechanisms that drive the
evolution of a network with constitutional features?
83
Second, how common
are such constitutional ensembles? Are there examples beyond the CSR
domain? Third, as we noted in the theoretical section, the capacity of a
network to realize its normative potential depends on certain thresholds that
need to be exhibited across several layers. A more complete empirical
analysis would need to examine all these layers concurrently. Fourth, struc-
tural analysis is not enough: it is necessary to explore also the communi-
cative dynamics of the network, which is a much more difficult task. A final
question concerns the question of steering: is it possible to control and direct
the evolutionary path of such systems using various institutional and
regulatory mechanisms?
S161
Annexe A. Code names and initials
Code Name Code Initials
1 4C Association 4C
2 Aquaculture Stewardship Council ASC
3 The Alliance for Water Stewardship AWS
4 Better Cotton Initiative BCI
5 Bonsucro BONSUCRO
6 Business Social Compliance Initiative BSCI
7 Carbon Disclosure Project CDP
8 The 21st Century Corporation: The Ceres Roadmap CERES
for Sustainability
9 ClimateWise Principles CWP
10 The Extractive Industries Transparency Initiative EITI
11 Eco-Management and Audit Scheme EMAS
12 Equator Principles EP
13 Ethical Trading Initiative ETI
14 Ethical Tea Partnership ETP
15 Fairtrade International FI
16 Fair Labor Association FLA
17 Forest Stewardship Council FSC
18 Fair Wear Foundation FWF
19 The Golf Environment GEO
20 The Greenhouse Gas Protocol GGP
21 The Global Organic Textile Standard GOTS
22 Global Reporting Initiative GRI
23 Global Sustainable Tourism Council GSTC
24 GoodWeave International GW
continued
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
S162
Annexe A. Code names and initials (continued)
Code Name Code Initials
25 International Council on Mining and Metals ICMM
26 International Council of Toy Industries ICTI
27 Investing in Integrity IiI
28 investors in people IIP
29 International Social and Environmental Accreditation and ISEAL
Labelling Alliance
30 International Standard 14001 ± Environmental Management ISO 14001
System
31 International Standard 26000 ± Social Responsibility ISO 26000
32 Kimberley Process Certificate Scheme KPCS
33 London Benchmarking Group LBG
34 Marine Stewardship Council MSC
35 OECD Guidelines for Multinational Enterprises OECD-ME
36 OEKO-TEX OEKO
37 The Programme for the Endorsement of Forest Certification PEFC
38 ProTerra Foundation PT
39 Responsible Business Alliance RBA
40 Responsible Care Global Charter RC Global
41 Responsible Jewellery Council RJC
42 Roundtable on Sustainable Biomaterials RSB
43 Roundtable on Sustainable Palm Oil RSPO
44 Round Table Responsible Soy Association RTRS
45 Social Accountability 8000 SA8000
46 Textile Exchange TE
47 Union for Ethical BioTrade UEBT
48 United Nations Environment Programme ± Finance Initiative UNEP FI
49 United Nations Environment Programme ± Finance Initiative ± UNEP PRI
Principles for Responsible Investment
50 United Nations Environment Programme ± Finance Initiative ± UNEP PSI
Principles for Sustainable Insurance
51 United Nations Global Compact UNGC
52 UTZ UTZ
53 Voluntary Principles on Security and Human Rights VPI
54 World Diamond Council WDC
55 Women's Empowerment Principles WEP
56 Worldwide Responsible Accredited Production WRAP
57 Worker Rights Consortium WRC
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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