Contemporary Perspectives on Justice (Zentrum und Peripherie, Band 6)

Wenzel Matiaske, Sérgio Costa, Hauke Brunkhorst (eds.): Contemporary Perspectives on Justice Zentrum und Peripherie, hrsg. von Hauke Brunkhorst, Sérgio Costa, Wenzel Matiaske, Marcelo Neves, Band 6 ISBN 978-3-86618-456-5, ISBN 978-3-86618-556-2 (e-book pdf), Rainer Hampp Verlag, München u. Mering 2010, 275 S., € 27.80

Justice is a fundamental category in the social field as well as in social sciences. However, public and also scientific debates take place in narrow thematic boundaries. But in a world society that has been promoted by globalisation processes, the base of the traditional paradigm of development policy was shattered, prolonging the idea of the welfare state with respect to redistribution in the European post-war era along the northsouth axis. The successes and failures of global economy have introduced new players to the game and limited the manoeuvering room of the former team captains in terms of an emphatic distribution policy. At the same time, new social inequalities arise in rich and in poor economies, which are not restricted to the material dimension alone. It is no longer solely about poverty and wealth or development and underdevelopment, but also about crossing ethnical, cultural and social barriers of participation. At the same time this constellation is a challenge for the disciplines of social sciences. The often requested interdisciplinarity, however, does not come about because there is a need, but rather requires occasions. This volume compiles the contributions of authors rooted in (social-) philosophy, sociology, political science and economics. Key words:

Critical Theory, Global Ethics, International Law, Socio-Economics

Prof. Dr. Wenzel Matiaske, Business Administration, Helmut-SchmidtUniversity Hamburg and German Institute of Economic Research/SocioEconomic Panel Study (DIW/SOEP) Berlin. Prof. Dr. Sérgio Costa, Sociology, Freie Universität Berlin and CEBRAP Centro Brasileiro de Análise e Planejamento. Prof. Dr. Hauke Brunkhorst, Sociology, University of Flensburg and The New School for Social Research New York.

Zentrum und Peripherie herausgegeben von Hauke Brunkhorst, Sérgio Costa, Wenzel Matiaske, Marcelo Neves

Band 6

Wenzel Matiaske Sérgio Costa Hauke Brunkhorst (Eds.)

Contemporary Perspectives on Justice

Rainer Hampp Verlag

München, Mering 2010

Bibliographic information published by the Deutsche Nationalbibliothek Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

ISBN 978-3-86618-456-5 (print) ISBN 978-3-86618-556-2 (e-book) Peripherie und Zentrum: ISSN 1614-6360 DOI 10.1688/9783866185562 First published 2010 © 2010

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Editorial Contemporary Perspectives on Justice Wenzel Matiaske & Sérgio Costa & Hauke Brunkhorst

Justice is a fundamental category in the social field as well as in social sciences. However, public and also scientific debates take place in narrow thematic boundaries. On the one hand, this debate is still held within the limiting concept of the nation-state, yet it is focused in the distinguished discourses of social sciences’ sub-disciplines. Even though this thematic narrowing may be justified – e.g. because distribution problems are linked to specific regulations of the nation-states and because the disciplinary focusing of the discourse leads to more conceptual clarity and promotes the gain of specific empirical knowledge – they do not prove to be adequate to contemporary problems of justice. From today’s viewpoint, the limitation to the nation-state was, in general, certainly no appropriate frame to address justice. But in a world society that has been promoted by globalisation processes, also the base of the traditional paradigm of development policy was shattered, prolonging the idea of the welfare state with respect to redistribution in the European post-war era along the north-south axis. The successes and failures of global economy have introduced new players to the game and limited the manoeuvering room of the former team captains in terms of an emphatic distribution policy. At the same time, new social inequalities arise in rich and in poor economies, which are not restricted to the material dimension alone. It is no longer solely about poverty and wealth or development and underdevelopment, but also about crossing ethnical, cultural and social barriers of participation. At the same time this constellation is a challenge for the disciplines of social sciences. The complexity of the problems should promote cooperation - or at least a discussion - that crosses disciplinary boundaries. The often requested interdisciplinarity, however, does not come about because there is a need, but rather requires occasions. The “New Perspectives on Justice” conference, of which contributions and other articles are compiled in this volume, therefore addresses authors rooted in (social-) philosophy, sociology, political science and economics. In his article “Two Dimensions of Global Justice”, Bernd Ladwig elicits the problem of narrowness when focusing on the nation state in the debate on justice against the background of the challenge of a universal egalitarianism, whereas Hauke Brunkhorst puts the myth of the state up for discussion. Gerhard Hauck poses the question, to which extent the fragile link between redistribution and recognition can endure in a global economy. From the systems theory perspective

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Wenzel Matiaske & Sérgio Costa & Hauke Brunkhorst

on the topic of justice, Thore Prien reconstructs the discourse of the Frankfurt School. Regina Kreide elucidates the connection between Global Governance and Human Rights. Justice from the perspective of different welfare state regimes is the subject of Christian Bender’s contribution. Barbara Fritz discusses the problem with a view to economic inclusion and exclusion in Latin-American states. The legal aspects of exploitation in globalised modernity are put up for discussion by Susan Marks. Jana Rieckmann, Ali Sungur and Sophie Wulk elicit in their contribution on FRONTEX the question of integration in the context of the European Union. Anne Reichold illustrates justice and gender relations in the family from the viewpoint of social philosophy. Kurt April, Amanda April and Eddie Blass discuss the concept of diversity in the European context and distinguish their perspective from the hegemonic AngloAmerican discourse. Peter Imbusch refers back to the elites with regard to corporate social responsibility and corporate citizenship in the context of globalisation. In her contribution, Christine Gröneweg highlights the discussion around corporate social responsibility and points out connections to Christian social ethics, which are anchored in the German tradition of business economics in particular. Wenzel Matiaske outlines the classical positions of social exchange theory in sociology and links them with contemporary institutional economics. Last but not least, we would like to thank the authors for their contributions, the conference delegates for exciting discussions and the DAAD as well as the Schleswig-Holstein Ministry of Science, Economic Affairs and Transport for their support.

Contents Editorial – Contemporary Perspectives on Justice ................................................. I Wenzel Matiaske & Sérgio Costa & Hauke Brunkhorst Two Dimensions of Global Justice ........................................................................ 1 Bernd Ladwig Beyond the Myth of the State .............................................................................. 17 Hauke Brunkhorst Redistribution and Recognition – Locally and Globally ..................................... 25 Gerhard Hauck Under the Spell of Society. Systems Theoretical Perspectives on Justice ........... 41 Thore Prien Transnational Governance and Human Rights: The Obligations of Private Actors in the Global Context ................................................................... 69 Regina Kreide Concepts of Justice in Different Types of Welfare Regimes ............................... 93 Christiane Bender Economic Mechanisms of Inclusion and Exclusion in Latin America .............. 115 Barbara Fritz Exploitation as an International Legal Concept ................................................. 137 Susan Marks The European External Border Regime ............................................................. 151 Jana Rieckmann & Ali Sungur & Sophie Wulk Justice and Gender in the Family ...................................................................... 167 Anne Reichold Ethical Leadership Required to Lead a Diverse New Europe ........................... 183 Kurt April & Eddie Blass Contradictions of Social Responsibility – German Business Elites and Globalization .............................................................................................. 203 Peter Imbusch About Breaking the Bread: Corporate Social Responsibility in the Light of Catholic Social Teaching .............................................................................. 227 Christine Gröneweg Exchange: A Baseline Model for Socio-Economics .......................................... 245 Wenzel Matiaske Authors .............................................................................................................. 267

Two Dimensions of Global Justice1 Bernd Ladwig

Egalitarians have problems with the society of states. Its borders are among the factors that distribute the person’s prospects unequally from the beginning of their lives. This stands in tension to the basic principle of egalitarianism that, from the moral point of view, it is equally important for each human life that it can flourish. Egalitarians therefore have good reasons to be cosmopolitans. According to cosmopolitanism, a just distribution is directly owed to individual human beings. But nevertheless, most egalitarians explicitly or implicitly defend the plurality of states to a certain degree (see Kymlicka, 2001; a possible exception is Gosepath, 2001). Even if they do not totally reject the idea of global justice (like Nagel, 2005), they are convinced that at least some of its duties are directly owed to collective entities such as states, nations, or peoples. We can call them “internationalists” in this regard. In this article I will explain the essential features of a theory of global justice that integrates both perspectives, but within a frame that is cosmopolitan at the elementary level of justification (1). Adopting that frame is compatible with a conditional justification of states which are basically just. The justification can rest on an argument I call “the argument from moral path dependency”. I will follow its normative consequences into the fields of a justly ordered community of legitimate states (3) and of cosmopolitan principles of distributive justice including claims to open borders and freedom of settlement (4). For reasons of space, my argument will remain entirely within the realm of ideal theory. Such a theory is exclusively concerned with the moral justification of rules and principles. It methodologically supposes that there is a sufficient degree of compliance to any valid moral norms.

1

Distributive justice and moral individualism

Claims of justice call for impartial justification. The conception of impartial justification I favour has three elements: It is universalist, egalitarian, and individualist. 1

For helpful comments on an earlier version I have to thank Mattias Iser, Tamara Jugov, Georg Lohmann, David Strecker, and the participants of the following courses and conferences: “The Diversity of Human Rights” at the InterUniversityCentre Dubrovnic, “Social Justice” at the Higher School of Economics St. Petersburg, “Globale Gerechtigkeit und soziale Menschenrechte” at Bildungsstätte Schloss Wendgräben, Colloqium “Rechtliche Grundlagen der Politik” at the Freie Universität Berlin, and the EU Research Training Network Applied Global Justice, conference on “Social Justice”, Zürich.

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It holds that all individual human beings are entitled to equal respect and concern (Dworkin, 1990: 299ff.). This does not mean that any morally relevant good has to be distributed equally. But it has to be distributed in accordance with the equal moral worth of each individual affected. An unequal distribution of a morally relevant good is just if and only if it can be impartially justified. And if there is no such justification, an egalitarian solution follows by default. The burdens of proof rest on the defenders of an unequal distribution (see Gosepath, 2004: 200ff.). A prominent and, as far as I can see, basically sound principle of distributive justice gives room for inequalities as long as they are the results of free decisions and actions and not the outcome of circumstances beyond the control of the person. To make the point somewhat more precise: A person is justified in complaining about an injustice against her if (a) she is worse off with regard to at least one morally relevant interest she has, if (b) the disadvantage cannot reasonably be assigned to the domain of her own personal responsibility, if (c) others could have prevented the disadvantage or are in a position to correct it, or to compensate for it, through individual or collective action, including serious efforts to built or improve institutions, and if (d) they can make such an effort without seriously risking a harm that is morally comparable to the disadvantage at stake. This principle is, as Ronald Dworkin puts it, both “ambition-sensitive” and “endowment-insensitive”. It is designed to equalize the standing of persons instead of letting them suffer from brute bad luck (Dworkin, 2002; Cohen, 1989; Roemer, 1996; Ladwig, 2000). Now obviously, for an average child born in Ethiopia it is brute bad luck not to be born in a part of the western world instead. Long before the child can even begin to take responsibility for decisions and actions many parameters of her life are fixed, and mostly to her disadvantage, in absolute as well as in comparative terms. She faces a high risk of dying young, of remaining illiterate, and especially as a female Ethiopian, of becoming the victim of sexist violence and genital mutilation. What is more, the existence of state barriers makes it highly unlikely that she will ever reach one of the wealthier, and less repressive, states in the world. No such state accepts refugees simply because they are fleeing an initial situation of inequality and poverty or even sexual repression. The state system with its barriers and armed guards stands between the child and an access to advantages she might otherwise have. So, the advantages turn out to be undeserved privileges, quite similar to those of feudalism which also let prospects of life depend on a person’s place of birth (Carens, 1995). The child faces all these disadvantages without having made any avoidable mistake. They are part of an overall situation which we could in principle modify through collective action and institution-building so that the disadvantage would not occur. What impartial justification, no less binding for our Ethiopian child than for an average child born in Switzerland, can there be for the existence of such a state system? There can be no such justification, is the obvious answer. It is obvious, one might add, because my arguing up to this point has been totally individualistic. It has taken the existence of the state system into account, but only insofar as it

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stands in the way of a more equal distribution. It has not given this system any moral weight of its own. This is no accident: A universalist, egalitarian, and individualist conception of morality narrows the scope of possible defences of the state system from the beginning. Regarding normative individualism, we cannot take the existence of collective entities for granted. If they are morally justified at all, their justification stems from the entitlements of their individual members. Some states might be justifiable in that sense, as being in the enlightened self-interest of individuals or as providing a framework of their identity-formation. But whatever an individual might owe to the state of his birth, the state has no right to neglect the independent moral standing of the individual. With regard to universalism, a moral justification requires to include all persons affected, irrespective of their different social belongings. The drawing and defending of boundaries in the limited space of the earth affects mankind as a whole. Therefore, mankind as a whole has a stake in determining their lines as well as the degree to which they might be impermeable to outsiders. Finally, with respect to egalitarianism, our duties to justify moral claims cannot be viewed as concentric circles. Each person affected must be able to accept the justifying reasons as an equal. The difference between citizens and strangers is not relevant on the most elementary level of justification. It does not stand at the beginning of an impartial reasoning; it might at best be its outcome. Consequently, if we are allowed or even obliged to show some degree of partiality towards our fellow countrymen, our reasoning must satisfy a “second-orderimpartiality” (Barry, 1995: 226ff.). Being partial due to special political relationships must itself be universally acceptable at a logically higher level of impartiality. The “right to justification” (Forst, 1999) does not stop at the borders of nation states. Because borders take part in structuring the unequal distribution of goods and bads in the present world system, the burdens of proof rest on their defenders.

2

Four arguments in defence of the state system

Realism Let's have a short look at four possible defences of the present state system. A first defence is very simple; call it the realist's claim: If normative theorizing will not become quixotic, it has to take the existence of the state system as a starting point. Even beginning to reconstruct the given system from the moral point of view must miss the point of our real global problems. That, of course, is a way of blocking moral arguments at a very early stage. It also presents a distorted picture of reality. In the present world system, the principle of state sovereignty has come under pressure in many respects. In public international law there is a cosmopolitan tendency to recognize the individual as a subject of rights alongside the nation state (see Hailbronner, 1997).

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Many want an improved United Nations to gain more powers to act. The shape of the given state system is the subject of ongoing negotiations and struggles. International and supranational political entities like the European Union are obtaining more and more formal and informal competences. Global organizations like the WTO, the IMF, and the World Bank are performing global governance in central domains of policy formation. Of course, all this is not even the beginning of a disappearance of the entire state system. But it indicates that the distribution of political competences is itself a function of political struggle. It cannot serve as its uncontroversial starting point, as the realist’s claim suggests. That claim might best be reinterpreted so as to inform us about the main obstacles any strategy of transforming the present world system into a more just one would have to face. Connectedness A second attempt to defend the state system is based on an analogy with families. We are disposed to favour those with whom we feel most intimately connected. This is part of our common human nature. Our fellow countrymen are like extended kin to us. We are more motivated to share our possessions with those close to us than with total strangers (see Miller, 1995). Now, as in the former claim, there is some realism in this argument. But the analogy with families is nevertheless a rather weak one. Compared to kinship nation-states are highly abstract communities, stabilized mainly by means of symbolic politics and originally very often through brute force (Anderson, 1983). Even in the most successful and stable nation states, like France, nation-wide feelings of solidarity are more a result than a prerequisite of nationbuilding-processes. Again, the nation-state can not serve as an uncontroversial starting-point of impartial moral arguing. But surely any strategy of transformation has to take into account that feelings of belonging and trust do not change over night but can at best be extended step by step. Effectiveness and security A third defence of the present state system refers to the benefits of a moral division of labour (Goodin, 1988; Shue, 1988). It would be inefficient and dangerous to concentrate political competences at only one point in social space. Nation states are more comprehensible than a worldwide state would be; they leave some room not only for “voice” but also for “exit”; the abuse of power is easier to identify and to correct if necessary, etc. Unfortunately, the argument is not specific enough. It does not distinguish the given system from some functional equivalents we might think of instead. Furthermore, it is highly implausible to assume that in a situation of true impartiality (an “original situation”) we would have chosen just the state system as it now exists. Why should it be most efficient and secure to construe states as large as China, Russia, the United States, or India on the one hand, and small ones like

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Luxemburg or Liechtenstein on the other? Why should it be most efficient and secure to place some states at the upper reaches and others at the lower reaches of big rivers; some at the sea and some in the midst of a desert? For reasons of efficiency and of security only, the present state system clearly is an imperfect solution. It calls for a radical redrawing of territorial as well as functional boundaries. What sort of a moral division of labour would the parties in an original position choose, given that they are free and equal representatives of individuals (for such a proposal, see Beitz, 1979)? This is not easily to determine, because we have to know much more about the general information accessible behind the “veil of ignorance”. But let us suppose that the parties are well aware of the problems highly abstract and anonymous social relations might pose for moral motivation, trust, and control of the performance of power, that they are informed about the role of specific cultures in shaping a person’s identity – although this must not be national cultures – and that they see some pragmatic advantage in determining the bounds of citizenship on a territorial, instead of a purely functional, basis. At the same time, they realize the – however ambivalent – role natural resources play in enabling economic development.2 Last not least the parties consider the possibility that some person’s conceptions of the good might best be realized in a political, social, cultural, and natural environment other than they were born into. By considering this, the parties differentiate between the role communities might play in shaping an individual’s identity and the fact that the identity of a person is never reducible to the influences of any specific community (Sen, 2006). Given all this kind of information, the parties would surely vote in favour of some moral division of labour, and one form among others might be a plurality of territorially defined nation-states. Nations could help to shape a person’s identity as well as her sense of belonging, they could foster her ability to participate in democratic deliberation, and her motivation to agree to fair schemes of redistribution.3 But the states would be much more equal in territorial extension and in access to natural resources than the states in our real world. (Perhaps they would be more like the emerging regions above the nation-states like the European Union and the Association of South East Asian Nations.) Nevertheless, the parties would also take care for some redistribution because even in an ideal world not any region could provide equally good conditions of human flourishing and development for all and under all circumstances. First of all, the parties would consider natural resources to be a common asset of mankind that has to be allocated to the greatest benefit of all and especially to the advantage of 2

3

The possible disadvantages of disposal over large amounts of natural resources have been debated under the heading “paradox of plenty” (see, with regard to oil, Karl, 1997). These are well-known reasons for some egalitarian thinkers to favour a liberal type of nationalism; see as one example Kymlicka, 2001, who argues that the parties behind a veil of ignorance would choose liberal-democratic nation-states. But he does not reflect upon the possibility that the parties would not vote for the system of states as it now exists but for a more egalitarian one in terms of territorial extension and access to natural resources instead.

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those least well-off in terms of natural endowments. For basically the same reason, they would also agree in generous regulations of freedom of movement, and not only with regard to emigration but to immigration as well (Carens, 1995). We must not go too far in speculating about the exact shape of such a world. There are too many dimensions of indeterminacy for arriving at definite conclusions beyond the highly abstract ones I have just mentioned. But whatever the exact outcome might be, the result would clearly be negative regarding the given society of states as a possible form of a moral division of labour. Moral path dependency So I conclude that the first three defences of the present state system, taken one by one and even in combination, are failures. So let’s take a look at a fourth argument that might be more promising. I will call it the argument from moral path dependency (Ladwig, 2002). “Moral path dependency” means that a fact which is morally arbitrary in its origins gains some moral importance thereafter, in the course of history. Among those facts is the shape of the existing state system. It is the outcome of practices such as forced marriages, post-feudal warfare, and colonial drawing of boundaries. Nevertheless, later on some states have emerged into institutionally thick and effective promoters and protégées of basic principles of justice. They have incorporated universally valid moral claims, yet in specific forms based on specific interpretations of their content. Although no state in the real world is fully just, some are procedurally open to an ongoing approximation of unrestricted justice. States that are basically just in this sense have institutionalized a reasonable version of sovereignty of the people, a regime of basic rights including subsistence, and a minimally acceptable version of equality of opportunity in order to take care of the fair value of civil and political liberties. In doing so, they provide all of their members with justifying reasons to accept them as their states (Dworkin, 1986). To be sure, there is no logical connection between political autonomy and a plurality of nation-states – as opposed to one single world-state. But as a result of political struggle, at some places “the particular” has given room for roughly fair terms of social and political participation based on shared feelings of responsibility and belonging. When referring to such feelings, don’t we fall back to the analogy with families rejected above? Not at all, for we now have an argument that is basically political, although dependent upon a contingent fact: Under the auspices of political powers over bounded territories some political communities now satisfy standards of political morality above a certain threshold. And what is more, they provide these standards with a concreteness they would lack in a “pure” form, untouched by any particularities. The institutions and procedures of any basically just states are in part responses to historically specific challenges and experiences. Apart from this specificity, the principles of human rights, sovereignty of the people, and fair equality of opportunity would suffer from too much indeterminacy. In order to acquire universally

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valid norms, citizens have to grasp their meaning in the light of what they take to be the morally most significant facts of their and their ancestor’s common history. 4 So acquiring them is always more than simply applying an already fixed content to a specific context. Consequently, the universal validity of basic principles of political morality should better be interpreted in terms of an “iterative universalism” than of a “covering-law universalism”, to use Michael Walzer’s (1994) famous distinction.5 In the real world a regime of justice always bears the signs of its historic origins. Inevitably, this leads to some pluralism within the realm of justice, even on the basis of shared moral principles. Within this realm, there is room for “reasonable disagreement” (Rawls, 1994: 336ff.) For the individual person’s views are in part shaped by their different national belongings and the histories of their political communities, we have reason to apply the principle of tolerance on the fact of state pluralism. To sum up, the argument from moral path dependency starts with the arbitrariness of the given boundary lines, but it results in tolerating differences within the realm of justice. Borders are acceptable or even required as long as they allow free and equal citizens to take care of the flourishing of basically just political communities. Part of the common project of a citizenry might be to realize a reasonable version of justice in a historically and culturally adjusted form. Such a form deserves toleration. Therefore, justice also requires tolerating a plurality of political communities. To be sure, this justification of the existence of borders is strictly conditional: It rests on normative individualism all the way down. It does not presuppose any normative collectivism. States are never ends in themselves, only individuals are. Nonetheless, individuals might have good reasons to develop a political sense of belonging with regard to their states. The argument from moral path dependency can serve as an indirect justification of the existence of basically just states. But only of basically just states: With regard to the given society of states as a whole the results are still clearly negative. That society includes legitimate as well as illegitimate members. Explaining the normative consequences of the all-tooobvious fact that not all states in our real world are at least basically just would lead us deeply into problems of nonideal-theory, from incentives to morally justified reform up to “humanitarian intervention”. In the case of refugees and stateless, realizing cosmopolitan principles between as well as within the states is a matter of life and death. In the case of gross violations of basic human rights on a large scale, claims to sovereignty must be overridden in order to save huge numbers of individuals (Buchanan, 2004: Ch. 11). But for reasons of space, I will leave such problems aside and simply conclude that a society of states is not as such incompatible with norms of justice. That raises the question about the relative moral 4 5

This is what Jürgen Habermas (1994) calls “constitutional patriotism”. Walzer has a basically empirical understanding of iteration whereas I take it to be a consequence of the universal validity of moral principles which however, as abstract principles, need to be concretized.

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weight the claims of states can have compared to that of individuals given the former are at least basically just. Justification and application The question leads us back to the alternative perspectives on global distributive justice we have mentioned in the beginning: cosmopolitanism and internationalism. Regarding cosmopolitanism, we can start with a definition given by Thomas Pogge (1994: 89f): Three elements are shared by all cosmopolitan positions. First, individualism; the ultimate units of concern are human beings, or persons – rather than, say, family lines, tribes, ethnic, cultural, or religious communities, nations, or states. (…) Second, universality: the status of ultimate unit of concern attaches to every living human being equally – not merely to some sub-set, such as men, aristocrats, Aryans, whites, or Muslims. Third, generality: this special status has global force. Persons are ultimate units of concern for everyone – not only for their compatriots, fellow religionists, or such like. Now obviously, a universalist, egalitarian, and individualist conception of impartial justification, as explained in the first part of this text, is basically cosmopolitan in all three respects distinguished by Pogge. We can call this a “cosmopolitanism of justification”. The alternative at this elementary level would be an “internationalism of justification”. It is favoured by authors like the late Rawls (1999: § 3), who take states, nations, or “peoples” as the genuine subjects to whom claims of justice have to be justified. Rawls also rejects the idea that basically the same justification of norms must be acceptable for all, regardless of their cultural or national belongings. In Rawls’s view, reasoning about norms within and among liberal societies has to be separated from such reasoning within and among nonliberal societies. I find this alternative position unconvincing: It leaves us without a compelling reason for accepting rules of justification that presuppose so much about the world as it already is, even in respects that are responsible for serious initial inequalities. From the level of justification we can distinguish a level of application. Defending cosmopolitanism at the first level does not logically commit us to cosmopolitanism at the second. “Cosmopolitanism of application” means that at least some norms of global justice directly apply to individuals, unmediated by states or other collective entities. Taken to the extreme, we would have to reject any genuine claims of justice beyond the level of the individual members of the global moral community. There would be no room for justice between and among nation states as a genuine dimension of global justice. As a slogan: There is no such thing as international justice, there is only justice among individuals. Following the argument from moral path dependency, however, such a pure cosmopolitanism of application turns out to be unpersuasive: Individuals can have good reasons to identify with their states. Basically just states are qualified to represent individuals in the international sphere. As true representatives of natural

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persons, states are “moral persons” with claims of their own. This gives international justice, justice between and among states, some legitimate room at the level of application: International justice is an integral part of global justice. I will now turn to its main implications.

3

Internationalism

In the world of ideal theory, we would firstly find sufficiently just states only. I differ from Rawls (1999: Part II) in this regard, for I do not think we should include “decent hierarchical societies” into ideal theory. Such societies would not provide all of the citizens with sufficiently good reasons to identify with them as their societies. A decent hierarchical society includes different classes of members, e.g. the “orthodox” at the top and the “unbeliever” at the bottom. And because it neither guarantees rights to democratic participation – as opposed to a “decent consultation hierarchy” granted to groups – nor a minimally acceptable version of equality of opportunity it is not procedurally open to an ongoing approximation of real justice. Rawls himself concedes that “decent hierarchical societies” are not as just as “well-ordered” liberal societies. His ultimate reason for including the first ones into ideal theory seems to be that he wants to avoid the suggestion that any society that is not truly liberal is in principle a candidate for non-military or even military intervention (Sangiovanni, 2008). But even admitting as much, we are not forced to include some non-liberal societies in ideal theory. We can morally criticise a society, e.g. for not being truly democratic or sufficiently fair to women or members of minorities, and even disadvantage it, e.g. by excluding it from certain agreements and privileges, without disregarding its sovereignty. Secondly, in the world of ideal theory, there would only be fair relations between and among the states. All basically just political systems are entitled to free and equal membership in a community of legitimate states. The community is effectively regulated by five principles of a just public international law. The first one which is logically prior to, and a necessary component of, all the other principles holds that every treaty is binding upon all its parties: pacta sunt servanda. The second principle forbids any interference into the internal affairs of other states against the will of the demos concerned. It requires mutual recognition of inviolability in the essential domains of sovereignty of the people. The third principle forbids any formal or informal discrimination, for example in international trade. All the peoples should be free, without pressure or fear of disadvantaging, to take decisions following their own reasonable public conception of political morality, e.g. regarding worker’s rights, public health care, or environmental protection.6 The fourth principle prescribes an equal right of any demos to partici6

Peter Singer (2002: 90) accuses the WTO to place economic considerations ahead of legitimate concerns for issues such as environmental protection and animal welfare and to impose sanctions in intentional trade on that basis.

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pate in the making, application, and enforcement of the global rules of conduct. Finally, the fifth principle guarantees any state the effective freedoms and resources needed to retain just political institutions and to function as a free and equal member in the international community, especially with regard to the fourth principle. The fifth principle obviously is a requirement of prudence, because failed states could easily destabilize the entire community of states. But it is also a precept of justice, at least in the following version: If a basically just state, through no fault of its own, is unable to play its role as a free and equal member in the community of states, it is entitled to international assistance. This is similar to the duty to assistance justified by Rawls (1999: § 15). Unfortunately, Rawls does not go substantially beyond this duty. He does not accept cosmopolitan principles of distributive justice, that is, a just distribution directly owed to individuals, apart from a minimalist right to subsistence. And he does not say a word about claims to global freedoms of movement and of settlement.

4

Cosmopolitanism

But even in ideal theory, cosmopolitan principles of distributive justice should find a place along with the principles of a just public international law. As I argued earlier, the parties in an “original position” would accept some redistribution due to the fact that even in an ideal world not any region could provide equally good conditions of human flourishing and development for all and under all circumstances. For basically the same reason, they would also agree in generous regulations of immigration. They would consider the possibility that a person might choose to follow his conception of the good in a political community that is not his own from the beginning of his life. By introducing both sorts of principles the parties would do justice to the fact that human beings are always more than members of collective entities. They remain individual persons with claims irreducible to that of states. This is even more important if we accept the argument from moral path dependency. The argument leads to the conclusion that at least some of the states in our real world are basically justified including the borders they already have. But these borders separate large states from small ones and territories rich in natural resources, including access to the seas and the big rivers, from those that are poorly endowed by nature. The living conditions in rainy Norway would still vary significantly from that in dry Mongolia if both states would be well-ordered and had sufficiently just constitutions. We should therefore introduce some elements of a “cosmopolitanism of application” into ideal theory. They would include entitlements to just distribution of economic goods and resources as well as claims to freedom of movement and of settlement. Taken to the extreme, cosmopolitanism would lead to a world in which the fate of birth no longer influences any individual’s access to advantages but is

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totally replaced in that respect by criteria such as need or merit which, other than the place of one’s cradle, are not morally arbitrary (Gosepath, 2001). According to the principle outlined in the beginning, this would require redistribution in order to exclude, or to compensate for, brute bad luck. Unfortunately, we will never be able to neutralize the effects of one’s birth and upbringing in a particular country and culture up to a point of an unlimited equality of opportunity for all the children of the world. What is more, even trying to do so would lead to serious tensions with the valid claims of basically just states. Without some control over borders and some space for democratic decision-making, particular political communities could not play any independent role. Finally, we have to take into account the fact of reasonable pluralism within the realm of justice. The universalist principles of political morality are much too abstract for becoming realized in a “pure” form, untouched by any particularities. For both reasons, political autonomy and reasonable disagreement, we should favour a conception of global distributive justice that allows for morally acceptable differences. Consequently, I propose to deviate from a strictly individualist understanding of cosmopolitan global justice in two regards. Open borders Firstly, we should introduce a rule of priority: Global freedom of movement and settlement is a prima facie-right of all citizens of the world which however is ranked lexically lower than retaining sufficiently just political communities. Only insofar as a community is able to preserve it basically just institutions its members are obliged to let newcomers settle among them and to grant them full rights to citizenship after an acceptable short period of settlement. This proviso entails what Joseph Carens (2005: 336) calls the “public-order-restriction”. But it also rests on a deeper consideration: Opening the borders must be compatible with due respect to the particular “roads to justice” leading through a plurality of political communities. Immigration shall not destroy the social bounds and expect too much of the political institutions in which a particular yet reasonable interpretation of justice has taken shape (see Ladwig, 2002, for a more detailed explanation). Anyway, given just background-conditions, it is not too likely that the amount of migration would pose an existential threat to particular communities. Most people prefer to stay in countries or at least in regions they are already familiar with. In our real world, the largest proportion of migrants wants to leave behind seriously restricted conditions. This does not only apply to those accepted as true refugees. Even among the “voluntary” migrants many would rest at their native lands if the global structure would be more egalitarian. In short, large parts of the problems open borders might pose for political communities would surely disappear under conditions we are already obliged to foster for reasons of justice.

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Economic goods and resources Secondly, although some redistribution of economic goods and resources is directly owed to individuals, their political communities should still play an important role as its direct recipients, and not only for reasons of efficiency. Political communities provide a room for public deliberation necessary for determining the goods and principles of a just distribution owed to individuals. Due to the fact of reasonable pluralism people in different communities and cultures will differ in both regard to a certain degree. They might, for example, attach different value to economizing and busyness on the one hand, pleasure and leisure on the other. They might differ about where exactly we should draw the line between a person’s responsibility and that of her community, which goods should be publicly available and which should be at the disposal of individuals, etc. Therefore, a global welfare-state, unmediated by particular communities, would not only turn out to be inefficient in all probability. It would also surely act unjust for it would impose some particular, and reasonably contested, interpretation of distributive justice all over the world. What is more, citizens of basically just states have reasons to attribute intrinsic value to their membership. They can esteem having political autonomy in a state they reasonably accept as their own. And given a plurality of basically just states, we should encourage individuals to accentuate their political responsibility as citizens of particular communities. Because the justice of the world order depends on the adequate functioning of its constitutive elements, and states take part in constituting a just world order, each individual citizen should take care of the flourishing and ongoing improvement of at least one particular state. And that requires having some local democratic competence even with regard to cosmopolitan norms of distributive justice. Finally, a consideration of efficiency goes in the same direction: We should avoid setting incentives which were self-defeating from the point of view of justice. Governments of states shall take care of good governance as far as they can. But the incentives to do so were diminished if a global welfare-state would automatically guarantee a just distribution to individuals no matter what the performance of their local states. The states could then simply rely on institutions of global governance instead of deciding and acting carefully by themselves. But it is equally reasonable to suppose that all citizens, wherever they live, want to determine the courses of their communities under fair background-conditions. Assuming that any state is a fully just mediator of its citizens in the global realm, and any individual is a citizen of at least one fully just state, fully just background-conditions would suffice to conclude that any individual, as a “citizen of the world”, does receive her fair share of economic goods and resources. On the other hand, if a particular individual does not receive her fair share, then, given fully just background-conditions, it follows that at least one state is not fully just. In any case, fully just background conditions would guarantee that the “outcomeresponsibility” (Miller, 2007: 154) for a remaining injustice belongs to a particular

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political community. If the community is at least basically just, as we suppose in ideal theory, it is procedurally open to cure the injustice by means of democratic deliberation and decision-making. And that, to repeat, is part of the responsibility each political community should bear by itself. Consequently, each individual has a cosmopolitan entitlement to fair economic background-conditions of her democratic engagement as a citizen. According to our general principle of distributive justice, the fairness of the background-conditions should be determined in a way that is both ambition-sensitive and endowment-insensitive. No citizenry should be in a position that is economically worse than any other caused by factors from outside the realm of its own responsibility. If a particular society’s economic competitiveness is inferior to some other, it must be due to its own democratically accountable decisions and actions and not due to influences it cannot control. One influential factor a particular society cannot initially control is its disposal over natural resources. Even in ideal theory, the states face unequal starting conditions in this regard. We should therefore introduce a scheme of progressive taxation, e.g. Thomas Pogge’s (2002: Ch. 8) Global Resources Dividend. However the technical details of the scheme, it should ensure that the unequal distribution is to the greatest advantage of all states, especially those worst-off in terms of natural endowments. At the other hand, it should provide any state with incentives to diminish the dependency of its economy on resources that are not renewable. I will finally address one natural objection to my proposal. The objection holds that it is not truly cosmopolitan because it does not necessarily do justice to individuals. Why should an individual suffer from a decision of his government with which he might disagree (see Caney, 2005: 130)? Even in the most democratic systems the best we can hope for are decisions backed by the will of a majority. And the whole point of cosmopolitanism is that we shall not reduce the valid claims of individuals to that of states and their representatives. Two things are worth considering here. Firstly, among the universally valid claims of individuals there are claims to democratic citizenship as well as those to distributive justice. But in order to fulfil claims of the first sort it is impossible to pass over the distinct responsibility of states, given they are basically just. That is why cosmopolitans should concentrate on just background-conditions for any local democratic deliberation and decision-making.7 Secondly, according to my ideal theory, borders and societies are widely open to immigration and freedom of set7

I therefore agree with Simon Caney (2005: 130) that it is extremely unjust to individuals to become economically disadvantaged as a consequence of decisions that unelected politicians took in their name, as might happen even in Rawls’s “decent hierarchical societies”. But that is one of the reasons I see for excluding this type of society from the level of ideal theory. I also agree with Caney that Rawls fails to take into account the justice or injustice of the global basic structure. But part of my own approach is a proposal on how we should conceptualize a just basic structure of the global society, namely, in terms of economic background-conditions that are ambition-sensitive and endowmentinsensitive with regard to any local democratic decision-making.

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tlement. This norm shall secure that an individual who does not identify with her initial political community does have a fair chance to become a member, endowed with equal rights, elsewhere in the world. To be sure, even in combination just economic background-conditions and widely open borders cannot guarantee just results in any individual case. Therefore, my proposal entails a moment of moral compromise. But hopefully, it is outweighed by its central strength: that it combines internationalist with cosmopolitan norms of global justice and that it reconciles the latter with claims to political autonomy in particular communities and with the fact of reasonable disagreement between them.

Bibliography: Anderson, Benedict (1983). Imagined Communities. Reflections on the Origins and Spread of Nationalism. London – New York: Verso Books Barry, Brian (1993). Justice as Impartiality. Oxford: Clarendon Press Beitz, Charles (1979). Political Theory and International Relations. Princeton: Princeton University Press Buchanan, Allen (2004). Justice, Legitimacy, and Self-Determination. Moral Foundations for International Law. Oxford: Oxford University Press Caney, Simon (2005). Justice Beyond Borders. A Global Political Theory. Oxford: Oxford University Press Carens, Joseph H. (1995). “Aliens and Citizens: The Case for Open Borders”. In Kymlicka, W. (ed.). The Rights of Minority Cultures. Oxford: Oxford University Press, 331-349 Cohen, G. A. (1989). “On the Currency of Egalitarian Justice.” Ethics 99, 906-944 Dworkin, Ronald (1986). “Why Liberals should Care about Equality”. In Dworkin. A Matter of Principle. Cambridge, Mass – London: Harvard University Press, 205-213 Dworkin, Ronald (1990). “Gerechtigkeit und Rechte“. In Dworkin. Bürgerrechte ernstgenommen. Frankfurt /M: Suhrkamp, 252-302 Dworkin, Ronald (2002). Sovereign Virtue. The Theory and Practice of Equality. Cambridge, Mass. – London: Harvard University Press Forst, Rainer (1999). “Das grundlegende Recht auf Rechtfertigung. Zu einer konstruktivistischen Konzeption von Menschenrechten“. In Brunkhorst, H. et al. (eds.). Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik. Frankfurt/M: Suhrkamp, 66-105 Goodin, Robert (1988). “What is so Special About Our Fellow Countrymen?” Ethics 98, 663-686 Gosepath, Stefan (2001). “The Global Scope of Justice.” Metaphilosophy Vol. 32, Nos. 1-2, January, 135-159 Gosepath, Stefan (2004). Gleiche Gerechtigkeit. Grundlagen eines liberalen Egalitarismus. Frankfurt/M: Suhrkamp

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Habermas, Jürgen (1994). “Staatsbürgerschaft und nationale Identität“. In Habermas. Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Frankfurt/M: Suhrkamp, 632-660 Hailbronner, Kai (1997). “Der Staat und der Einzelne als Völkerrechtssubjekte“. In Graf v. Vitzthum, W. (ed.). Völkerrecht. Berlin – New York, 161-265 Karl, Terry Lynn (1997). “The Paradox of Plenty: Oil Booms and Petro-States.” Studies in International Political Economy 26. Berkeley Kymlicka, Will (2001). “Territorial Boundaries. A Liberal Egalitarian Perspective”. In Miller, D./Hashimi, S. H. (eds.). Boundaries and Justice. Diverse Ethical Perspectives. Princeton: Princeton University Press, 249-275 Ladwig, Bernd (2000). “Gerechtigkeit und Gleichheit.“ PROKLA 121. Soziale Gerechtigkeit, 585-610 Ladwig, Bernd (2002). “Gibt es ein Recht auf Einwanderung?“ Politisches Denken. Jahrbuch 2002, 18-40 Miller, David (1995). On Nationality. Oxford: Clarendon Press Miller, David (2007). “Wer ist für globale Armut verantwortlich?“ In Bleisch, B./Schaber P. (eds.), Weltarmut und Ethik. Paderborn: Mentis, 153-170 Nagel, Thomas (2005). “The Problem of Global Justice.” Philosophy & Public Affairs 33/2, 113-147 Pogge, Thomas (1994). ”Cosmopolitanism and Sovereignty”. In Brown, Chris (ed.). Political Restructuring in Europe: Ethical Perspectives. London: Routledge, 89-122 Pogge, Thomas (2002). World Poverty and Human Rights. Cosmopolitan Responsibilities and Reforms. Cambridge, UK. – Oxford – Malden: Polity Press Rawls, John (1994). “Der Bereich des Politischen und der Gedanke eines übergreifenden Konsenses“. In Rawls. Die Idee des politischen Liberalismus. Aufsätze 1978-1989,. Ed. Hinsch, W. Frankfurt/M: Suhrkamp, 45-79 Rawls, John (1999). The Law of Peoples. Cambridge, MA: Harvard University Press Roemer, John E. (1996). Theories of Distributive Justice. Cambridge/Mass. – London: Harvard University Press Sangiovanni, Andrea (2008). ”Justice and the Priority of Politics to Morality.” Journal of Political Philosophy 16/2: 137-164 Sen, Amartya (2006). The Illusion of Destiny. New York – London: W. W. Norton & Company Shue, Henry (1988). “Mediating Duties.” Ethics 98, 687-704 Singer, Peter (2002). One World. The Ethics of Globalisation. New Haven – London: Yale University Press Walzer, Michael (1994). Thick and Thin. Moral Argument at Home and Abroad. Notre Dame, Indiana: University of Notre Dame Press

Beyond the Myth of the State Hauke Brunkhorst

Some remarks on the long repressed complementarity of national and universal state building during the evolution of the modern society When Hans Kelsens in 1920 suggested a turn from national to world law he anticipated the legal revolution of the 20th Century, but his voice kept marginal in political philosophy, legal studies, social and political sciences until the end of the Century. But “slower or quicker the whole enormous superstructure” (Marx) of philosophy, science and public law changes when its former basic structure disappears. Hence, meanwhile a paradigm shift from national to world law is observable. From Kants (1797) and Hegels (1821) philosophies of law to Habermas’ Faktizität und Geltung (1992) and Luhmanns Das Recht der Gesellschaft (1993) the nation state was the starting point and central reference of all theories of constitution and law, be they critical or affirmative. Meanwhile this has changed, and there are a couple of overlapping research programmes which basically all go in the same direction from -

national to global constitutionalism (Fassbender 1998, Bogdandy 2006, Brunkhorst 2002, Habermas 2004),

-

from law of nations to world law (Luhmann, Berman Luhmann 1993, Berman 1995, Teubner 1997),

-

from a state centred to a concept of a constitution without a state (Sciulli, TeubnerSciulli 1992, Teubner 2003, Fischer-Lescano 2005 ),

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from the nation state to global statehood (Lutz-Bachmann/Bohman 2002, Albert/Stichweh 2007, Chimni 2004),

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from national government to global governance (Slaughter 2004, Zürn 1998),

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from national to transnational administrative law (Tietje 2003, Kingbury/Krisch/Steward 2006),

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from national separation of powers to a global system of check and balances (Möllers)

-

from the national to the post-national constellation (HabermasHabermas 1998.)

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Ulrich Beck’s sound criticism of the methodological nationalism finally has opened the door to a new and “progressive research programme” (Lakatos) that -

replaces the pluralism of national societies by the singular concept of the world society which includes all communications, is normatively integrated (Stichweh), and has transformed all political, legal, economic, cultural differences, and all differences of class, region, centre and periphery or of functional spheres into internal differences of the one and single world society which now depend totally on the global societal structure of this society (Luhmann) and its cultural constituents (Meyer).

Even in history we cab observe a strong turn from national to European and World history. This eventually should challenge the foundation of the “myth of the state” (Cassirer) a nation state centred meta-narrative that is still hegemonic in political, legal and social sciences, and in particular in Germany. In this paper I will try to look for an alternative perspective in the evolution of modern state and modern law. “State” and “constitution” are historical notions and its meaning is closely connected with historical narratives. The old meta-narrative presupposes (1) that the emergence of the modern state begins not earlier than the 16th and 17th Century (Frühe Neuzeit). The emergence of this state (2) is reflected theoretically in the political philosophy of Bodin, Hobbes, Spinoza and Locke, and (3) the distinctive features of the state are – following Jellineks famous definition – rule over a specific territory (Staatsgebiet), a sovereign ruler (Staatsgewalt), and his subjects (Staatsvolk) which during the English Revolution were transformed into a nation of citizens. Following this meta-narrative, the history of modern public law begins (4) with the Jus Publicum Europaeum after the peace of Tordesillas in 1494, latest after the peace of Westphalia in 1648.1 From this point of view (5) constitutions are written constitutions which are not older than the French and American Revolutions of the late 18th Century, hence, (6) the constitutional nation state is the paradigm case of modern statehood. During the last decades the old and still leading paradigm came more and more under attack, and at the same time the idea, analysis and description of the nation state became more and more obvious of the dark side of the nation state in history and presence.2 One of the main problems with the old paradigm and the old metanarrative is that it excludes too many alternatives, and this is partly so because it locates the break between ancient and medieval stratified societies based on family 1

2

Nearly as influencial as the myth of the Jellinekian Holy Trinity of state constituents is now: Carl Schmitt, (1988. orig.1950). Paradigmatic: Michel Foucault, Überwachen und Strafen. Die Geburt des Gefängnisses, Frankfurt: Suhrkamp 1977; see also the lectures from the 1970s: Foucault, Geschichte der Gouvernementalität I und II, Frankfurt: Suhrkamp 2004; see for a more conventionel historical research: Wolfgang Reinhard, Geschichte der Staatsgewalt, München: Beck 1999; Philip S. Gorski, The Disciplinary Revolution. Calvinism and the Rise of the State in Early Modern Europe, Chicago: Univ. of Chicago Press 2003.

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relations and modern functionally differentiated societies which are based on formal organizations and membership relatively late in history, between the 16th/17th and the 18th century (Kosellecks Sattelzeit). Now, I am not a specialist in this field of history but as far as I can see, there are now a lot of studies that challenge this well established narrative of the modern state, modern law and modern constitutional regime. Historians like Norman Cantor, Harold Berman, Robert Moore or Johannes Fried at least all suggest to lay the origin of the modern society deeper or earlier in history, and to go back to the time of the first European legal revolution (or the then so called reforms) of the 11th and 12th Century.3 Since that time exists in Europe 1 The functional differentiation of an autonomous legal system (autopoiesis of law) which for the first time in history was centred around a full fledged system of courts, and was enabled by an academically educated class of professional jurists and an academic culture of argumentation.4 2 A differentiated system of universities as the centre of the beginning functional differentiation of science (Honnefelder, 2008; Fried, 2009: 225ff, 358ff).

3

4

See only: Harold Berman, Law and Revolution. The Formation of the Western Legal Tradition, Cambridge MA: Harvard Univ. Press 1983; Berman, Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition, Cambridge MA: Cambridge Univ. Press 2006; Robert I. Moore, First European Revolution; Norman F. Cantor, Medieval History. The Life and Death of a Civilization, London: Macmillan 1969 (1963); Leidulf Melve, Inventing the Public Sphere. The Public Debate during the Investiture Contest (c. 1030-1122), London: Brill 2007, K. J. Leyser, „The Polemics of the Papal Revolution“, in: Beryl Smalley, Hg.: Trends in Medieval Political Thought, New York: Barnes&Noble 1965, 42-46; Johannes Fried, Zu Gast im Mittelalter, München: Beck 2007; Fried, Das Mittelalter. Geschichte und Kultur, München: Beck 2009; Peter Brown, “Society and the Supernatural: A Medieval Change”, in: Daedalus, Frühjahr 1975, 133-151, here: 142ff; James A. Brundage, Medieval Canon Law, London: Longman 1995, 34f, 39f, 53, 55f, 111, 154ff 164ff (positivization of law), 119 (modernity), 98ff (constituional law), 62ff (professionalisation), 80, 165ff (subjektive rights), 152 (funktional differentiation); Peter Landau, „Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien“, in: Heinrich Scholler, Hg., Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien, 23-47; Joseph Reese Strayer, On the Medieval Origins of the Modern State, Princeton 1970; Strayer, “Philip the Fair – A ‘Constitutional’ King”, in: AHR 62, October 1956, 1832; C. Warren Holister/John W. Baldwin, “The Rise of Administrative Kingship: Henry I and Phillip Augustus”, in: AHR 83, October 1978, 867-905; Brian Tierney, Religion, law, and the growth of constitutional thought 1150-1650, Cambridge: Cambridge Univ. Press 1982, 1, 16ff; Brundage, “The Rise of the Professional Jurist in the Thirteenth Century”, in: Syracuse Journal of International Law and Commerce 20, 1994, 185-190. Niklas Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, 25, 263, 265; Brundage, Rise of the Professional Jurist.

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3 The first modern state which was not the territorial nation state but the universal state of the church, the clerical Anstaltsstaat which already Max Weber has called the „erste rationale Bürokratie“ – the “first rational bureaucracy” of world history, and the beginning of the „moderne anstaltsmäßige Staatsverwaltung“ – the “modern corporative state administration” (Weber, 1964: 432, 549; s.a. 480, 615f; Berman, 1983; Wieacker, 1967: 74; Strayer 1970) . Although there were no written constitutions in the 12th century, but there existed for the first time in history a clearly developed system of constitutional law, first within the church state, then expanding to the slowly emerging territorial kingdoms and the republican avant-garde of the new city-states which for the first time in history combined the self-rule of citizens with an advanced system of public law (Berman, 1983; Mitteis, 1986: 229). There existed a dense network of legal regulations between all the political entities of Europe which was partly coordinative, partly subordinative. The first modern constitution was European, not national. This constitution worked in a strikingly similar way as Treaties of the European Communities or the European Union today, because it consisted first in a mix of direct and indirect supremacy of papal legislation and jurisdiction (today: European Law Supremacy; in particular the European Courts of Justice and Human Rights as a transnational supreme court system). There was, secondly, and also as in the European Union today, direct effect because everybody (who was wealthy enough) could appeal to the (usually acknowledged) highest authority of the papal court in Rome. At the same time, thirdly, supremacy and autonomy went well together, and despite of the papal law supremacy canon and civil law regulated the legal relations between the equal and autonomous political powers of pope, emperor and kings, who all were equal sovereigns under the European common law, and this at least resembles the strong role and autonomy of the nation states that consists together with the European law supremacy and obliges the Union to take care of the national identity of its members (Art. 6 Para 3 EUT).5 Since the time of the legal revolution of the 11th and 12th Century law has not only become a functionally autonomous system but also the normative idea of law changed deeply. The old Roman law was primarily functionally determined, a medium of coordination between the members of the ruling classes and of repression against the lower classes, a repression which happened mostly beyond the law (see Wesel, 1997: 156). Yet, for the Canonists of the 12th Century law no longer could be reduced to its societal function because it played an important role in the process and history of salvation, it was designed for the implementation of justice already in this world, and a medium for the improvement of the society. Since that time, one can say, that law was no longer a Luhmanian immunity system alone that had the function of stabilizing reciprocal expectation, bur a medium of changing 5

See Joh. Friedrich von Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, Stuttgart: Enke 1875, quoted from the reprint Graz: Akadem. Druck- und Verlagsanst. 1956, 93f, 96, 99, 101f, 168f.

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the world and realizing emancipatory claims. The double encoding of law as a systemic medium of repression and emancipation became the signature of law that is modern. Only this double encoding can explain why the ideas of legal freedom and equality which were not all realized in medieval law, gained such immense symbolic and legal power during the following centuries, and in particular during the revolutionary periods of the protestant legal revolutions of the 16th and 17th, and the constitutional revolutions of the 18th and 19th Century. The papal revolution was the first constitutional revolution in history (Berman, 1983).6 On the metaphysical grounds of the Corpus Christi dogma the medieval jurists have lagalized and juridificated (verrechtlicht) the whole universe, the mortal and the post-mortal existence of men, and in particular they have constitutionalized the two earthly bodies and swords of the Corpus Christi. The first European constitutional law already made the universal claim to be the constitutional law of the world, or world law, even if it was at best Western European law. This claim by the way, was the starting point for a deeply ambiguous progress because it did not only imply rule of law and the constitutional limiting of arbitrary power but at the same time it was the starting point of the long and bloody period of Western imperialism that always was an imperialism of law, and this includes not only external, but also internal imperialism (Anghie, 2004; Kennedy 2004). Finally the ambivalent outcome of the papal revolution, its cash value for the vast majority of the people was not their emancipation but the alliance of church (oratores) and princes/landlords (bellatores) for a better expropriation of the workers (laborantes who were mostly peasants) (Le Goff, 1970: 447).7 The emergence of modern law has enabled a much better and much more effective system of domination and expropriation, and this was such a great advance for the ruling classes that they successfully have repeated it in all the following revolutions. Before the revolution they needed the people to make the revolution, then after the revolution they needed the people to expropriate them. But despite of this dark side of law the great emancipatory advance of the same Western legal tradition consisted not only in the first and reluctant emergence of subjective rights, rule of law and legal universalism8 but even more in the coordination of conflicting powers 6

7

8

For an early application of this term to the papal revolution see Mitteis, Staat des hohen Mittelalters; Geoffrey Baraclough, ed.: Medieval Germany, 911-1250. Essays by German Historians“, Oxford 1938 (Introduction). For a brillant analysis of the dialectic of enlightenment of the first European revolution see Moore, First European Revolution. Landau, „Die Anfänge der Unterscheidung von Ius Publicum und Ius Privatum in der Geschichte des kanonischen Rechts, in: Gert Melville/Peter von Moos, Hg.: 629-638; Fried, „Über den Universalismus der Freiheit im Mittelalter“, in: Fried, Gast im Mittelalter, 143-172, hier: 159, 160ff; John of Salisbury, Policraticus, II/22; IV/2/7/8, VI/25u.26, VII/25, VIII/17; Carl J. Nerdeman, John of Salisbury, Tempe: Arizona Center for Medieval and Renaissance Studies 2005, 51ff; Nederman, „Introduction: Discourse and Contexts of Tolerance in Medieval Europe”, in: Laursen/Nederman, Beyond Persecuting Society, 13-24, here 22; Nederman, „Toleration. Skepticism, and the „Clash of Ideas“: Principles of Liberty in the Writings of John of Salisbury”, in:

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and colliding systems and spheres of value.9 Hence, the greatest advance of the first legal revolution (that was transformed and expanded during the following revolutions) was not only, as Berman writes, the dialectical reconciliation of opposites (2006: 5f) but the dialectical (and procedural) reconciliation of lasting opposites, of lasting conflicts, differences and contradictions between interests, systems and values.10 The very point here is that modern law emerged from the terror and fanaticism of a series of great revolutions. But in the end the resulting constitutional regimes established legal conditions for a (at least less violent) struggle for rights within the right, and this worked even within a system of strong hegemonic powers, class domination etc.11 There is some evidence that from revolution to revolution the political system and the political communities have learned to cope with more and more heterogeneity, diversity and difference, and at the same time have increased egalitarian self-determination and social inclusiveness (see Brunkhorst 2003) . This improbable development seems to be enabled not by an “ever closer” (Art 1 Para 2 EUT) integrated society but contrary by legally organized disintegration and growing heterogeneity. Therefore one can describe the great transformation at the threshold of modernity, the emergence of modern constitutional law in the storms of the papal and all the following great revolutions with Chantal Mouffe as a transformation from antagonism to agonism (Mouffe, 2005: 20)12 – if one keeps in mind (and against Mouffe and her Schmittian premises) that this transformation was enabled only by the juridification of politics (Fried, 1970: 61, 140).13 The origin of the great transformation from tragic antagonism to prosaic agonism was not (and again Laursen/Nederman, Beyond Persecuting Society, 53-70, here 55, 58, 60, 65f; Hans Liebeschütz, Medieval Humanism in the Life and Writings of John of Salisbury, London: Warburg Institute 1950, 55ff. 9 Berman, Law and Revolution. One could argue that the medieval society compared with the Western society or the world society of the 20th and 21s Century was much more intolerant against heterogeneity and diversity. This may be true, but we should instead of this compare the society of the 12th and 13th Century with that of the 8th and 9th Century, and the mechanisms of social integration by the law of ordeal and the canon and civil law of the 12th and 13th Century. May be, then we would say that this difference is much bigger than the difference of the world society of today and the medieval society after the papal revolution. Very instructive here is the great study of Peter Brown, “Society and the Supernatural: A medieval Change”, in: Daedalus, Spring 1975, 133-151. 10 Law of collision or “Kollisionsrecht” (Joerges, Teubner, Fischer-Lescano) has deep roots in Western constitutional law. 11 For a Gramscian actualization of Iherings famous „Kampf ums Recht“ see: Sonja Buckel, Subjektivierung und Kohäsion. Zur Rekonstruktion einer materialistischen Theorie des Rechts, Weilerwist: Velbrück 2007. For an idea of constituions as „konsentierte Dissensgrundlagen“ see Görg Haverkate, Verfassungslehre. Verfassung als Gegenseitigkeitsordnung, München: Beck 1992, 143. 12 “We could say that the task of democracy is to transform antagonism into agonism.” I would say differently that this is the task of the juridification of politics. 13 Juridifizierung der Politik“.

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different from Mouffe, Arendt and Schmitt) the Greek Polis nor the modern nation state but the first universal state that was modern, the European church state. What can we learn from this summary outline of the original history (Urgeschichte) of modern law and state, is that there are at least two different evolutionary paths of modern constitutional regimes, political organizations or legal states. Universal and plural statehood since the early awaken of a modern society in Europe are emerging in co-evolution. This co-evolution was activated by the universal legal state of the church but only a short time later the European kingdoms started to copy the path-breaking administrative and legal inventions of the church and the canon law (Strayer, 1970: 22). Both evolutionary processes are developing autonomously but belong together. Both are from the very beginning structurally coupled by universal constitutional law. Even after the decay of the papal church during the Protestant Revolutions neither the complementary evolution of universal and national statehood did disappear nor did the supremacy of universal and international law. But universal statehood has experienced a regression during the great time of the territorial nation state. It was replaced by a more primitive kind of legal order that had to stay behind the legal development of the single states which for a long period became the only branches of power of international law, being at the same time its cooperative legislators and administrators, and its individual prosecutors, judges, and executive actors in one legal personality. Yet, since the revolutionary changes in national and international law between 1941 and 1951 even a new global system of autonomous legislative, judicial and administrative organizations emerged beyond the nation states on global and regional levels, building a new kind of a universal legal community together with the nation states, or a “legal world state”. What we have today is, again a complementary system of universal and plural statehood on different levels, and it is for the first time in history actually global. Moreover, it is secular and it makes universal legal claims for egalitarian rights and democracy, even if it’s highly fragmented branches of power (which built a continuum of organs and crosses all state borders), are not democratically organized and represent a clearly hegemonic structured world state, in this respect again resembling it’s forerunner in the 12th Century (Chimni, 2004).14 But also the nation state between 1789 and 1945 was (and sometimes even today is) characterized by this basic contradiction between universal, egalitarian and democratic legal claims on the one hand and a highly restrictive, particular, even racist, elitist and undemocratic procedural norms to regulate the making of binding decisions. It is the rule of law that, as an immunity system, makes imperialism and hegemony possible, yet also enables, as a medium of emancipation, the building of counter-hegemonies and the emancipation from informal domination by formal rules.

14

For the notion of statehood (without Gewaltmonopol) and further discussion of state and/or global constitutionalism see Albert/Stichweh ed., Weltstaat und Weltstaatlichkeit.

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Literature Anghie, Antony (2004). Imperialism, Sovereignty and the Making of International Law. Cambridge: Cambridge Univ. Press. Berman, Harold (2006). Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition. Cambridge MA: Cambridge Univ. Press. Berman, Harold (1983). Law and Revolution. The Formation of the Western Legal Tradition. Cambridge MA: Harvard Univ. Press Brunkhorst, Hauke (2003): Solidarity: From Civic Friendship to a Global Legal Community Cambridge MA: The MIT Press Chimni, B.S. (2004) “International Institutions today: An Imperial Global State in the making.” European Journal of International Law. vol. 15, 1/ 2004, 1-37; Fried, Johannes (2009). Das Mittelalter. Geschichte und Kultur. München: Beck. Fried, Johannes (1974). Entstehung des Juristenstandes im 12. Jahrhundert Köln, Wien 1974 Honnefelder, Ludger (2008). Woher kommen wir? Ursprünge der Moderne im Denken des Mittelalters. Berlin: Univ. Press 2008; Kennedy, David (2004). The Dark Sides of Virtue. Princeton: Princeton Univ. Mitteis, Heinrich (1986). Der Staat des hohen Mittelalters: Grundlinien einer vergleichenden Verfassungsgeschichte des Lehnzeitalters. Köln: Böhlau. Le Goff, Jacques (1970). Kultur des Europäischen Mittelalters. München: Droemer. Mouffe, Chantal (2005). On the Political. London: Routledge. Strayer, Joseph Reese (1970). Medieval Origins of the Modern State. Princeton. Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, Berlin: Duncker und Humblot Weber, Max (1964). Wirtschaft und Gesellschaft. Köln: Kiepenheuer. Wesel, Uwe (1997). Geschichte des Rechts. München: Beck. Wieacker, Franz (1967). Privatrechtsgeschichte der Neuzeit. Göttingen: Vandenhoeck.

Redistribution and Recognition – Locally and Globally The myth of the “local cultural community” in postdevelopmentalism and communitarianism. Gerhard Hauck

1

Introduction

In the beginnings the debate on globalization was dominated by ideas of a worldwide homogenization, of the disappearance of all diversity in a uniform modernity (cf. e.g. Brecher/Costello 1994; Barnett 1994), if not by buzzwords like “McWorld” or “Coca-Colonisation”. Globalization was imagined as a sort of irresistible steam-roller, relentlessly rolling on its way, crushing everything it encounters, and fuelled by the recent advances in communication technology and the permanently flowing streams of global finance capital, that traverse the globe in fractions of seconds. But soon a second phase set in, in which the resilience of the “local” was discovered. Local actors were no longer seen as passive victims of globalization, local cultures were conceived of as absorbing only those “influences that naturally fit into and can enrich” them (Friedman, 1999: 29). Even the products of global commodity production have to be locally situated, locally made sense of, wherever they are to be used (cf. Loimeier/Neubert/Weißköppel, 2005) – a paradigm case became the Maggi-cube, which is produced in a lot of locally different forms worldwide, e.g. spiced with chili pods in Africa. And, to be sure, all this is not sheer smoke-screen parlance. As a rule, local recipients of global products are not just passive victims who have no chance but to succumb to the impact of globalization. They are conscious strategic actors, “displaying remarkable creativity, resilience, flexibility and determination to survive” (Binsbergen/ van Dijk/ Gewald, 2004: 43) and to cope with external influences – though this also is only part of the story; the other part being the fact of their exclusion from most of the goods and benefits they are promised in the process, since “global availability is not synonymous with global affordability” (ibd.: 19). Anyway, since the late 1990s the “local” regained prominence in studies on globalization – if not in those of an economic or politological brand, at least in sociological and anthropological ones. The metaphor of the local David holding his stand against the global Goliath (Hannerz, 1996) drastically illustrates this new localist turn. The range extends from rather optimistic mainstream positions like those of T.L. Friedman (1999 – see above) to rather critical “cultural studies” positions like those of Arif Dirlik for whom the “local” becomes “the site of resistance to capital, and the location for imagining alternative possibilities for the fu-

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ture” (Dirlik, 1997: 22). But the lead is definitely taken by the hard core of the post-developmentalist school.

2

Local cultural communities in post-developmentalism and communitarianism

For the post-developmentalists the dominating discourse in world politics today is the development discourse, a discourse that itself first created the realities and objects it feigned to describe and tried to influence. The definition of one part of the world (“the West”) as “modern” or “developed” and of the rest as “traditional” or “underdeveloped” produced in the latter just those attitudes (“readiness for development” e.g.) which the globally dominating economic powers need in order to push through their profit interests at the costs of the others. Forms of living that are not compatible with the absolute predominance of homo oeconomicus have to disappear. I think, this pungent critique is plausible. But much less plausible is the alternative model the post-developmentalists propose. At least for the hard core of the school (consisting of Majid Rahnema, Gustavo Esteva and Wolfgang Sachs) it amounts to the replacement of the universal goal of an idyllic modern industrial society by the equally universal goal of an equally idyllic pre-modern subsistence economy. Rahnema (1997a) and Esteva (1997) sing hymns in praise of the premodern – but still existing – “vernacular” communities in India or the Andes as well as contemporary barrios in Latin-American cities, which, in their eyes, were pure Gardens of Eden of true humane values; to them we have to return. They were dominated by solidarity and modesty instead of striving for profits, by reciprocity and mutual aid instead of egoism and competition, by contentedness instead of accumulation, by reciprocal trust instead of alienation, by acceptance of the naturally given hierarchies instead of envy and equalitarian delusions. Of course, they had their difficulties, too, but their social “immunity system” took care that these were always overcome. It was only by the intrusion of the Western development discourse, which infected these communities like an AIDS virus, that these immunity systems were destroyed – and the consequences are catastrophic: the young start behaving like Western youths, breaking traditional norms and buying all sorts of Western rubbish (from hamburgers to pornography), and there are no authorities, who can forbid them to do so. This way, the last strongholds of resistance against the levelling off of all cultural differences by a globalized capitalism are menaced if not destroyed. The freedom of “vernacular” communities to decide themselves, how to define the “good life” for them, is progressively lost. Justice, therefore, demands that those communities are protected against the destructive development discourse including its greed for accumulation as well as its equalitarian creed. Rahnema’s utopia is an “aesthetic world order” (Rahnema,1997a: 400) consisting of thousands of “vernacular” communities and modelled according to the rules guiding them.

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The question remains how these claims and this utopia could be justified. Rahnema doesn’t care, for him ‘vernacular’ communities just are good – without any question. That cannot be the solution. Yet there is a definite affinity between his position and the concept of justice as developed by the communitarian school, especially in Charles Taylor (1992) and Alasdair McIntyre (1995b) – an affinity that may possibly be useful for justification. The major thrust of the communitarian creed is on identity formation. We cannot become an autonomous personality, a self, endowed with self-consciousness and ego-identity, but in the interaction with “significant others” (Mead, 1962). Only by learning to regard ourselves with their eyes, we can gain a concept of who we are, only by identification with them we can learn what should be and what shouldn’t. “We define our identity always in dialogue with … the things our significant others want to see in us” - and this all through our lives (Taylor, 1992: 33). Identity is not “inwardly generated”; we can gain it only by recognition by “a particular local and a particular natural community” (McIntyre, 1995a: 93) with a particular culture. That is why the communitarians rightly maintain that justice demands not just an equitable distribution of riches and rights. It equally obligates the state “to help disadvantaged groups preserve their culture against intrusions by majoritarian or ‘mass’ culture” (Gutman, 1992: 5), not to force equality upon them, but to guarantee their right on cultural difference. For, if the cultural community, on whose recognition my identity is based, is despised by a dominant majority or a dominant discourse, my self-esteem, too, will suffer. So, this concept could provide a justification for the localist turn. The “vernacular” communities consist of significant others who provide each other with a sense of belongingness and a notion of how the world is and how it should be. Their dissolution would occasion enormous injuries in the personalities of their members. Therefore, justice requires their protection. That far, the argument is conclusive. But even that far, both approaches, the communitarianist as well as the post-developmentalist one, suffer from grave deficiencies. Most important: both of them are based on substantialist and harmonistic concepts of culture, and both share a sort of culture-theoretical monism.

3 3.1

Critique A substantialist and harmonistic concept of culture

As a “substantialist” concept of culture I understand, following Bourdieu (1998: 16), a concept which treats the properties, “that are characteristic for particular individuals or groups in a particular society at a particular moment, as substantial characteristics, fixed once and forever in a biological or … cultural essence”. So, for substantialists, cultural communities are conceived of as discrete entities that are clearly separated from each other and at least in their essential characteristics resilient to historical change. Harmonistic concepts of culture are those that negate

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or cover up internal contradictions, conflicts and inconsistencies in the worldviews and value systems as well as in the political and economic structures of cultural communities. In Rahnema and Esteva as well as in McIntyre and Taylor both features are definitely implied. For Rahnema “vernacular” communities are organisms, endowed with an “immunity system” that protects them against any outside influences which could destroy one or more of their essential properties; like all organisms they are conceived of as discrete, boundary-maintaining systems with all of their elements fitting together in a functioning whole. McIntyre even speaks of “natural” communities, though this is sheer nonsense; nature doesn’t draw boundaries between groups of human beings (as it does in a certain sense between biological species by barriers to procreation), only humans are doing that. For McIntyre as for Taylor the fundamental values of the cultural communities are given once and forever; the preservation of personal identity as well as morality require lifelong loyalty to the values the significant others taught us in the cultural communities where we have been brought up. The attempt to cut ourselves loose of them is illusionary and would imply the deformation of our present relationships (cf. McIntyre, 1995b: 295). That is why cultural communities as such have to be protected by the state, their right on difference has to be maintained. All this clearly presupposes that the differences between cultural communities are of an essential, an ontological nature and that those communities are integrated wholes, free of internal contradictions and inconsistencies. For otherwise the demanded unconditional protection for and loyalty to them would mean the preservation of historically contingent forms of life against social change as well as taking sides with the values and interests of particular members or subgroups – and against those of others. Yet the “constructivist” debates on “the invention of traditions” (Hobsbawm/Ranger, 1983), “imagined communities” (Anderson, 1983) and “hybrid cultures” (Clifford, 1988; Hannerz, 1992), at the latest, should have made it clear to everybody interested in these subjects that the differences between cultural communities are not of an ontological nature, not based in any invariable essence, but historical, man-made and changeable; that they are, as a rule, composed of elements stemming from quite distinct eras and areas; that all cultures contain internally contradictory elements, which are not integrated in the form of a closed and logically consistent system, but, at best, in the form of cookery-book knowledge, consisting of uncounted recipes; that the correct interpretations use to be controversial, so that identity formation cannot proceed in the form of an uncritical acceptance of an integral tradition but only in the form of critical reflexion on alternative possibilities; that cultures may overlap, so that inside and outside become blurred; that they can be transformed even in their central spheres by outside influences; and that nearly all of them are internally split by divergent political and economic interests, by unequal distributions of power and privilege (for a summary cf. Hauck, 2006). Consequently, the hope that local cultural communities as such will resist to destructive globalization may in many cases be as unwarranted as the

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idea that they have to be protected as such might be unjustified; protection might privilege just the already privileged ones; and their interest in resistance might be quite modest. Now, of course, it is conceivable that the open, hybrid, contradictory, powerand conflict-ridden character of cultures is just a modern phenomenon, and that “traditional” or “vernacular” societies of the past show none of these features. This is, indeed, the common wisdom of modernization theory, postmodernism and postdevelopment or, for that, of Popper, Habermas and Lyotard, Rostow, Rahnema and Sachs. But, as I tried to show in a number of articles, it is quite a dubious idea.1 For Popper, who coined the term “closed society” for those cultures, this society is realised in an idealtypical manner in “pre-Socratic Greece”; but if you have just a very short look at the Ilias or the Odyssee you will immediately notice that things look quite different there. The idea that everything is strictly regulated by a rigid tradition, so that there are no moral problems and no room for discussion or individual choice, is completely out of tune with what Homer’s heroes do; they are extreme individualists, constantly quarreling among each other, constantly competing for power and privilege, constantly discussing what is right or wrong. And, in this respect, the great Indian epos Mahabharata is no different. Even the Bhagavadgita must be read, in its essence, as a controversial debate on the moral value of an ethics of kinship as compared to an ethics of heroic warfare. Literary testimonies from stateless African societies like Chinua Achebe’s ethnographically precise historical novels on the precolonial and early colonial Ibo society tell just the same story: competition, discussions and contradictions everywhere. I’ll spare you further references – wherever you look in history or ethnography, discussions, contradictions, hybridity are ubiquitous features of all the so-called traditional societies. 2 Still, it is conceivable that today’s surviving “vernacular” societies are different, that they are homogeneous and united in their resistance to destructive globalization. The most pertinent empirical evidence for such an interpretation is provided by Shalini Randeria. She tries to demonstrate that castes and caste councils [in India] “can be interpreted as forms of a self-organizing civil society” (Randeria, 2004: 157). Since castes are ascriptive communities, this presupposes, of course, that voluntariness is not a constitutive feature of “civil society”; therefore, she follows Kocka and defines “civil society” as “a space of social self-regulation and self-organisation beyond the spheres of the market, the state and the family” (ibd.:166). And, theoretically, it is definitely possible that ascriptively defined communities such as castes or caste councils are spaces of self-organisation of this sort; Randeria shows in her empirical studies among Dalit castes in Gujarat that they function, indeed, as such, even that the councils’ legitimacy is by far higher than that of the state courts. This way, the castes and caste councils present fora of “participatory decision making” which “jealously protect their own norms, procedures and practices of self-administration against state interventions” (ibd.: 174f). 1 2

Cf. e.g. Hauck 1996a; 2003 In addition to Hobsbawm/Ranger 1983 see e.g. Lévi-Strauss 1968 (esp. 181f), 1970 ff; Carstairs 1968; Weiskel 1980; Berman/Lonsdale 1992; Nelson 1994.

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So, they create “spaces for testing alternatives to the state and forms of self-organisation” (ibd.: 168). The argument is convincing as far as the Dalits are concerned; their entitlement to cultural recognition cannot be disputed. Yet it is much less convincing when it is extended to castes and caste councils as such (as it is once and again in Randeria’s text). Self-organisation is not per se good. If caste councils of dominant landowning castes decide to send gangs of thugs to Dalit wards in order to punish insubordinate agricultural labourers, that, too, is a sort of self-organisation – not quite an uncommon one, as Randeria herself emphasizes in other texts.3 And this self-organisation is not in resistance but in defense of world-wide socio-economic inequality. Self-organisation in local cultural communities may well contain an anti-authoritarian potential; but it may as well be used as an instrument to defend or expand the existing power relations, and more often than not it is – at least in privileged communities. But even concerning the Dalit castes the argument is flawed in a certain sense. The author mentions that “women have no chances of participation” (ibd.: 166) and “are not allowed to speak for themselves” in the caste councils’ deliberations “but are represented by male relatives” (ibd.: 173) and, furthermore, that “powerand status-distinctions” play “an important role” in these fora. According to my very old own calculations in 1968 60 % of the Dalits in Andhra Pradesh were landless labourers, but up to 1 %, indeed, were big landowners (cf. Hauck, 1996b: 196). To be sure, the discrepancies in other castes are much larger, but the Dalit castes, too, are not free of internal contradictions,4 though, I trust, Randeria is right, that this doesn’t impede their resistance against state or world-market intrusions. The situation reminds me of Stuart Hall’s argument on “blackness”: In a first phase, called “Identity Politics One”, black people in Britain “being blocked out of and refused an identity and identification within the majority nation” had “to find some other roots on which to stand” (Hall, 1991: 52). They found it in the construct of a collective black identity that served as a solid ground on which to base their struggle for cultural recognition – just as “caste” (or “being Dalit”) may have done for Dalits. But this identity, which was an imperative weapon in the struggle against one kind of enemy, could also “provide a kind of silencing in relation to others” (ibd.: 56) – it silenced “the autority of Black masculinity over Black women” (ibd.), it silenced the “very specific experiences of Asian people” (ibd.) in Britain, and it silenced the class contradictions inside the black community (ibd.: 57). These are the costs of “trying to think of the notion of Black as an essentialism” (ibd.: 56). The only alternative is “a politics of living identity through difference”, a politics that recognizes that “we are all complexely constructed through different categories, of different antagonisms”, a politics that has “no guarantees” (ibd.). The decisive point is that there is no stable hierarchy of identities or values; for reasonable solutions they have to be weighed up reflexively one against the other in every single situation. 3 4

Cf. Randeria 1994; for recent cases cf. Wienold 2005 For a convincing analysis of similar internal contradictions in local cultural communities in nearby Nepal cf. Pfaff-Czarnecka 2005

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Culture-theoretical monism

Let us come back now to what I consider the third common deficiency of the communitarians and the postdevelopmentalists, their culture-theoretical monism. For the postdevelopmentalists it is the development discourse as such – certainly a cultural phenomenon – which is responsible for all the plight and discrimination of the people living in the “vernacular” societies of the South. But what critics like Sachs, Esteva and Rahnema seem to forget, is, as James Ferguson (1999: 248) reminds us, “that the post World War II conceptual apparatus of development did not create global inequality at a stroke but only provided a new means of organizing and legitimating an only-too-real inequality that was already very well established. It was not Truman’s speech in 1949 that send Africa to the ‘end of the queue’ …; conquest, colonial rule and centuries of predatory violence and economic exploitation saw to it that they were already there.” There is no denying that the development discourse had its impact; but to raise it to the sole determining factor means definitely to resort to an unjustified cultural monism. Social life is not just discourse, it is material facticity as well. In McIntyre’s argumentation, too, material facticity doesn’t find any place. His argumentation strictly restricts itself to the realm of meanings, values, norms and virtues. But Charles Taylor is, at least on a theoretical level, definitely not a culture-theoretical monist, since he recognizes socioeconomic equalization and cultural recognition as two equally valuable “primary goods” that justice demands to provide to everybody. Yet in practice his position also comes very close to cultural monism, since, according to him, it was only in the earlier phases of capitalist development that conflicts on socio-economic equality have been a central issue in the struggle for a just society. Nowadays, socioeconomic inequality and the corresponding conflicts have lost most of their urgency; with the rise of new ethnicity, feminism, the gay and lesbian movements etc. the struggle for recognition of cultural differences became the decisive one, instead (cf. e.g. Taylor, 1992: 38f). I think, it is obvious that Taylor’s perspective here is strictly bounded to the highly industrialised capitalist countries. But even if we may grant him that his argument has a grain of plausibility for these countries – and I am very sceptical about that – there is no doubt that it is completely out of tune with the reality of the world system, with world-wide inequality. Not only local cultural communities are all but thing-like, discrete, closed, ahistorical and homogeneous entities, the global system isn’t either. Globalization is not an oversize billiard-ball of planetary dimension, it is nothing but the expansion of the capitalist mode of production, its penetration into ever new spheres of life all over the world. And the capitalist mode of production is surely not a homogeneous integrated whole, it is full of internal contradictions, especially class contradictions, and open to many sorts of outside influences, especially by powerful hegemonic states. Even authors like Franz Nuscheler and Dirk Messner (2003: 425) who are completely unsuspect of any marxist inclinations notice that “social polarization in the world economy is still permanently increasing”. The global Gini-index went up from 0.62 in 1988 to

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0.66 in 1993, i.e. in just five years – for comparison: inside the OECD the Giniindex reached only 0.34. To give just one more figure on this topic: The industrialized countries of the West (including Japan) together make up for just 13% of world population but 54% of world income (ibd.: 431). What makes things even worse is, that it is not only inequality between nations which is increasing, but inequality inside nations as well – Andrea Cornia has calculated that in 45 out of 77 peripheral countries the Gini-indices went up (quoted in Kappel, 2003: 237); world champions in this discipline are Nigeria, Honduras, Brazil and South Africa with values between 0.7 and 0.8. But even for Germany the Gini-index rises since the early 1990s (as Joachim Merz’s contribution to this conference informs us); and there is no doubt that e.g. real wages stagnate for decades now, whereas capital incomes multiplied (cf. e.g. Beck, 1996: 86; WSI, 2001: 17). What is most important about all these socio-economic developments is, in our context, the autonomous impact they exert on the physical as well as the cultural survival of local cultural communities world-wide. What threatens e.g. the survival of Lesotho’s village communities is not cultural alienation of their migrant workers by their confrontation with modernity in the South African mines. Periodic migration of the greater part of the male and the smaller part of the female population to South Africa and back again is for some 100 years now part and parcel of their cultural life. What really threatened them was the dismissal of many thousands of migratory workers by the mining corporations in the 1980s and after, which meant the end of transfer payments by the migrants, the end of investment of their wages in cattle and of most of the customs related to it (cf. Ferguson, 1994). Mutatis mutandis this holds true for all countries or regions with a significant proportion of migratory labour all over the world – and such are most of today’s peripheral countries, from Zambia or Mosambik to Sudan or Burkina Faso, from Mexico to Brazil, from Nepal or Bangla Desh to the Philippines.5 The consequence is: socio-economic redistribution and cultural recognition are still two equally valid and indispensable requirements of a just world. The hope that local cultural communities may be able to resist or overcome the destructive tendencies in global capitalist expansion by their hybridizing power, their capacity to adapt just those foreign influences that fit into their own culture and to transform or refute all others, overlooks the harsh realities of world-wide socio-economic inequality. They won’t disappear when Maggi-cubes are spiced or (to quote some other famous examples) when Maroccan girls in Amsterdam are trained in Thaiboxing or Mexican pupils dress in antique gowns and dance in the style of Isadora Duncan (cf. Pieterse, 1998: 101). In addition, we have to maintain with Nancy Fraser: socio-economic redistribution and cultural recognition are irreducible. This idea, of course, is strictly denied by Axel Honneth in his controversy with Fraser. His major argument is that in capitalism the idea of ‘individual achievement’ has become the dominant prinicple regulating the amount of cultural recognition an individual earns. Struggles for 5

Cf. e.g. Ferguson 1999 for Zambia; Amin 1976 for Burkina Faso; Pries 1996 for Mexico

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socio-economic redistribution are therefore, in reality, “struggles about the legitimacy of the respectively practised utilization of the achievement principle” (Honneth, 2003: 158). The dominancy of this principle has the effect that all economic processes whatsoever can possibly find “normative consent” and are, therefore, “culturally embedded” (ibd.: 167). Fraser objects that though the premise that all markets are culturally embedded is correct, it doesn’t follow that they are “completely subjugated to the dynamics of recognition” (Fraser, 2003: 248). If the complete staff of a German shipyard or a Zambian coppermine that went bancrupt as a consequence of some opaque decreases in demand or increases in supply at the world market, is dismissed, this is definitely not a question of the staff’s individual performances and cannot be justified by the achievement principle. And if they, then, are unemployed for months or years they will, indeed, probably see this as a denial of recognition and suffer from it. But that is, surely, not all about it. For many people in the so-called First World and much more in the Third and former Second, who share this destiny, it means poverty, hunger and undernourishment, miserable habitation, frequent illnesses without a chance for adequate medical treatment and often the necessity to risk their lives on the illegal labour market. And these purely physical hardships are truly sufficient reasons to be discontented and to regard the world-market relations, which are responsible for them, as unjust – wether they imply a denial of recognition or not. The strategic consequences are equally important. For Honneth, only intentional, personally accountable agency can be unjust, impersonal systemic states or processes cannot – social integration has absolute priority over systems integration (Honneth, 2003: 288). But that is absolutely implausible. Structural unemployment, e.g., is usually regarded as unjust by the unemployed, but it’s causes are to be found in anonymous, impersonal systemic processes. Strategies aiming just at changes in intentional, personally accountable agency are bound to fail in any struggle against such systemic injustices. Moral appeals, antidiscrimination laws or quota regulations e.g. may be of some help in a struggle against sexism or racist segregation in schools, universities or parties; in the above mentioned case of a bancrupt factory or mine dismissing its complete staff, they would be absurd. The strategies that are adequate in the struggle for socio-economic redistribution may be inadequate in the struggle for cultural recognition and vice versa – though both are necessary and justified. And, again, there is no stable hierarchy between both of these principles; in one situation redistribution may be of higher relevance, in another one it may be recognition. Reflexive weighing up is what is required.

4

A measure for evaluation

Now, unfortunately, the call for reflexivity is not all that much helpful as a rule for judging the respective value of specific principles, identities or cultural practices. Can’t we find any measure that could serve as a sort of guideline for reasonable solutions in that process of reflexive rehearsal? Here, Taylor’s argument gains

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relevance. What the members of local cultural communities or subaltern categories demand in their struggles, is, that their ways of life are accepted as of equal value by the dominant majority. But what can this “as of equal value” mean? Do we really owe all cultural practices equal respect – in spite of the fact that some of them are completely incompatible with our worldviews or values or even inhuman in our view, like e.g. capital punishment, female circumcision and infibulation, or slavery. Taylor’s answer is: what we owe all of them is “the presumption … to be of equal worth” (Taylor, 1992: 66). It is a violation of justice, if a minority culture is a priori declared despicable by the dominant majority. But the imperative presumption of their equal worth is only a “starting hypothesis”; the “validity of the claim has to be demonstrated concretely in the actual study of the culture” (ibd.: 67). The appropriate methodology for this test Taylor finds in hermeneutic procedures, especially in Hans Georg Gadamers “Wahrheit und Methode” (1960). First, we have to learn to understand what the others mean by their strange and unfamiliar conceptions of what it is to be of worth, i.e. to comprehend what makes them reasonable in their view. “We learn to move in a broader horizon, within which what we have formerly taken for granted as the background to valuation can be situated as one possibility alongside the different background of the formerly unfamiliar culture” (Taylor, 1992: 67). Ideally, a “fusion of horizons” takes place and this provides the basis for a new, a substantiated judgment – which may turn out this way or that, positive or negative. Thus, he thinks, a way out of the traps of a prejudicial disapproval of everything foreign as well as of its uncritical glorification can be found. And I agree – though here again we should beware of Taylor’s essentialism: since all cultures are contradictory, heterogeneous, hybrid, open and historical entities, valuation as well as protection or controlling can and should never extend to cultures as wholes but only to particular cultural practices of particular people. Furthermore we should beware of his obsession by the idea of the state as the sole guarantor of justice which time and again seduces him to regard the state – more precisely the hegemonic states of the West – as a sort of umpire entitled to evaluate all cultural communities world-wide. But these have at least the same right to judge our values – and our states – as we have to judge theirs. And it is not only them, not only foreign “communities” who have that right; the individual members of the hegemonic societies also have it, and, given the contradictory character of each and every culture, they sometimes have no choice but to do it – just as those of other communities also. As far as identity formation is concerned, Taylor puts the highest emphasis on its dialogical character. But as soon as he turns his attention to hermeneutic methodology, he completely forgets about dialogues – in sharp contrast to the further development of hermeneutics in e.g. Jürgen Habermas, Albrecht Wellmer, Sheila Benhabib or Nancy Fraser. Here, dialogues occupy the central place in method as well. The basis is in all of them a procedural conception of truth, rightness and rationality of a similar sort as the one Jürgen Habermas has developed – though not always consistently employed. As “true” or “rational” or “right” we accept those judgments that have been corroborated in argumentative discussion between all

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those concerned, in a discourse where only the famous “strangely unconstraining constraint of the better argument” (Habermas, 1971: 131) counts – and no other constraint whatsoever –; and where the sole permitted measures of critique are those on which the quarreling partners can find consent in argumentative discussion (Wellmer, 1985: 109). What Fraser and Benhabib emphasize much more energetically than Habermas, is, that these dialogues have to be real ones, not only hypothetical ones, if we want to reach substantiated judgments; the voice of the other must really be heard, otherwise it cannot be ensured that his standpoint is represented in an undistorted manner. To be sure, Habermas’ construct of a discourse free of all extra-argumental constraints is an idealtypical one, a supposition that will always remain contrafactual. It implies not only that all participants renounce all forms of extra-argumental constraint inside the discourse. It equally presupposes open and unrestricted access of all those interested and equal rights for all participants. But – though it is contrafactual – we have to make this supposition in any discourse aiming at truth or rightness since it is the only measure we have to distinguish between an authentic and an unauthentic consent. Therefore, the norm results that all such discourses are organized in a way that approaches the idealtypical construct as closely as possible. There has been some argument as to the question of wether this conception of rationality is or can be an exclusively procedural one. In my eyes, one presupposition regarding content is, indeed, implicitly made in it, namely, that it is really universally accepted that the better argument is the sole measure of rationality, truth and rightness. At the level of manifest consciousness this is surely not the case – dogmas and bans on certain ideas or arguments are everywhere the rule rather than the exception. But at a deeper level, the level of buon senso as contrasted to senso commune (to quote Gramsci 1974), I am sure, things look different. At the bottom of their consciousness all people in all cultures know that “rational”, “true” or “right” is not what has the strongest bat, but what has the better argument at its side. They may time and again bow to the stronger bat, but that is, than, as the saying goes, “against their better knowledge”. This presupposition of content is, as I tried to say, one that is of necessity implicitly contained in the procedural approach insofar as it claims to be of universal, transcultural validity. But it is the only one. All others are suspect of imposing specific values of particular cultures on all the others – at least as long as they haven’t stood the test of an argumentative discussion free of all extra-argumental constraints. Charles Taylor’s is a typical case. He is aware of the dangers of that imposition and even acknowledges that “Western liberal societies are thought to be supremely guilty in this regard, partly because of their colonial past, partly because of their marginalization of segments of their [own] populations” (Taylor, 1992: 63). Yet in spite of that he espouses a variant of liberalism that “can’t and shouldn’t claim complete cultural neutrality. Liberalism is also a fighting creed” (ibd.: 62). As such it is defined by “a certain number of distinctions” it has to make – “between what is public and what is private, for instance, or between politics and religion” (ibd.). And these distinctions are unnegotiable. Is he really aware of what

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that implies? The borderline between what is public and what is private is in capitalist society that which separates, at one hand, the realms of politics and the market, which are ideally subject to democratic decision-making and exchange of equivalents, and, at the other hand, the realms of the household and the factory, which are not. So, the distinction immunizes despotic structures inside the latter ones against any criticism (cf. Kößler, 1993). In classical capitalism democracy ended outside the “private spheres” of the factory and the household. Neither the sexual division of labour obligating women to provide unpaid labour inside the household was open to democratic discussion, nor were the decisions on production and investment in the factory or the distribution of the value created into profits, wages and capital maintenance. All this, foreign or subaltern or minority cultures have to accept a priori in Taylor’s view to get alone the chance to be accepted as dialogue partners. Here, his “multiculturalism” is barely distinct from the usual hegemonic imposition of specifically Western values on all the others – just that, what is rightly attacked by the post-developmentalists in their critique of the development discourse.

5

Conclusion

The idea that local cultural communities as such are a sort of last refuge and efficacious counterweight to destructive globalization, capitalist expansion, or mass culture is an unwarranted myth – in all its varieties. There just isn’t such a thing as “the” local cultural community, there are all sorts of them, reactionary ones, revolutionary ones, pragmatic ones and many others. And none of them conforms to the substantialist and harmonistic concept of culture all the varieties of the myth share. Yet local cultural communities are – like all cultures – not discrete, integrated, ahistorical and ontologically separated, but overlapping, contradictory, permanently changing and man-made entities. The consequence is that the individuals in all of them are complexely constructed through different categories and identities. If one of those wins predominance, the others are silenced. In the worst case – which is quite often realized – this may lead to coalitions between the locally dominating and the world-wide ruling powers. In other cases it may induce the silenced ones to unite behind the dominating ones in the interest of the struggle against those world-wide powers – and partly to renounce their own interests for the time being; but that can only be a temporary solution. Wether it is a solution at all, can be found out only by reflexive weighing up of one identity against the others. A second deficiency all the varieties of the myth share is their culture-theoretical monism. It is not the development discourse as such which is responsible for all the plight and discrimination of the people living in the local cultural communities of the South; and it is not just the lack of recognition they find in the world wide dominating Western value system. It is, first of all, the exploitative capitalist world system – and that is much older than the development discourse; and it is of a ma-

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terial facticity that quite often overrules all the proclaimed Western values, like e.g. Honneth’s ominous achievement principle. Socio-economic redistribution and cultural recognition are two equally valid and indispensable requirements of justice. Which one is of higher importance in the concrete situation can, again, be found out only by reflexive weighing up of one against the other. To find a sort of guide-line for all this reflexive weighing up we have to resort to a methodology which, to make use of Carlos Pereda’s lucky formulation, “binds rationality to the ‘adventure’ of argumentation” (Pereda, 1993: 129). The test case for the rationality of any judgment is a discourse free of all extra-argumental constraints. These dialogues have to be real ones, not just hypothetical ones. And the only presupposition of content they have to make, is, that it is really universally accepted, that “rational”, “true” or “right” is not what has the strongest bat, but what has the better argument at its side.

Bibliography Achebe, Chinua (1978). Arrow of God. London/Ibadan/Nairobi/Lusaka Achebe, Chinua (1979). Things Fall Apart. London/Ibadan/Nairobi/Lusaka Amin, Samir (ed.) (1974). Modern Migrations in Western Africa. London Anderson, Benedict (1983). Die Erfindung der Nation. Frankfurt/M Barnet, R.J. (1994). Global Dreams: Imperial Corporations and the New World Order. New York Beck, Ulrich (1996). “Das Zeitalter der Nebenfolgen und die Politisierung der Moderne“. In Beck/Giddens/Lash (eds.). Reflexive Modernisierung. Eine Kontroverse. Frankfurt/M 19-112. Beck, Ulrich (ed.) (1998). Perspektiven der Weltgesellschaft. Frankfurt/M Benhabib, Seyla (1995). Selbst im Kontext. Frankfurt/M Binsbergen, Wim v./ Dijk, Rijk v.(eds.) (2004). Situating Globality. African Agency in the Appropriation of Global Culture. Leiden/Boston Bourdieu, Pierre (1998). Praktische Vernunft. Frankfurt/M Brecher, J./ Costello, T. (1994). Global Village or Global Pillage. Boston Carstairs, Morris (1986). The Twice-Born. London Clifford, James (1988). The Predicament of Culture. Cambridge/Mass. Dirlik, Arif (1996). “The Global in the Local”. In Wilson, R./ Disanayake, W. (eds.): Global/Local. Cultural Production and the Transnational Imaginary. Durham. 21-45 Esteva, Gustavo/ Prakash, Madhu (1997). “From Global Thinking to Local Thinking”. In Rahnema, M./ Bawtree, V. (eds.) The post-development reader. London: Zed Books. Ferguson, James (1994). The Anti-Politics Machine. ‘Development’, Depoliticization and Bureaucratic Power in Lesotho. Minneapolis Ferguson, James (1999). Expectations of Modernity. Myths and Meanings of Urban Life on the Zambian Copperbelt. Berkeley

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Fraser, Nancy (2003a). “Soziale Gerechtigkeit im Zeitalter der Identitätspolitik“. In Fraser, N./ Honneth, A. Umverteilung oder Annerkennung? Eine politischphilosophische Kontroverse. Frankfurt/M Fraser, Nancy (2003b). “Anerkennung bis zur Unkenntlichkeit verzerrt“. In Fraser N./ Honneth, A. Umverteilung oder Annerkennung? Eine politisch-philosophische Kontroverse. Frankfurt/M Fraser, Nancy/ Honneth, Axel (2003). Umverteilung oder Anerkennung? Frankfurt/M Friedman, T.L. (1999). The Lexus and the Olive Tree: Understanding Globalization. New York Gadamer, Hans Georg (1960). Wahrheit und Methode. Tübingen Gramsci, Antonio (1974). Quaderni del Carcere. Vol. II. Torino Gutman, Amy (1992). “Introduction“. In_Taylor, Charles et al (eds.) (1992). Multiculturalism and the Politics of Recognition. Princeton Habermas, Jürgen (1971). "Vorbereitende Bemerkungen zu einer Theorie der kommunikativen Kompetenz“. In Habermas J./ Luhmann, N. Theorie der Gesellschaft oder Sozialtechnologie. Frankfurt/M Habermas, Jürgen (1981). Theorie des kommunikativen Handelns. 2 vols. Frankfurt/M Hall, Stuart (1991). “The Local and the Global”. In King, A.D. (ed.), Culture, Globalization and the World-System, Basing-stoke: Macmillan . pp. 19-39. Hall, Stuart (1991). “Old and New Identities”. In King, A. D. (ed.), Culture, Globalization, and the World System, London: Sage, pp.19-39. Hannerz, Ulf (1996). Transnational Connections. Culture, People, Places. New York Hauck, Gerhard (1996a). “Odysseus, Okonkwo und die ’primitive Gesellschaft’ der Soziologen“. In Hauck, G.. Evolution, Entwicklung, Unterentwicklung. Gesellschaftstheoretische Abhandlungen. Frankfurt/M, 43-63 Hauck, Gerhard (1996b). Kaste und Klasse im ländlichen Indien. In: Hauck, G.. Evolution, Entwicklung, Unterentwicklung. Gesellschaftstheoretische Abhandlungen. Frankfurt/M, 176-204 Hauck, Gerhard (2003). “’Universelle Vernunft’ oder ’Inkommensurabilität der Sprachspiele’ – Popper, Habermas, Foucault, Lyotard“ In. id. Die Gesellschaftstheorie und ihr Anderes – Wider den Eurozentrismus der Sozialwissenschaften. Münster, 135-150 Hauck, Gerhard (2006a). Kultur. Zur Karriere eines sozialwissenschaftlichen Begriffs. Münster Hauck, Gerhard (2006b). “Multikulturalismus, Umverteilung, Anerkennung. Vom Unbehagen in der Vielfalt der Kulturen.“ Peripherie 104, 415-433 Hobsbawm, Eric/ Ranger, Terence (eds.) (1983). The Invention of Tradition. Cambridge Homer (1970): Ilias. Stuttgart Homer (1970): Odyssee. Stuttgart

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Honneth, Axel (2003a). “Umverteilung als Anerkennung“. In: Fraser N./ Honneth, A. Umverteilung oder Anerkennung? Eine politisch-philosophische Kontroverse. Frankfurt/M Honneth, Axel (2003b). “ Die Pointe der Anerkennung“. In: In Fraser N./ Honneth, A. Umverteilung oder Anerkennung? Eine politisch-philosophische Kontroverse. Frankfurt/M 271-305 Kappel, Robert (2003). “Kirschen und Kerne. Welche Entwicklungsländer sind Gewinner und welche Verlierer auf dem Weltmarkt.“ Peripherie 90/91, 232262 King, Anthony D. (ed.) (1991). Culture, Globalization and the World System. Binghamton Kößler, Reinhart (1993). Despotie in der Moderne. Frankfurt/M Lévi-Strauss, Claude (1968). Das wilde Denken. Frankfurt/M Lévi-Strauss, Claude (1970). Mythologica. 4 vols. Frankfurt/M Loimeier, Roman/ Neubert, Dieter/ Weißköppel, Claudia (eds.) (2005): Globalisierung im lokalen Kontext. Münster Lyotard, Jean F. (1986). Das postmoderne Wissen. Graz Mahabharata. Indiens großes Epos (1984): translated and consolidated by Biren Roy. Köln McIntyre, Alasdair (1995a). “Ist Patriotismus eine Tugend?“ In Honneth, A. (ed.). Kommunitarismus. Frankfurt/M, 84-102 McIntyre, Alasdair (1995b). Der Verlust der Tugend. Frankfurt/M Mead, George Herbert (1962). Mind, Self and Society. Chicago Nelson, Samuel (1994). Colonialism in the Congo Basin 1880-1940. Athens/Ohio Nuscheler, Franz/ Messner, Dirk (2003). “Reformfelder zur Weiterentwicklung des internationalen Systems.“ Nord-Süd Aktuell 3, 423-439 Pereda, Carlos (1993). “Zwei Modelle aufgeklärter Vernunft“. In Menke, C./ Seel, W. (eds.). Zur Verteidigung der Vernunft gegen ihre Liebhaber und Verächter. Frankfurt/M Pfaff-Czarnecka, Joanna (2005). “Das Lokale im entgrenzten Wettbewerb“. In Heintz, B./ Münch, R./Tyrell, H. (eds.). Weltgesellschaft. Stuttgart, 479-500 Pieterse, Jan N. (1998). “Der Melange Effekt“. In Beck, U. (ed.). Perspektiven der Weltgesellschaft, Frankfurt/M, 87-124 Popper, Karl R. (1958). Die offene Gesellschaft und ihre Feinde. 2 vols. Bern Pries, Ludger (1998). “Transnationale soziale Räume“. In Beck, U. (ed.). Perspektiven der Weltgesellschaft. Frankfurt/M.: Suhrkamp ., 55-86 Rahnema, Majid (1997). “Development and the People’s Immune System”. In Rahnema, M./Bawtree, V. (eds.) The Post-Development Reader. LondonNewYork: Zed. 111-131 Rahnema, Majid/ Bawtree, Victoria (eds.) (1997). The Post-Development Reader. London Randeria, Shalini (1994). “Hindu-Nationalismus. Aspekte eines Mehrheits-Ethnizismus“. In Kößler, R./ Schiel, T. (eds.). Nationalstaat und Ethnizität. Frankfurt/M

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Randeria, Shalini (2004). “Verwobene Moderne. Zivilgesellschaft, Kastenbindungen und nichtstaatliches Familienrecht in Indien“. In Randeria, S./ Fuchs, M./ Linkenbach, A. (eds.). Konfigurationen der Moderne. Diskurse zu Indien. Baden Baden Rostow, Walt W. (1960). Stadien wirtschaftlichen Wachstums. Göttingen Sachs, Wolfgang (1997). “The Need for the Home Perspective”. In Rahnema, M./ Bawtree, V. (eds.). The Post-Development Reader. London-New York: Zed Taylor, Charles (1992). “The Politics of Recognition”. In: Taylor, Charles et al (eds.) (1992). Multiculturalism and the Politics of Recognition. Princeton von Glasenapp, Helmut (ed.) (1959): Bhagavadgita. Stuttgart Wellmer, Albrecht (1985). Zur Dialektik von Moderne und Postmoderne. Frankfurt/M Wienold, Hanns (2005). “Post Mortem für eine heilige Kuh“. In Seim, R. (ed.) Mein Milieu meisterte mich nicht. Festschrift für Horst Herrmann. Münster WSI - Wirtschafts- und Sozialwissenschaftliches Institut der Hans Böckler Stiftung (2001): Zur Einkommensentwicklung in Deutschland. Düsseldorf

Under the Spell of Society. Systems Theoretical Perspectives on Justice Thore Prien

“I have really no other desire but for the world to be set up in such a way that human beings are not its superfluous appendages but that – in the name of God – things should exist for the benefit of human beings, and not that human beings should exist for the benefit of things which, to be sure, were made by human beings themselves” (Adorno/Gehlen, 1975; 249).

Those were the words that burst out of Adorno’s mouth during a debate produced for a radio broadcast in 1965. His interview partner, the conservative sociologist Arnold Gehlen, the theorist of deficiency and relief (Entlastung), could not be talked out of the notion that the institutions were “harnesses of the human inclination towards decay” (Adorno/Gehlen, 245) and were thus consciously changeable only at the price of decay. Adorno, in contrast, insisted that responsibility and selfdetermination were a condition of objective happiness.1 Now, that statement of Adorno appears to raise the very question which initiates the sociological contemplation of justice. The burdening heritage of Hegel’s diagnosis that human beings witness modernity as a process of diremption is preserved here. It is the relations between human beings that have been dirempted and have been held together only by the thin string of positive law and private interests ever since the bourgeois society burst into being. Also, identities have been thus dirempted which are being whirled about in the bourgeois society as subjects, family members, persons, citizens and human beings (cf. Hegel, 1986; 348). Justice, if understood in this way, is an institutional problem. It can be experienced only through and against the institutions of an unjustly configured society. This is what Adorno means, putting his veto against any prematurely sounded note of triumph at the very conceivability of justice when in the Minima Moralia he writes that injustice was the medium of true justice. The condition for justice to be possible is thus the empowerment against “the predominance of conditions over human beings, who virtually are the disempowered products of those conditions” (Adorno, 1997a; 9). Yet, for sociologists what has lost in plausibility is that kind of access to the “specifically social” (ibid.) which for Adorno is a characteristic feature of that 1

As to the core of this debate: Brunkhorst, 1990, 37ff; a revealing critique of the ostensibly related, yet incompatible criticism of modernity by Adorno and by Gehlen is provided by: Thies, 1997.

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predominance, and through which all those faits sociaux (Durkheim) are to become apparent as a determinable physiognomy which impart themselves through a “world connected by exchange relationships” (Adorno, 1997b; 273f.). The condition of justice would then, indeed, be the possibility of answering the question that arose anew with Marx, namely whether the “definite social relation between men” will always be governed by the notion of commodity fetishism and, accordingly, is bound to assume the “form of a relation between things” (Marx, 1976; 165), and whether this “spell will not at some time dissolve” (Adorno, 1997a; 19). Systems theory denies this approach to the problem of justice, both to itself and to sociology. The gate appears to be wide open for dispensing with a systems theory-based settlement of the problem as is applied by Adorno, for the very reason that because of the reference to the commodity fetish and to the commodity form would apparently leave the primacy of establishing the notion of society as a theme to the field of economics in a one-dimensional way. For the understanding of the non-circumventable prerequisites of functional differentiation will not permit the discerning of a system that determines the rest of society, and with it the setting of the unity of society “pars pro toto, just like Aristoteles and Marx” (Luhmann, 1991b; 79). What would not be achieved by applying this pars pro toto and would turn the theories of the bourgeois society into a, by now obsolete, offspring from the era of Hegel and (just even) Marx “is a new type of society system in which each structure is allocated a higher degree of selectivity and improbability, and thus needs to be determined anew” (Luhmann, 1991b; 79). But it is not that simple to do away with a spell of society that is determined by the commodity form. The point that his notion of society with its turn towards exchange relationships was lacking in complexity cannot be made against Adorno (cf. Breuer, 1992). The ban of society is a functionally differentiated ban for Adorno, too. For Adorno, “it is not possible to immediately understand … nor … to drastically verify” the notion of society … “just for the sake of its functional determination” (Adorno, 1991a; 10)2. As per economic determination, it is thus withdrawn from the model of base/superstructure, and the reference to the exchange relationship may establish an abstraction towards the notion of form, by which the unity of society becomes apparent.3

2

3

Here Adorno approaches the functional determination of society in two ways. His first approach is the notion that society may be defined only by means of the functions that are accomplished in it, an approach which he – at this point, at the entry “society” – justifies somewhat simply with “the unity of the functions that are accomplished by its members” (Adorno, 1991a; 10). Secondly, he thinks of the function which befits the notion of society for society, i.e. the society of society, the “self-description” (Luhmann) of society by society as an ideology (cf. Adorno, 1987). And where the analysis of autonomous functional spheres of society may set in. Concerning the current law, cf. Buckel, 2007, in particular 226ff, and as for politics cf. Wissel, 2007; 48ff. Not least, money is also the starting point for Parson’s and Luhmann’s considerations of the symbolically generalized communication media.

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So it is not the assumption of a primacy of economics which – in the eyes of Luhmann – makes Adorno’s argumentation skirt around the functionally differentiated society. Rather, it is Adorno’s never quite extinguished hope that society may – as winding and unfathomable the paths pursued may be – be reached by a criticism which may help – beyond “unfettered doing, of uninterrupted creating, of chubby-cheeked insatiability” – to open up “lines of escape” (Adorno, 1980; 176) that show a way out of the ban. In contrast, “prudent enlightenment” – which is how Luhmann (1991a; 67) sees his sociology – perceives sociologically disguised blindness to be at work even in the very insinuation that society is to be identified as “a universal block, formed around humans and in humans” (Adorno, 1997a; 19). The fact now that the notion of society is supposed to rise from an emancipatingly interpreted criticism alone4 constitutes for Luhmann the definite Fall of Man, as it were, of the Frankfurt school of sociology – no matter if criticism may still be conceivable at all under the conditions described by Adorno or if other ways have to be taken into consideration in order to reach society, as advocated by Jürgen Habermas, for example. Because, as Luhmann (1991a; 77) argues, “only systems may serve as the media of enlightenment” and enlightenment may then just observe as to how and under which conditions the systems resort to differentiation, and as to how and under which conditions the systems adjust their semantics.5 For Luhmann, the search for justice as a solution of the social ban remains to be seen from the viewpoint of an “first-order observer”6, which can only offer a “competing description of society” but cannot accomplish sociological enlightenment (Luhmann, 1997; 1115f.). Because when viewed in the clarity of light, society, being a hyper-com-

4

5

6

So Adorno replies to Popper in the context of the positivism dispute: “The experience of the contradictory character of social reality is not a random starting point but rather the motive that constitutes the possibility of sociology in the first place. Society turns into a problem … only for those who are capable of having a different notion of society” (Adorno, 1997d; 564). At least the second sentence of that quotation could have been said by Luhmann, too. It is interesting that both Adorno and Luhmann describe the system of art (which is the decisive system for Adorno) in an, at first, astonishingly similar way, despite these insurmountable differences as to the demands on theory; cf. Brunkhorst, 2008; 54f. According to Menke (2008; 96 footnote 7) Luhmann at this point misses the purpose of sociological criticism if he dismisses it as a mere know-it-all attitude (cf. Luhmann 1997; 1115f.) which provides nothing but a “competing description of society” and then has to try and explain “why others are not of the same opinion, but rather describe society in a different way in the delusionary context of their interests” (Luhmann; 1997; 1116). Accordingly, I resort to Menke’s reconstruction of the systems theory argumentation when, below, I compare thinking in the context of criticism with thinking in the context of the paradox.

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plex, poly-contextural and heterarchic7 system, removes itself from such criticism as Adorno intends to apply.8 From the viewpoint of systems theory, society is a hyper-complex structure, as the already existing complexity of our modern society is multiplied in countless observations and self-descriptions of the systems, and as there are “a lot of competing descriptions of that complexity within the complex system of society” (Luhmann, 2001b; 285f.). It is poly-contextural because the world, reality and society are generated anew and differently in each context. Because “observations take effect on observations only, … only differentiations may transform into other differentiations” yet never “touch objects of the environment”, it is not possible to escape from that polycontexturality by applying the terminological prerequisites of systems theory: “Any observation of the environment needs to be carried out as an internal activity by means of an internal differentiation (for which there is no corresponding feature in the environment)” (Luhmann, 1997; 92). And finally, society is heterarchical because it “owes its own efficacy to the autonomy of functional systems” (Luhmann, 1997; 1084), which is incompatible with any kind of central control. This society has no tip and no center. No functional system, no philosopher, no imperialism, and no sociologist may be obliged, or oblige themselves, to provide information about that society as a whole. Those three steps illustrate that systems theory needs to abandon the search for a possibility of dissolving the ban even at the very point of the choice of the conceptual framework. The ban identified by Adorno makes no difference from the viewpoint of systems theory. What would have to ensue – so as to uncover again any conditions of emancipatory criticism, as precarious as they may be – is a debate at the level of terminology or, as is more frequently heard nowadays in a somewhat decisionistic wording, at the level of “theory design”. Yet, this would mean that any attempt at extracting these conditions of justice from a critically understood systems theory for the purpose of dissolving the ban would be abandoned all too quickly. In several essays, Gunther Teubner has recently made an attempt at arguing in favor of a theory of justice while not falling short of the differentiation level of systems theory. First, I am interested in learning about how Teubner considers the term of justice to be still applicable in the polycontexturally structured society (I). In the course of that (new) opening of a debate about systems theoretical perspective on justice, I am then interested in learning about how Teubner intends to further strengthen his point in favor of justice. For, while Luhmann integrates justice into a contingency formula of law (II), Teubner believes in the possibility of defining justice as a transcendence formula of law (III). If my criticism of that systems theoratically oriented, deconstructive exten7

8

That tripartition is applied by Fuchs (1992; 35ff.). Loosely followed by Luhmann, 1997; 866ff. Wagner (2005; 37) puts the difference between Luhmann and Adorno into a precise and concise formula: “Difference versus mediation; observed poly-contextural versus false mono-contextural reality”.

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sion of the contingency formula is reinforced (IV), one question remains – which I can only ask but not answer – namely, if it is not indeed necessary to take into consideration the effects that the conceptual framework of systems theory has on the possibility of talking about justice in the first place (V).

1

Ecological Justice

Gunther Teubner tackles the issue of justice from the viewpoint of a systems theory that considers itself as a critical theory, which sticks to the fundamental decisions taken by Luhmann on the one hand and “explodes” the conceptual frame of systems theory on the other (Brunkhorst, 2009, 450). The germ of the explosive substance is already present in the writings of Luhmann, for Luhmann himself does indeed see a criticism element anchored in systems theory, namely as a “reflection of the conditions for the possibility of second-order observation and its consequences for what may then still be our common world or a society allowing descriptions” (Luhmann, 1997; 1117). The critical intention of Teubner, which reaches even further beyond, is implicitly justified by the fact that the systems theory of Luhmann, too, was infected with some kind of methodological nationalism (cf. Beck, 2003) for a long period of time. Although Luhmann wanted society no longer to be defined as anything but a global society as early as in 1971 (cf. Luhmann, 1991s) he secretly followed – regardless of any differences as to the structure of the theory – the modernization paradigm of Parsons9, which was all too quickly prepared to put modernization, functional differentiation and inclusion together as one, and which forgot about the pathologies of (global) society hidden behind the exemplary success of functional differentiation in the welfare state. Among the resulting unfortunate consequences for systems theory, the one that seems to take up speed is the differentiation between inclusion and exclusion, which becomes evermore important in terms of the justice issue but yet remains unclarified for the time being. For it is only by perceiving the exclusion phenomena of global society (which, admittedly, have existed since the beginning of bourgeois society10) that it becomes clear that a differentiation between exclusion and inclusion, which a difference-based theory is bound to make, presupposes a type of inclusion “which defines the criteria for the “right” or at least “normal” form of social participation” (Farzin, 2008; 195). This is, however, contradictory to the systems theoretical variant of inclusion, for any sphere beyond social systems is hardly apprehendable through systems theory11 – and it is more than problematic 9

Cf. Parsons, 1985, above all. Cf. the impressive study by Davis, 2005. 11 According to Nassehi, 2008; 122: “If inclusion … means nothing else but the way of how social systems define human beings, of how they receive them in their space of relevance …, then exclusion defines the mechanism of how persons are not considered to be 10

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to follow Luhmann’s suggestion to assign to the differentiation between inclusion and exclusion “the part of a meta-difference … in some regions of our globe” (Luhmann, 1997; 632) which places itself before functional differentiation. Here, one may see a risk that – sociologically speaking – Luhmann’s differentiation between exclusion and inclusion amounts to belittlement, as it disguises the fact that exclusion phenomena will not sustain hope “simply for a turnaround” (Nassehi 2008; 128) by allowing themselves to be reverted to inclusion. Teubner’s approach to systems theory at least implicitly draws the necessary consequences and urges for an answer to the question as to how those who suffer in misery may be heard in the reality of our global society, which has been properly described by systems theory. For that reason, Teubner more clearly than Luhmann emphasizes the risks posed to people by the societal threat created through the machinations of self-expanding, unrestrained social systems. Unlike Luhmann, Teubner does not read systems theory’s banning of human beings to the environment of social systems to be primarily a warrant of freedoms gained for individuals, although he agrees with Luhmann in stating that only systems theory, based on this structure, actually takes human beings serious (Teubner, 2006; 333ff.). It is capable of doing so by “carefully” (Luhmann, 1995; 262) differentiating between the autopoeisis of social and psychic systems. For Teubner, that differentiation hides the deep and theoretically irresolvable ambivalence between the liberal appearance of people in the environment of systems and the alienation phenomena which necessarily accompany this appearance: “Systems theory is here coming close to theorems of social alienation from the tradition of social theory” (Teubner, 2006, 333). According to Teubner, this is in keeping with the (poly-contextural) times for two reasons: For once, because such alienation phenomena are not exclusively caused by economic reproduction. Rather, in terms of systems theory, it is found that there is a possible destructive effect because of all those communication cycles which become independent. Teubner states (2006; 338) “threats to human integrity from the matrices of the natural science, of psychology, the social sciences, technology, medicine, of the press, radio and television”. The decisive point is not the threat itself, but rather the fact that the lack of its controllability is inseparably intertwined with the same social evolution that makes global society possible in the first place. Yet, on the other hand – and this is the actual starting point of Teubner’s version of justice – systems theory is immune to securing for itself the possibility of reconciliation or to gain it by terminological deception in this threatening societal situation.12 For Teubner considers the fact that any sociologic search for justice relevant. Strictly speaking, those excluded must not be visible at all. … And who, indeed, would remain totally invisible?” 12 This resigning momentum of lacking utopia may indeed trigger the emphatic celebration of systems theory, as is illustrated by the discussion context of Jackson Pollock Bar (2001; 87f.): “Any alienation theory is based upon … the false magic of hope for reversibility of the structural state of society evolution, including its media technology. But: The disaster of modern society, including its deconstructions of any ideal and material

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leads into a balance of contradictory moments of society to be a common feature of any formation of a sociologic theory that is not following the systems theoretical enlightenment. Accordingly, so he maintains, justice runs along “divisional patterns” (Teubner, 2006; 332) , as it is perceived “as a problem of society´s internal division into unequal parts – or more dramatically, of its destructive cleavages, its power and distribution struggles, and its antagonistic conflicts” (Teubner, 2006; 331). For all the differences, Teubner sees in this a common link among the great social theories: Marx seeks justice by means of balancing, and this means: by abolishing the classes; Durkheim’s theory of the division of labor finds its balance in organic solidarity; and while Weber struggles with the problem of balancing the rationality spheres in the polytheism of the modern age, Parsons has conceptually integrated the balance in his AGIL pattern. In contrast, Teubner is able to refer to poly-contexturality – “one of the most confusing experiences of our age” (Teubner, 2008; 11) – as the starting point of systems theoretical enlightenment. Is it possible for the sociological contemplation of justice to bypass, without being damaged, this social datum of “the emergence of highly fragmented, intermediary social structures and of the drifting apart of interactive systems, formal organizations and social systems” (Teubner, 2008; 11)? At least for Teubner, that poly-contextural definition of the concept of society brings two interrelated consequences for the concept of justice: It may no longer be defined as a problem of balance as formulated in the society theories labeled as “divisional” by Teubner and, what is more, it loses its access to the overall system of society. So as to be able to speak sensibly of justice at all, Teubner suggests to turn away from the divisional patterns and follow an idea of justice that aims exclusively at the capability of the function systems to respond. The issue of justice should then no longer be treated as “an institutional justice despite a difference” but rather should be defined by the formula “institutional justice as a difference” (Teubner, 2008; 169). That, Teubner states, would be the only way to address functional systems at all, in view of the limits that keep recurring because of the fragmentation of society. substances, is irreversible and uncircumventable. … We are quite sure that systems theory is the best and probably the only anti-depressant. It teaches us about observation relationships, about distance and irony, about the contexts of being and meaning. It teaches us to differentiate between communication and souls. It teaches us about reality awareness and disappoints us in terms of our anthropomorphistic illusions … It teaches us to be (in the true sense of the word) theoretically astonished about ourselves and about our world and makes us take a step back from the narcistic subject awareness of “doing” and “being capable of doing”. Instead, it increases the difficulty of reflection; it demands that we should keep abreast of the evolutionary process regardless of any insult to our privileged humanistic position.” It is no coincidence that this proud identification with the aggressor is to be found in a booklet containing essays on the topic of “The enjoyment of humiliation – capitalism and depression”.

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This ecological justice as the only way of speaking of justice under the sign of poly-contexturality, however, goes to prove that this idea of justice is freed of any ambitions to address the overall system of society. According to Teubner, the polycontexturality concept needs to bring about the insight that ”the collision of today’s idiosyncratic worlds of sense excludes a dissolution by societal rationality, let alone by inter-societal justice” (Teubner, 2008; 12). Although those explanations do show how justice in the sign of poly-contexturality deactivates vast fields of previously applicable justice theories, they do not show whether this may mean more than a systems theoretical hint against feasibility illusions. It is exactly this added value that comes into play when Teubner draws the consequence from this that it is the “negative externalities of communication” that bring to bear “their potential to threaten mind and body” (Teubner, 2006; 335) which represents the actual threat to mankind. While the divisional tradition has always transferred humans as persons into society, it is now possible for Teubner to take humans seriously as an awareness and a body in the environment of the society, and to insist on “latent intrinsic rights” which existed “pre-socially“ and even “extra-societally”. Only by this is it possible to imagine that ”bodily pain and mental suffering no longer remain unheard in their speechlessness, but succeed in irritating society´s communication and provoke new distinctions here” (Teubner, 2006; 335) (and that also means: towards an unjust and threatening human rights debate). These “latent intrinsic rights” take effect as a kind of resistance against social communication if it “can be communicated as protest in forms of complaints and violence” (Teubner, 2006; 337). This resistance may result in a type of justice different from the one stated in the divisional concepts. Only these “latent rights of theirs” may force social systems to provide what Andreas Fischer-Lescano (2009; 68) describes as “a mimetic relation to extra-systemic reality”, and thus, by means of the protest of those who suffer, compel them to furnish a kind of justice that takes human beings seriously, rather than only the construct of ‘person’.

2

Justice: Contingency Formula of the Law

But what type of a social system of “law” is this if it induces us to resort to the not quite obvious term of mimesis so as to be capable of speaking of justice at all? At any rate, social theory has so far been capable of discerning the constitution of society as a whole, and thus the state of justice, by looking at the law: Hegel found the emphatic wording of law as Dasein der Freiheit; Marx associated law with the essence of relations of production in the bourgeois society, as law reflected the ownership structure, after all; Durkheim construed the organic solidarity from legal phenomena; and even Habermas, in the confusion of the post-national constellation, attempts to achieve a clarification of conditions through the law. What is decisive in the first place for the purpose of argumenting against that and, generally, for making plausible the demand for a new theory of justice, is not

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the systems theoretical observation that the law of global society has to lower its claims for overall coherence and cannot even maintain the unity projection that has always been associated therewith (cf. Teubner/Fischer-Lescano 2006). The decisive question is how that phenomenon of fragmented law has its bearing, then. Apparently, global society meets its enormous demand for regulations by applying the fragmented law of global society, without that law being still conceivable as an expression of the entire society. In this case, the obvious thing to do is to turn away from the assumption that law may be capable of acting as an integration mechanism of society, and to turn to Luhmann’s metaphor of the unwavering, self-referential machine instead. Legal validity is then supposed to mean nothing more and nothing less than “a symbol for the dynamic stability of the system” (Luhmann, 2004; 129). This weak systems theoretical concept of validity which, at first glance, seems to be freed of almost all the burdens of justification because of the tautological way it operates, points to an internal service rendered by the law itself which makes it turn a blind eye to any vetoes on behalf of justice: In blind communication, the law itself establishes its degree of effectiveness and does not depend on the claims for justice raised by its environment. Systems theoretical observation simply shifts the endlessness of the applicability justification to where it has to be processed: To the unity of the legal system: “Law is valid if it is signed with the symbol of validity – and if this does not happen, it is not valid” (Luhmann, 2004; 71), and it is this tautology which makes the processing of law possible in the first place. The fact that legal communication is linked to legal communication but not to other types of communication is made possible by the binary coding of lawful/unlawful, which serves the purpose of making order from noise, that is, of accessing the communication emanating from the environment. Asking one time too many the question as to the mystic reason for authority (Derrida, 1991) – which means for law to once again apply the differentiation between ‘lawful’ and ‘unlawful’ to itself – is something which law must deny itself so as to avoid coming to a standstill. And it is exactly this “blind spot” of the paradox of law (Luhmann, 2004; 182) that is to turn into the “creative principle” (Luhmann, 2004; 177) which forcibly brings about “the invisibilisation of the instable ground” (Fischer-Lescano, 2005; 21), yet makes it possible in the first place. For the very reason that law is unable to perceive its own paradox, it succeeds in passing off as a solid foundation the “shifting sand” upon which “the castles of global law have been built” (Fischer-Lescano 2005; 21). Justice, then, cannot mean anything else for law but a contingency formula which provides for “the representation of the unity of the system within the system”. So, justice at least remains as “the representation of the unity of the system within the system” (Luhmann, 2004; 213) to which the legal system commits all its programs. Yet, this reference to justice needs to be seen as a system-internal service and not in the sense of the “old European tradition” of a “social harmony” existing throughout society (ibid.), which would be plausible only if it could also be assumed for society as a whole to constitute itself through the law.

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With this analysis of the legal system, the concept of justice more and more loses its access to the environment of the legal system.13 Rather, justice as a contingency formula “can be put on a level at which it can be compared with the formulae for contingency of other functioning systems, such as (…) the principle of scarcity in the economic system” (Luhmann 2004, 214). That means nothing else but that for the legal system justice is not available as a selection criterion, just as scarcity does not provide criteria “for assessing the rationality of economic decisions” (Luhmann 2004, 217). For justice as a contingency formula, the only thing that counts is that “formulae of contingency install themselves and in so doing prove their own suitability for the system” (Luhmann, 2004; 216). What remains of justice is its use as any contra-factual, disappointment-resistant norm.

3

Justice: Transcendence Formula of the Law

Now, does this form of justice suffice as a mere contingency formula of the law? At any rate, one should wonder at the apparent ease by which Luhmann commits issues of justice to the adequate complexity of the legal system. According to Teubner, the insufficiency of the contingency formula reveals itself in that “the relationship with the environment may be mentioned but cannot be comprehended ‘systems theoretically’ but only asymmetrically, either from the internal perspective of the legal system or from the perspective of an external observer. The relationship between law and society itself, the translation of one system into the other, disappears in the blind spot of the system/environment differentiation. So, at best, this type of justice does justice to the legal system itself” (Teubner, 1999; 21). Now Teubner, who supports Luhmann’s diagnosis of a poly-contextural and hyper-complex society, can hardly mean that what should be done is to take external justice-related objections to the law. This criticism as to the insufficiency of the Luhmann contingency formula would, in the end, be tantamount to some form of immanent criticism. It would be a kind of criticism that is to be understood as immanent criticism for sure, because it measures the law against its own terms of equality, liberty and justice, thus seeing “in it its Other” “to which it enters into irreconcilable contradiction” (Menke 2008; 84). With this, though, this kind of criticism would turn into a crisis diagnosis of the law, as it can “imagine the immanence of the Other in the law only within the horizon of its transgression” (ibid.). Crisis diagnoses nourished by the indispensability of Utopia do, for example, measure the “evolutionary self-transcendence of law” against the “revolutionary self-transcendence of history” (Brunkhorst, 2009; 464) or – just as dialectically – they see, in the unfolding of the emancipatory potential of the law, the condition for the possibility of “leaving the juridic concept of democracy behind” (Buckel, 13

This becomes particularly clear when Luhmann (2004; 222) suggests “to assign the formula for contingency to the center of the legal system, to the core area of judicial decision making, because the paradox of deciding what cannot be decided is only relevant here”.

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2007; 316). In both cases, the law as exists here and today is part of the spell which is, indeed, expected to dissolve at some point in time, be it by “the emancipatory power of the constitution, which embodies the reason of the revolution” (Brunkhorst, 2009; 464) or by an emancipatory “counter-hegemonial democratic project” (Buckel, 2007; 317). In contrast, the thought of law as a paradox, as is applied by systems theory, does not recognize any ‘outside’, which in times of crisis – be it as an unconstraining constraint of the better argument, be it as history/materialism-based emancipatory movements – makes use of the inconsistencies of law and thus accesses the law from out of a different context. For because of the paradox, law contains “in itself its Other” as “the way in which the law exists, to which it owes its permanence, and even its stability” (Menke, 2009; 85). For that reason, Luhmann can reject the criticism of law and society, which recognizes the Other of the law within the law, yet approaches from outside. Luhmann could say: “The Other of the law is immanent to the law and, for that reason … takes on the form of law, much the same as law itself. Conceptually, it is impossible to draw a distinction between the law and its Other by means of criticism or in a crisis” (Menke , 2008; 96). To this extent, Teubner also follows the systems theoretical requirements14 but, in his criticism of the Luhmann justice variant, he also places the predetermined breaking point at that critical point of systems theory which is the paradox of law. The paradox of law – that much has become clear above – makes positive law possible and makes a stop for reflexion impossible, which would have to pause to ask about the legal foundations. And, even more: For Luhmann’s sociology in its entirety, the paradox is “the very condition of possibility of knowledge, of culture and of society in general” (Kastner, 2006; 173). It is particularly when the uncircumventable productivity attributed to the paradox by Luhmann is brought into light that one is surprised by the stringency which Luhmann is always willing to apply so as to dissolve the paradox. Teubner states that although Luhmann did “observe the world of law as a unity of the difference between law and non-law which necessarily ends in paradoxes” (Teubner, 1999; 211), upon closer scrutiny it became apparent that he refused to accept the consequences arising from the paradox shape of the law. After all, so he says, the pro14

Insofar, Brunkhorst’s (2009) embraces Teubner a bit too eagerly. Brunkhorst tries to bring together Teubner’s analysis of the fragmentation of the law, of the societal constitutions, up to the one of a transcendence formula of justice, with the argumentation of law revolution, which differs – and yet does not differ – from law evolution. To be sure, Teubner envisions a more sensitive dealing with the irritations from the environment on the part of legal system, as opposed to Luhmann’s variant of a merely cognitive learning of the legal system. But the question is whether the normativity which shines through in Teubner with Derrida in law will even remotely go together with the “higher-level reflective justifiability/non-justifiability” which, in addition, “requires speakers who ‘apply their own minds´ (Kant)” (Brunkhorst 2009, 462). Maybe at the end of a (very long) day. But Brunkhorst doubtlessly envisions that very type of criticism that appears to be impossible according to the thought of the paradox.

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ductive dealing of Luhmann’s sociology with the paradox consisted of “avoiding blockages of operation to invisibilise the paradox” (Teubner, 1999; 211). In doing so, Luhman would prematurely abandon the law paradox by leaving it to the immanence of the legal system: the positivity of legal actions and legal standards. Any judgment issued by a court means nothing else than to successfully overcome the law paradox; the institutions of law have always been a guarantee for dissolving the paradox. In contrast, Teubner wishes to set a strategy which contrasts the way Luhmann handles the paradox of law with a way of thinking that is more sensitive to the constituent character of the paradoxes: the deconstructivism of Jacques Derrida. As Teubner affirms in several contributions (cf. Teubner 1999, 2000, 2003, 2008), the reference to Derrida can then enlarge the systems theoretical concept of justice as a self-sufficient contingency formula of law by adding the deconstructivist momentum of the “specter of an insatiable justice” (Teubner, 2000; 241). This attempt was about having systems theory and deconstruction run mutually aground on their blind spots (Teubner, 2000). While, ironically, the paradox lies in Luhmann’s blind spot itself, since he is obliged to urge for a ‘de-paradoxing’ for the purpose of maintaining the system, for Derrida it is a “sociological blindness” (Teubner, 2000, 245) which forgets about the social structure while playing with signs and symbols. As for the insight into the possibility of justice in the functionally differentiated society, it is to be the blind spot of the systems theoretical observer that keeps decisive information from him. Teubner recognizes a “systems theoretical escape” (Teubner 1999; 202) from the paradox of the law in Luhmann’s one-sided approach to justice as a merely adequate and consistent decision-making standard in the legal system: “Although Luhmann identifies the decision-making paradox of the law, he then resolutely demands that it be hidden, denied, repressed, and that a de-paradoxing differentiation be introduced as soon as possible” (Teubner, 2008; 25). Derrida, in contrast, does not shy away from choosing the path to aporias, which arise when paradoxes remain visible. Resting on that non-management of paradoxes, deconstructive thinking can considerably change the way of dealing with justice in the law. Teubner (2008; 25f.) mentions three steps which could be used to follow Derrida’s thoughts far beyond the contingency formula of justice. The first step is about confronting the paradox experience instead of thinking of the paradox as being invariably dissolved. So, the law is sent onto a path where Luhmann can imagine nothing but “paralysis and horror” (Teubner, 2008; 25). If the paradox were maintained, justice in law would be more than the contingency formula, more than a self-made adequacy of law towards its environment that takes place in any decision. Justice, as an incessant affliction of positive law, would turn into a transcendence formula. Unlike the contingency formula, this transcendence formula of justice might, as Teubner states with Derrida, be best described by “claim, abyss, disruption, objection experience, chaos inside the law” (cf. Derrida 1991). In this context, law itself is supposed to be responsible for that objection

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experience, which is the essential difference between paradoxology and the external criticism of law as a crisis of law. The transcendence formula is a self-transcendence formula. The second step Teubner wants to take with Derrida against Luhmann’s obliviousness of the paradox approaches the answer to the question as to “what the self-transcendence of the law may mean at all” (Teubner, 2008; 25). This may be more closely determined in order for it to be distinguished from Luhmann’s contingency formula: The contingency formula, Teubner says, demands of the law a “self-transcendence towards its self-designed environment,” yet comes “to a halt there” (Teubner, 2008; 25). This is the tribute Luhmann has to pay because of his guiding difference, the distinction between system and environment. Luhmann knows only the re-entry as a “reconstruction of the outside within the inside” and can only see “what happens within the boundaries of the law”; he observes the law only when it has already digitalized the pertubations from the environment through its own distinctions (Teubner, 2008; 26). But in order to define the very essence of self-transcendence it is necessary to look for the “perturbing event itself” and for the “confusions and disruptions” (Teubner 2008; 26) which it triggers in law, and thus to recognize that what was so brashly excluded by Luhmann’s variant of re-entry demands that it be “admitted to justice” (Teubner, 2008; 26). It is here that Teubner sets in with Derrida by intending to join him on his journey through the desert beyond all meaning:15 The justice debate would be made possible by the very confusions and disruptions which Luhmann chose to ignore. This already takes us to the third step, which is about expanding the transcendence experience which Luhmann – quite in the old European manner – attributed only to the religion of society. Derrida’s deconstructive thinking, Teubner says, aims at “taking transcendence awareness out of its modern isolation in religion and at reintroducing it to the highly rationalized worlds of economics, science, politics and law.”16 15

As to the possibility of failure of meaning production, which the systems theory of Luhmann does not even know about: Stäheli, 2000; 64ff. 16 Now, if Teubner (2008; 26) continues by assuming that Derrida “just draws the consequence from the phenomenon – which is also accessible, and particularly so, to Luhmann – namely, that regardless of all that division of labor in society it is not possible to restrict knowledge to science; that processes of power take place even outside the sphere of politics; that the distinction between lawful and unlawful is applied outside the law, too, despite the formalisation of the legal system”, what does that mean for poly-contexturality as one “of the most confusing experiences of our age” (Teubner 2008a, 11)? And – without intending to reduce a priori the value of a deconstructivistic approach – is that “phenomenon” not based upon the fact that “the division of labor in society” appears to be thinkable only with symbolically generalised communication media (cf. Luhmann, 2001a) and that these cannot simply replace language (Habermas, 1981; 384ff.)? Necessarily, what is left then is a moment of communication by means of which the phenomenon described by Teubner could be quite more plausibly explained than by assuming, for example, that knowledge pervades the system of politics, politics pervades the system of

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“Transcendence experiences” could not be limited to religion, after all; rather, they would create their own effects in the “highly specialized worlds of meaning” (Teubner, 2008; 26). Teubner wants Derrida to be understood in such a way that, accordingly, “every modern institution knows its specific self-transcendence, which has different paradox effects” (Teubner, 2008). These are self-transcendences, as they spring from the different self-logics peculiar to those institutions which create “reference surpluses” and activate “utopian energies” (Teubner, 2008; 27). What would this reference surplus of law consist of? Which utopian energies of a justice beyond the law are released – released, as Teubner (2008; 25) further assumes, with “practical consequences for legal findings and decisions”? The observation of the paradox of law – that path is indicated by Derrida’s leading into the aporias of law – shows that the transcendence of law – and in this it would indeed go beyond Luhmann’s contingency formula – “starts where the law ends, at the hiatus between legal norm and legal decision”, where “the paradox of law emerges” (Teubner, 2008; 27). When properly seen, this results in the dramatic consequence that law can never be just; that, on principle, a just decision by the law is impossible. This paradox, which even justice as a contingency formula aims at, is now taken even further by Teubner with Derrida: The search for justice is “withdrawn from the boundaries of law” (Teubner, 2008; 27), since it begins only with the paradox of law – “Is it lawful to apply the distinction between lawful and unlawful to the world?” (Teubner, 2008; 27) – and has already ended where that paradox, as is the case with Luhmann, has always been dissolved in the law. And yet that paradox phenomenon still is (paradoxically!) the “specific boundary crossing of the law” (and not of economics, politics, art etc.) which cannot anymore be expressed in “the rational language of the law but only in quizzical language, unrealistic idealization, allegory, symbolization, literature, dream, delirium, utopia” (Teubner, 2008; 27). Any attempt to decode that language is made “in vain” (Teubner, 2008; 27 footnote 31). As positive law pushes the search for justice forward, yet is not capable of providing a solution, we would now need to look for other places where that search is at least being conducted. But this is hindered by the fact that it is supposed to be the specific experience of the law – and only of the law – that makes justice possible. The social environment of the law cannot comprehend that search for justice, as the search for justice remains something alien to them. At first, the arts, law pervades the system of economics etc., so as to dissolve this vast hotchpotch into transcendence formulas which, in the end, cannot transcend anything but communication. If, however, communication is transcended beyond the system boundaries, Luhmann’s strict separation between communication and relationships of understanding is no longer tenable. In contrast, there is no need for Luhmann to let himself be bothered by this phenomenon – “that knowledge may not be restricted to science” – since the coding of “true/untrue” does not refer to knowledge but to science.

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meaningfully communicated law is excluded as justice needs to be searched within the nonsensical, and even within the insane, and as it is performed as “an experience of the specific transcendence of the law, under the impression of which it must return to the immanence of the law” (Teubner, 2008; 27). Although, accordingly, the search for justice cannot take place within the medium of meaning, nor within the world of the law, nor anywhere else, Teubner at least makes an attempt at approaching the description of such a search. He bases that search in the transcendental area on the unfair treatment experience made by Michael Kohlhaas; on the words of Jesus: “…of righteousness, because I go to my Father and you see me no more” from the Gospel of John,17 and the philosophical transcendence of Levinas and Derrida of the “endless requirement of the one Other” (Teubner, 2008; 28). These borrowings from quasi-theological (or, in the case of Kohlhaas, where “a fortune-telling gypsy takes the lead in handling conflicting justice requirements” (Teubner, 2008; 27)) and mystic-romantic approaches to justice now arrive at their limits when Teubner approaches the specific features of the experience of law as an autopoietic system (Teubner, 1989) from the side where he assumes the blind spot of Derrida to be located. The search for justice remains restricted to the law; it means its “inner unrest”; it again and again exposes the law to “other experiences of injustice”; yet additionally – and this is the blind spot of Derrida – that transcending search is subject to continuation pressures when returning to the immanence of the law. Teubner identifies three different drastic restrictions required by the continuation pressure. Firstly, there is the pressure of decision: Come what may, a legal case must be decided sooner or later. The decision needs to be linked to the structures of the law and thus must remain “within the possibility sphere of the law, which is strictly delimited by the ‘lawful/unlawful’ code and its programs” (Teubner, 2008; 29). Then there are cognitive pressures: As daring and irrational as the search for justice in self-transcendence may be, the law has to apply rational reasoning, legal-technical argumentation, and a continuation-capable legal dogma. Finally, the pressure of rule production: Even if confronted with a highly unclear hotchpotch of circumstances, and regardless of the experience of the “internal endlessness of the human being”, the decision requires “the complex issues of a case to be reduced to a much too simple case norm” (Teubner, 2008; 30). According to Teubner, these pressures, which culminate in the “juridical Hic Rhodus” (Teubner, 2008; 31), are inevitably present in the search for justice. He says that what applies here is the “iron rule of legal action: criticizing without making a counterproposal does not count”, and this rule may be broken only at the price of “self-marginalization” in “ever-increasing irrelevance” (here, Teubner (2008; 30f.) thinks of the critical legal studies) or, as a denial of law, bypasses the

17

Buddhists probably will continue to have to make do with the contingency formula.

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justice of society as a whole and then engages in something like moral philosophy.18 Yet, according to Teubner, adherence to this iron rule is rewarded by the “extraordinary pressure for innovation”, the fostering of the “unfolding of creative energies”, which the “combination of high uncertainty” (self-transcendence) and “high determination” (continuation pressures) that occurs in the legal system is meant to enforce productively and ever anew. The re-entry of the imaginary space of law would then offer a “great chance for juridical construction phantasies” (Teubner, 2008; 31). After all, the going together of structural pressures and selftranscendence has its telos – which may come as a surprise both from the perspective of deconstruction and the perspective of systems theory – in legal systems that “prove” to be more just than others: “Juridical justice invariably needs to invent new legal standards, judicial acts and legal terms which are able to meet the requirement of supplanting the old formulas that are felt to be unjust. This introduces a comparative dimension to the law which permits – and even urges for – a differentiation between higher and lower degrees of justice. A legal system which is more just than others would then be a system that permits and fosters its self-transcendence into different dimensions of alterity more radically than others, but which also produces decisions, arguments and norms that prove to be more just than those of other legal systems” (Teubner, 2008; 31).19 18

Here, Teubner (2008; 31) thinks of Adorno, citing his demands for “concrete denunciation of the inhuman” and against “non-binding and abstract positioning, for example of human existence”, taken from Adorno’s Probleme der Moralphilosophie (Adorno 1996; 20f.). It is the very re-entry of the human being into the law that embodies that “non-binding and abstract positioning” which Adorno talks about. But according to Teubner, the search for justice cannot refuse this in such a way as is demanded by Adorno within a moral-philosophical debate. But if you follow Adorno in assuming – against the paradigm of polycontexturality – that the debates may, in principle, be translated into each other, then the search for justice in law as well as the moral philosophy will point to the same problem of theory and practice (cf. Adorno, 1977). If justice were, as Teubner assumes, reduced to the self-transcendence of the law, it would necessarily remain intertwined with a legal practice enforced ever anew by continuation pressures. Adorno’s (1977; 780) statement “The greatest hope for being implemented may be entertained for a theory that is not intended as an instruction for its implementation” would, at least, stand on feet of clay. 19 A more exhaustive quotation which, in my opinion, points to inconsistencies that arise from this quintessence: 1.) Here too, justice appears to have quite unbrokenly wandered into the immanence of the adequate complexity of the legal system, for how could it otherwise be possible to invent norms that are more just? (Or else: The obscure urge for justice would then indeed be linked so closely to the continuation pressures of the law that the distinction between transcendence formula and contingency formula would make no difference.). 2.) It is not obvious how, under the paradigm of poly-contexturality, specific legal systems are supposed to prove that they are more just than others. Where is that proof to take place? Certainly, Teubner does not discuss here his version of the mutual reflexivity of law and society, which sets itself apart from Luhmann (cf. Teubner, 1989, 81ff.). But with the possibility of having justice proven (by whom?) Habermas (1994;73ff.) puts the focus on the criticism of Teubner, who states that even according to

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Back to the Contingency Formula?

Teubner’s criticism of Luhmann’s version of justice as a contingency formula is based on the notion that – with reference to justice – there has to be something else in the legal system than the performance of an adequate adjustment of the system to its environment. Yet, if the strategy of finding blind spots in Luhmann’s and Derrida’s approaches and playing them against each other leads to such unclear results of transcendence, maybe then the decision in favor of a blind spot is justified? Luhmann, at any rate, has reasons for reorganizing the deconstruction and placing the paradox at the center of the law, but yet considering it to be invisible. In its self-description, as Luhmann puts it, the system affirms the value of “justice”, just as it equally does not doubt “that orientation by the distinction between legal and illegal is legal and not illegal”. Because: “That is its premiss.” (Luhmann, 2004; 460). Those who do not assume so need to ask themselves how, then, the system so placidly lines up one operation after the other. For the very purpose of assuming its functioning, Luhmann looks at the way the system deals with the paradox not as some mysterious machinations purported in the dark but as a successful “invisibilisation of the paradox” which, admittedly, “the system itself cannot operate them like that” (Luhmann, 2004; 461). It seems as if the legal system is made of simpler stuff than Derrida and that the blind spot Teubner has found in Luhmann is actually the blind spot of the system correctly observed by Luhmann. In and of itself it has no access to the issues which lead Derrida to the aporias of the law. What deconstruction considers to be the arbitrariness of any distinction is, accordingly, an arbitrariness that turns itself invisible for the system by taking on vast dimensions. However, deconstruction as an attempt to perceive the arbitrariness of any distinction, if it steps too firmly towards society and its functional systems, “one can then also deconstruct the deconstruction itself, by demonstrating that this step only leads to the paradox of the beginning or the paradox of the origin, which every system has dealt with in its past” (Luhmann, 2004; 461). The system itself is not capable of noticing the arbitrariness of the first distinction in its operations, nor of successfully invisibilising it in its self-descriptions20. So Luhmann is able to consider the movement of the deconstruction as an observation of the second order (cf. Luhmann, 2001b), although deconstruction – as opposed to the self-description of the system – may set insolvable problems for itself. In contrast, systems theory, as it knows about the topic of social evolution, may rise to an observation of the third order and put the question of the fundamental Teubner’s “assumptions, law maintains a hinge function between the system and the life world,” which in his opinion is “incompatible with the concept of an autopoietic encapsulation/sequestration of the legal system” (ibid., 77). 20 On principle, Luhmann assumes for any paradox that it does not refer to “the autopoietic operation but only to its observation” (Luhmann, 1997; 91).

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paradox, of the beginning of the legal system, at that spot from where “one can see the historical capacity for adjustment or the contemporariness of semantics” (Luhmann, 2004; 461). For Luhmann, too, deconstruction remains an adequate reaction of thought to the social disaster of poly-contexturality, and it performs “the deconstruction of the ontological prerequisites of metaphysics” (Luhmann, 2001b; 287) at the moment of uncircumventable insight into the constructive achievement of the many observers. Yet, this achievement keeps it linked to the observation of semantics21, any change of which may be explained only by the analysis of the social structure. This social structure, in turn, appears to Luhmann as so independent from semantics (cf. Stäheli, 1998; Stäheli, 2000; 184ff.) that the operation of its systems leaves no room for the deconstruction of its distinctions. If Luhmann were right, everything would support the notion that the search for justice, which Teubner assumes to exist, simply does not occur in the legal system. Does not the obligation to furnish proof continue to rest with Teubner as he makes out even the slightest traces of a search for justice in the law of global society? Where are the consequences of such a search to be observed? Despite of the entire host of errors caused by law’s self-transcendence entangled in the obscure urge, as postulated by Teubner, law is apparently perceived to be more and more confusing, but hardly more just. Teubner himself, as shown above, argumented that society does not leave room for the legal system to access the whole, and that as a conflict mechanism it faces the poly-contexturally designed society just as powerlessly as do other functional systems. Similarly, doubts as to the “practical conclusions” (Teubner, 2008; 25) which, according to Teubner, the transcendence formula is indeed supposed to provide for the legal system, may hardly stop the call for justice as Teubner understands it. The transcendence beyond the sense worlds of the law is simply beyond such an assessment, and the evil suspicion remains that – at least empirically22 – it is not possible to make a distinction between the effect of the “quasi-therapeutical relationship” which is supposed to be immanent in law under the transcendence formula (Teubner, 2003; 45) and the therapy that Luhmann recommends for law, namely the adequate adaptation to its environment. But even beyond empiricism, the search for justice remains questionable if Luhmann’s point against the movement of deconstruction in the system is substantiated. What Teubner identifies to be the blind spot of Luhmann and what takes him to the transcendence formula of law in the first place, means nothing else than 21

This is not meant to unmask the deconstruction, but it rather refers to what deconstruction does, namely “to deconstruct the law as to its essence (…) because it is based on text layers which may be interpreted and modified” (Derrida, 1991; 30). Consequently, Derrida finds it sufficient to describe the “structure” of law as “the space between” the law as a text “allowing itself to be deconstructed” and justice “not allowing itself to be deconstructed” (ibid.). 22 And conceptually? As the attempt to understand transcendence is expressly said to be “in vain” (Teubner, 2008a; 27) it is not possible to grasp the transcendence formula in terms of concepts.

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that the operations of law should be intertwined with a transcendence of law, which can never reach these operations but to which these operations should remain exposed. The social evolution of society has caused certain structures of law to emerge (cf. Teubner, 1989; 61ff.; Luhmann, 2004; 230ff.). Structure and operation “may differ from each other but cannot be separated from each other”, as the structure empirically speaking, invariably occurs “only in the operations of the system” (Luhmann, 2004; 209). As a thoroughly societal and thus immanent emergence, the structure is bound to miss out on the transcendence assigned to the law by Teubner. And with that it becomes highly implausible why the operations should burden themselves additionally with transcendence. If the operations of law rest on completely worldly structures of the law, the transcendence formula of the law – for the description of which Teubner sees himself compelled to consult personalities such as Kohlhaas and Jesus as per the Gospel of John, who require great interpretative efforts – appears “to overtax the law as well as the social communication of our present times as a whole” (Clam, 2008; 50). The operations of law are “structurally resisting such transcendence” (ibid.). The “form of experiencing the law”, which Teubner considers to be the “symbolization of transcendence” (Teubner, 1999; 212), continues to be – aiming at the legal system – what experiencing can only mean in systems theory, namely “selection processes attributed to environment” (Luhmann, 2001a; 41). In the comparison between the transcendence and contingency formulas, Luhmann’s blind spot would remain justified as being thoroughly societal.

5

Conclusion

If it is true that one should agree with Luhmann, what does that mean for Teubner’s attempt of giving systems theory a critical turn? The considerations presented in here have been based on the question whether it is possible to apply systems theory – in contrast to its reputation of being a thoroughly affirmative description of society – to thematize justice in the same way as was attempted by Adorno, that is, as a self-authorization of human beings over society´s spell. In conclusion, I would like to summarize in a few statements why I think that this attempt is bound to fail, and in several respects at that. In several respects because this failure of “critical systems theory” occurs on at least two levels that present themselves in Teubner’s attempts to go beyond Luhmann. First, Teubner redesignates, into a normative theory of justice, the uncircumventable insight into a poly-contextural constitution of society that banishes human beings into the environment. He then wishes to make certain of the normative foundations of the systems by helping justice along with Derrida. In doing so, he objects to Luhmann in that Luhmann is lacking in sensitivity in his considerations of the legal system’s relationship with its environment, so as to then define the problem in such a way that justice has to be more than the cognitive learning of the legal system.

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Even the first step towards ecological justice has its problems. For in this theory of justice, the condition of the possibility of justice is so firmly connected with the “Great Narrative ‘System´ ” (cf. Buckel 2007, 39) that even the just conditions perpetuate the source of injustice. What would thus be deactivated is the achievement to make other distinctions, which from the perspective of the participants has always been done. In Teubner’s version, however, justice is understandable merely as a concept into which the functional differentiation has always been inscribed, a concept which would then barely provide access to a distinction which is decisive for the historically saturated concept of justice, namely the distinction between productive power development and production conditions.23 24 I would not deny that this way of ‘thinking together’ the ideas of the theory of justice and the conditions of the practice of protest may be the only way today, under the given conditions, to avoid embarrassment in the face of reality – and thus would be in keeping with the spirit of Marx and Adorno. And yet, as for the “systems theoretical idea of the commitment of social systems to social responsivity” (Fischer-Lescano, 2009; 68) as a condition of justice: Is it not, argumentatively speaking, sufficiently covered already by Luhmann’s condition of the cognitive openness of all systems, which manifests itself in the law as the contingency formula of justice? Luhmann, at any rate, adheres to the prohibition of images as he finds a home for justice as a contingency formula at the center of the law, while stating at the same time that the “establishing” of different contingency formulas would leave “open what they imply with a view to society as a whole” (Luhmann 1997, 470). In contrast, the normative turn of systems theory made by Teubner appears to obtain justice in a surreptitious manner. Firstly, Teubner’s accusation against Luhmann to the effect that he was incapable of adequately comprehending the environmental relations of the legal system comes right back at him. Because the figure of latent extra-societal and pre-societal self-rights remains implausible even if it is not literally misunderstood. The cries of those who suffer are also invariably the cries of those who, for better or worse, are subjectivated by a thoroughly socially integrated society (cf. Buckel 2007, 217ff.). The necessity of differentiating between excluded people, who remain deprived of their right of having rights but potentially will always be legal subjects and, for this very reason, urge their way into the communications of the legal system, and the latent right of human beings designed into the environment of society is not apparent. Rather, Teubner himself seems to normatively charge the distinction between system and environment, and 23 24

As for the dialectics of that distinction: Adorno, 1987. Draw a distinction! In order to render this very distinction between productive forces and relations of production productive again, Michael Hardt and Antonio Negri (Hardt/Negri, 2000), for example, combine the social disaster of the de-differentiation of global society into the one production condition of empire so as to develop against this the productive power development of multitude. (The fact that they actually do not want to draw that distinction under their ontologic approach inspired by Spinoza does not change anything about them doing just that).

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to even consider it as a source of the normativity of justice. And he does so – against his explicit intention – with the threat of relapsing into concepts of natural law. But perhaps this “ontologisation of the boundary” (Buckel, 2009; 25) between system and environment is inevitable after the ‘Fall of Man’ as to functional differentiation? Perhaps Teubner’s urging that systems theory should be shaped more critically, as autopoietic processes should be imagined in a more sensitive way with regard to the environment, is the maximal approach to a criticism of society, which at the same time does not fall behind sociological enlightenment? The sensitive variant of re-entry would then need to be understood as the only approach towards the non-identical of Adorno that is possible today. The more sensitive variant of ecological justice would, in the long run, result in “the instauration of world-societal conditions of self-determination”, which could lead to the “breakup of the stratification patterns of social institutions” (Fischer-Lescano 2009, 68). Yet, theory may be critical only if it allows the “self” in “self-determination” to have its say; if it is able to make a turn towards the subject (or, at least, to heed the participant’s perspective). Now, it is no coincidence that Teubner, from among the “secret contacts” which systems theory maintains with “officially hostile theories ” (Teubner, 2006; 333), chooses deconstruction as the one to be made socially acceptable. “Demolishing” systems theory in this way will permit the continued postponement and exclusion of the issue of those concerned. But does that mean that now, against this, we should just make a call back to the subject? At this point, I would like to recall to mind the dissolution of the spell, by means of which Adorno identified the starting point of critical theory at the beginning. In such a critical perspective – so I had quoted Adorno at the beginning – human beings should be given the capability of dissolving the spell by appearing not only as mere appendages of the machinery and the system, “which, to be sure, were made by human beings themselves” (Adorno/Gehlen, 1975; 249). Admittedly, this requirement – if it is meant to fall not only behind the “sociological enlightenment” of systems theory but even behind sociology as a whole – must not be geared only to “subjectivity as the power of normative success – as the ability to provide for successful consummations”, as Menke (2007; 62) defines the way of thinking of the enlightenment. But that this, especially, cannot be done had become an issue for Adorno. And not so by assuming that the free and proud subjects would simply be confronted with the power and the structure of society. Rather, the criticism of society faces the problem that ‘being bound to fail’, which has always been an immanent trait of society, is not separated from the subject but is reflected in the subject and its concept. The structures of societal powerlessness can be traced in the physiognomy of the subject, which in turn contributes to the structures. In the words of Adorno (1987, 236) human beings “lack … full awareness that they are the objects and not the subjects of societal processes – processes which, as subjects, they nevertheless keep in motion”.”

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Clear parallels to Derrida are found in this impossibility of subjective success. For it is as clear to Derrida as it is to Adorno that the subject is not able to do so. Both critical theory and deconstruction incessantly show “…,from the inside, the aporias (as Derrida says) and the contradictions (as Adorno says) … which the enlightenment program is bound to drift into as its implementation is attempted” (Menke, 2007; 63). But this does not make Adorno a supporter of deconstruction. For all the differences which do not permit the two philosophers to be lumped together, it is the “key concept” (Negt, 1995a; 3) of experience that illustrates the differences in thinking that exist between Adorno and Derrida. A difference – one is prone to emphasize almost by reflex in passages like this – which refers to the ‘whole’. At this point, though, the reference to the ‘whole’ is justified: It is society which still remains in Adorno’s radical subject criticism with the term of the experience, whereas it is missing in Derrida. With the term “experience”, which – in the view of Derrida – “itself contains the reduction to the subject that he intends to criticize (or deconstruct) either in its empiristic or phenomenological variant” (Menke, 2007; 72/footnote 25), Adorno, as far as is possible, continues to hold on to the subject long after the moment of its fall25. Admittedly, his hold remains tender and insecure and does not at all reach out with chubby-faced firmness. But despite the society´s spell which is at work as a context of delusion in the subjects, too, Adorno does consider it possible that by “the memories of good luck received (or one should better say: experienced)” a simultaneous experience of lacking success comes up which may “be explained by reflecting on the structure of existing societies”: “Their wrongness,” Menke says (2007;74f.) “by which they make real life and successful practice impossible, accordingly consists in forming a type of social context which itself – in decisive respects and for structural reasons – cannot itself be understood as per the model of successful practice (but rather as a ‘system’, for example)”. If, however – and this is the question that arises after Adorno (and which is not forced upon us after Derrida) – the reference to the subject and to success remains forever futile after the paradigmatical turn towards poly-contexturality, are we then not threatened by the danger that turning towards a kind of justice that has to make do without the critical difference to subjective success will just pseudo-critically

25

“Without this sociologically expanded philosophical concept of experience, Adorno’s philosophy would essentially be nothing but the continuation of traditional philosophy with new topics” (Negt, 1995b; 170). In turn, this (a continuation of philosophy that does not reflect on social structures) would be Derrida’s deconstruction, which – as it nevertheless sees itself as socially critical – turns into an ideology. For example, Ritsert (1997; 46) says that Adorno would “attack deconstruction as an ideology of intellectual culture in accordance with the basic thesis of his ideology theory” as one of the social sciences, “which superstructurally double the basal tendency towards the desubjectivation of the subjects by intending on their part to – affirmatively – establish that deconstruction process as a basis of philosophy”.

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double the affirmative tendencies of systems theory, and thus turn into an ideology?26 If, in contrast, the heuristic tools of the ‘paradoxical’ is moving into focus and develops its own dynamics in such a way that it guarantees by itself the transcendence of the law into the ever predetermined direction of ‘justice’, accordingly producing the force of law27 (emphasized by Derrida and Teubner) as opposed to the form of law (emphasized by Luhmann), then there exists, indeed, the threat of an affirmation of the unjust conditions against which Luhmann appears to be a downright critic. If everything is, and remains, paradoxical, then there are no more contradictions. It is not without a reason that Teubner’s project of updating Luhmann with Derrida has to put up with being labeled as “everybody’s darling in the context of delusion” (Bung 2009, 83).

6

Postscript: What is left of the Transcendence Formula?

Yet, the course of events needs to be halted before things get so far advanced that Teubner’s critical undertaking, which allows for the theoretical argumentation, in systems theory, of a resistance potential of the degraded, the subjugated, the forsaken and the contemptible, and thus means nothing but an emancipatory criticism at risk of being carried away into the maelstrom of “the context of delusion”. It is not at all possible to sleep away the thoughts of the paradox of law by taking a nap in the “bed of Carneades” (cf. Bung 2009). On the one hand, it becomes evident that law is considerably more adamant towards the demands of its environment than is assumed in the high-spirited theories of justice that are out of tune with systems theory. On the other hand, it becomes evident that law (and justly so!) is just as reluctant towards being absorbed by power-generated decisions (cf. Fischer-Lescano/Liste, 2005; Fischer-Lescano/Christensen, 2005). In the above, it was Luhmann who proved right against Teubner, since it did not become clear where the plausibility of the expansion of the transcendence formula of justice comes from, as compared with the contingency formula. Neverthe26

Has not Luhmann, in his early stages, already described the amalgamation of ideology and positive law in exactly such a way (Luhmann 1991c) that any ideology-critical approach merely would need to pick up and continue from there? 27 As to the distinction between form and force: Menke, 2008; 105: “According to systems theory, … containing the ‘other’ in oneself … is a cognitive operation; it is an operation of self-observation. Deconstruction, though, sees this as a normative force, as the requirement of containing the ‘other’, which drives law onwards and beyond itself. Because systems theory does not think of the ‘other’ as a force in the production of the form, it cannot therefore think of the irreducability of the ‘normative’, nor of the normativity of the paradox of law. The paradox of law exists only in that, within the law, it turns its normative force against the law, and that it is created within the law and against the law by an interruptive action.” (Menke, 2008; 105).

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less, Teubner proves right against Luhmann if his objection against Luhmann is asked, apart from normative implications, as a question about the precarious materialization of law. Because in and of itself, the contingency formula of justice is unable to explain the invariably precarious materialization of law. Yet, unlike Teubner, the thus emerging policy of deparadoxication (Stäheli 2000, 230ff.) should not accept from Derrida a moral moment of opening oneself towards the ‘other’ merely by non-decidability, which anyway needs to be decided on (cf. Laclau, 1996; 77f.; Stäheli, 2000; 236f.). The transcendence formula, which then appears in contrast to the contingency formula, would be a political one, tilling the soil of politics beyond the political system – and perhaps it is this very option of politics, which Teubner shows in ever more focal points and constitutions of global society, is some kind of justice in itself, because to show may serve to help: “However powerful a spell … the social order … may cast, this nevertheless remains just a spell” (Adorno, 1987; 246).

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Fischer-Lescano, Andreas (2005). Globalverfassung. Die Geltungsbegründung der Menschenrechte. Weilerswist: Velbrück. Fischer-Lescano, Andreas (2009). „Kritische Systemtheorie Frankfurter Schule“. In Callies, Gralf Peter/Fischer-Lescano, Andreas/Wielsch, Dan/Zumbansen, Peer (eds.) Soziologische Jurisprudenz. Festschrift für Gunther Teubner zum 65 Geburtstag. Berlin: De Gruyter Recht, 49-68. Fuchs Peter (1992). Die Erreichbarkeit der Gesellschaft. Frankfurt/M.: Suhrkamp. Habermas, Jürgen (1981). Theorie des kommunikativen Handelns. Band 2: Zur Kritik der funktionalistischen Vernunft. Frankfurt/M.: Suhrkamp. Hardt, Michael/Negri, Antonio (2000): Empire. Cambridge: Harvard University Press. Hegel, G.W.F. (1986). Grundlinien der Philosophie des Rechts, Werke in zwanzig Bänden, Bd. 7. Frankfurt/M.: Suhrkamp. Jackson Pollock Bar (2001). „Depressive aller Länder vereinigt euch. Die Theorie, das Subjekt und der Beobachter”. In Hegemann, Carl (ed.). Erniedrigung geniessen. Kapitalismus und Depression III. Berlin: Alexander Verlag, 85-90. Kastner, Fatima (2006). „The Paradoxes of Justice: the Ultimate Difference Between a Philosophical and a Sociological Observation of Law”. In Perez, Oren/Teubner, Gunther (eds.). Paradoxes and Inconsistencies in the Law. Portland: Hart Publishing, 167-180. Laclau, Ernesto (1996). Emancipation(s). London: Verso. Luhmann, Niklas (1991a), „Soziale Aufklärung“. In Luhmann, Niklas Soziologische Aufklärung 1. Opladen: Westdeutscher Verlag, 66-91. Luhmann, Niklas (1991b). „Selbst-Thematisierung des Gesellschaftssystems. Über die Kategorie der Reflexion aus Sicht der Systemtheorie“. In Luhmann, Niklas. Soziologische Aufklärung 2, Opladen: Westdeutscher Verlag, 72-102. Luhmann Niklas (1991c). „Positives Recht und Ideologie“. In Luhmann, Niklas. Soziologische Aufklärung 1. Aufsätze zur Theorie Sozialer Systeme. Opladen: Westdeutscher Verlag (6. Aufl.), 178-203. Luhmann, Niklas (1991d). „Die Weltgesellschaft“. In Luhmann, Niklas. Soziologische Aufklärung 2. Aufsätze zur Theorie der Gesellschaft. Opladen: Westdeutscher Verlag (4. Aufl.), 51-71. Luhmann, Niklas (1995). Social Systems. Stanford: Stanford University Press. Luhmann, Niklas (1997). Die Gesellschaft der Gesellschaft (2. Bde.). Frankfurt/M.: Suhrkamp. Luhmann, Niklas (2001a). „Einführende Bemerkungen zu einer Theorie symbolisch generalisierender Kommunikationsmedien“. In: Id. Aufsätze und Reden. (ed. Von Oliver Jahraus), Stuttgart: Reclam, 31-75. Luhmann, Niklas (2001b). „Dekonstruktion als Beobachtung zweiter Ordnung“. In: Id. Aufsätze und Reden. (ed. by Oliver Jahraus), Stuttgart: Reclam, 262-296. Luhmann, Niklas (2004). Law as a Social System, Oxford/New York: Oxford University Press. Marx, Karl (1976): Capital. A Critique of Political Economy. Volume One, Harmondsworth, a.o.: Penguin Books.

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Menke, Christoph (2007). „Subjektivität und Gelingen: Adorno –Derrida“. In: Niederberger, Andreas/Wolf, Markus (eds.). Politische Philosophie und Dekonstruktion. Beiträge zur politischen Theorie im Anschluss an Jacques Deridda. Bielefeld: transcript, 61-76. Menke, Christoph (2008). „Der Abgrund des Subjekts: Soziale Bedingungen der Aporien der Gerechtigkeit“. In Teubner, Gunther (ed.). Zur (Un-) Möglichkeit einer Gesellschaftstheorie der Gerechtigkeit. Stuttgart: Lucius & Lucius, 81108. Nassehi, Armin (2006). Der soziologische Diskurs der Moderne. Frankfurt/M.: Suhrkamp. Nassehi, Armin (2008). „Exklusion als soziologischer oder sozialpolitischer Begriff?“. In Bude, Heinz/Willisch, Andreas (eds.). Exklusion. Die Debatte über die „Überflüssigen“. Frankfurt/M.: Suhrkamp, 121-130. Negt, Oskar (1995a). „Der Soziologe Adorno“. In Schweppenhäuser, Gerhard (ed.). Soziologie im Spätkapitalismus. Zur Gesellschaftstheorie Theodor W. Adornos. Darmstadt: Wissenschaftliche Buchgesellschaft, 3-26. Negt, Oskar (1995b). „Adornos Begriff der Erfahrung“. In Schweppenhäuser, Gerhard/Wischke, Mirko (eds.). Impuls und Negativität. Ethik und Ästhetik bei Adorno, Hamburg/Berlin: Argument Verlag, 169-180. Parsons, Talcott (1985). Das System moderner Gesellschaften. Weinheim und München: Juventa. Ritsert, Jürgen (1997). „Das Nichtidentische bei Adorno – Substanz oder Problembegriff?“, in: Zeitschrift für kritische Theorie. Schütz, Anton (2008), „Von einem neuerdings erhobenen gerechten Ton in der autopoietischen Jurisprudenz“. In Teubner, Gunther (ed.). Zur (Un-) Möglichkeit einer Gesellschaftstheorie der Gerechtigkeit. Stuttgart: Lucius & Lucius, 53-79. Stäheli, Urs (1998). „Zum Verhältnis von Sozialstruktur und Semantik.” Soziale Systeme 4, H. 2, 315-340. Stäheli, Urs (2000). Sinnzusammenbrüche. Eine dekonstruktive Lektüre von Niklas Luhmanns Systemtheorie. Weilerswist: Velbrück. Teubner, Gunther (1989). Recht als autopoietisches System. Frankfurt am Main: Suhrkamp. Teubner, Gunther (1999). „Ökonomie der Gabe – Positivität der Gerechtigkeit: Gegenseitige Heimsuchungen von System und différance“. In Koschorke, Albrecht/Vismann, Cornelia (eds.). Widerstände der Systemtheorie. Kulturtheoretische Analysen zum Werk von Niklas Luhmann. Berlin: Akademie Verlag, 199-212. Teubner, Gunther (2000): „Des Königs viele Leiber: Die Selbstdekonstruktion der Hierarchie des Rechts“. In Brunkhorst, Hauke/Kettner, Matthias (eds.). Globalisierung und Demokratie. Wirtschaft, Recht, Medien. Frankfurt/M: Suhrkamp, 240-273.

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Teubner, Gunther (2003). „Der Umgang mit Rechtsparadoxien: Derrida, Luhmann, Wiethölter“. In Joerges, Christian/Teubner, Gunther (eds.). Rechtsverfassungsrecht, Baden-Baden: Nomos, 25-46. Teubner, Gunther (2006). “The Anonymous Matrix: Human Rights Violations by `Private´ Transnational Actors”. In: The Modern Law Review, (2006) 69(3), 327-346. Teubner, Gunther (2008a). „Selbstsubversive Gerechtigkeit: Kontingenz- oder Transzendenzformel des Rechts“. Zeitschrift für Rechtssoziologie, Bd.29/H1, 936. Thies, Christian (1997). Die Krise des Individuums. Zur Kritik der Moderne bei Adorno und Gehlen. Hamburg: Rowohlt. Wagner, Elke (2005). „Gesellschaftskritik und soziologische Aufklärung.“ Berliner Journal für Soziologie, Heft 1, 37-54. Wissel, Jens (2007). Die Transnationalisierung von Herrschaftsverhältnissen. Zur Aktualität von Nico Poulantzas´ Staatstheorie. Baden-Baden: Nomos.

Transnational Governance and Human Rights: The Obligations of Private Actors in the Global Context Regina Kreide

1

Introduction

We live in a world of complex global economic, political, ecological and social processes that influence our lives enormously. It is difficult to trace the causes of these developments and to determine who is obliged to remedy the massive problems that we face today, such as global poverty, slavery and exploitation, and the destruction of our environment. Moral philosophy and political theory are struggling to discover an adequate conception of our obligations in global and regional contexts. The prevailing common sense morality says that the primary moral actor is the individual and the obligations of collectives are often more or less ignored. From this perspective, the individual is overburdened with responsibility for mitigating large-scale problems effectively. Things look quite different, however, when we turn to political theory and look at the political legitimation of rules in international relations. While the individual is seen as the principal and ideal actor in processes of democratic will-formation and rule-setting within the nation-state, governance beyond the nation-state has other demands. It needs to address the fact that the international world order has changed rapidly during the last decades. The state-centred international system of law included only one type of “player”, the nation state. The current international political order, however, consists of a multi-level system, without a world government but with multiple players in functionally differentiated fields of activities. The international community has established the United Nations as the single power on a supranational level that has the authority to implement enduring peace and prevent massive human rights violations. At the level “below”, the transnational level, networks and organisations converge and overlap to satisfy the different functional demands of co-ordination. The various forms of co-ordination between transnational state organisations, state and non-state actors, and simple private self-regulation address not only “technical” problems such as quality standards, telecommunication, and the prevention of catastrophes; they are also increasingly involved in regulations of a genuinely political nature such as financial and economic issues, energy and the environment, poverty reduction and health care.

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In keeping with current notions of international governance, the citizen has given way to collectives as the primary political actor. Private collectives, in particular, have gained increasing prominence in international negotiations, public deliberation, and rule-setting. We, therefore, face the somewhat awkward situation that, in moral frameworks, the obligations attributed to the individual have become quite extensive, whereas, in political frameworks, the legitimacy of a citizen’s participation in global agreements has been curtailed. However, both frameworks have their pitfalls. Our understanding of the moral obligations required to address large-scale problems is as inadequate as the prevailing ideas concerning legitimate governance in international relations. In this paper, I will discuss these issues, focusing on the obligations of transnational corporations in international relations. The transnational corporation (TNC) became a main international actor during the second half of the twentieth century.1 The revenue of some transnational corporations exceeds the gross national product of the smaller European states, not to mention the African states, which gives them inordinate influence over international market regulations and national legislative and political processes.2 More than 54 million people are employed by TNCs, and this number is even higher when one includes non-equity relationships such as sub-contracting and licensing. At the centre of these developments is the issue of transnational corporations’ obligations to respect basic human rights. They embody the most basic moral rules with global scope. It is widely held that human rights treaties are, first and foremost, addressed to individuals and to states. States, for various reasons, no longer sufficiently control the implementation of human rights law. Non-state actors – not by accident defined in contrast to the “state” – are not parties to such treaties because – or so it is said – they have not been involved in the drafting process, cannot report to the treaty bodies, and cannot participate in electing the expert members.3 1

2

3

See M. Koenig-Archibugi, “Transnational Corporations and Public Accountability”, (2004) 39 Government and Opposition, pp. 234-259, at 234. Their growth has been enormous: in 1976, there were 11,000 TNCs with 82,600 foreign affiliates. In 2002, there were 64,592 TNCs with 851,167 foreign affiliates. It is not just the growth in TNCs that make them relevant in international relations; it is also that their roles have changed. While nation-states have lost important decision-making competencies at the international level, TNCs have gained tremendous political and economic power; see, also, O. de Schutter, “Transnational Corporations and Human Rights: An Introduction”, 2005, Hauser Global Law Working Paper, http://www.nyulawglobal.org/ workingpapers/GLWP_0105.htm. The value of the exchanges at Merrill Lynch every day exceed the total GDP of the whole of Africa. Many thanks to Chris Engert for this remark. On this claim, see P. Alston, “The “Not-a-Cat-Syndrome”: Can the International Human Rights Regime Accommodate Non-State Actors?” In: P. Alston (ed): Non-State-Actors and Human Rights, (Oxford: Oxford University Press, 2005), pp. 3-37, at 9; however, this is not the position, which he defends.

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This position, however, no longer seems tenable and has raised pressing theoretical questions. I will address two of these questions in this article. The first question focuses on the normative side of the topic: Do corporations have human rights obligations, and, if so, do they differ fundamentally from the human rights obligations of states on the one hand, and of individuals on the other? I will argue that collective actors do have obligations to avoid directly violating human rights, and have an obligation to mitigate in situations in which rights are being violated by others, if they have the power to intervene. Moreover, having broached upon the subject of an “extended notion of corporate obligations”, what should be the content of these obligations? Normative studies are often criticised for being trapped in the powerlessness of “ought to” language. My approach combines a normative and empirical perspective, connecting the normative grounds for corporate obligations to an empirical analysis of the current global and EU policies that work towards the implementation of corporate obligations. Against the background of the normative proposal offered in Section 1, I will look at some institutional arrangements and corporate initiatives that aim at norm compliance and asks the following question: Which modes of governance already allow for private-public co-operation in the implementation of human rights obligations? I will offer three criteria for the critical evaluation of just two (because of page constraints) international initiatives that aim at enhancing corporate human rights compliance. Thirdly, I will argue that one has to put these analyses into a broader institutional context. A third question is, therefore, what entities, and what institutional, contractual arrangements and strategies support, or hinder, the implementation of the new modes of governance which aim to establish human rights standards within market processes and beyond. I will argue that a network of diverse regulations concerning the responsibility of non-state actors has brought about a new institutional context of justification and control. However, not all of these new policies meet the standards of democratic legitimation. I will conclude with a sceptical note on the political equality of private collective actors within global governance processes.

2

The obligations of the collective actor

States remain the major violators of human rights, but there is now also widespread concern at human rights abuses committed by corporations that have the power to escape national legal responsibilities. At the same time, TNCs have become an important partner to states, intergovernmental agencies, and non-governmental organisations in the development of mechanisms to enforce human rights-related

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standards, such as adequate wages and leisure time for workers, and environmental protection. The corporation appears both as a potential human rights violator and as a political bargaining partner in governance processes that establish human rights standards. In moral philosophy and political theory, most approaches bear the hallmarks of what Samuel Scheffler has called “common sense morality”. It includes assumptions that not only influence theory but are also entrenched in everyday practices (Scheffler, 2001: 37). Four assumptions in particular make it very difficult to speak about the obligations of a collective actor.4 These are: that collective actors do not act intentionally; that the individual (and not the collective) is the primary moral actor; that action is more morally significant than omission; and that consequences that have proximity in time and space are more significant than remote consequences. In the sub-section that follows, I will first address these four assumptions and argue that we should, in fact, attribute obligations to collective actors, including transnational corporations, as there are advantages to assigning obligations to collectives, rather than to individuals. Secondly, I will focus on the content of these obligations, thereby taking into consideration that corporation’s obligations do not transform the corporation or any other collective actor into a moral person. 2.1

The “unintended-action-argument”

When considering the obligations of corporations, we are first confronted with the common sense-based objection that the actor we are talking about is a collective whose way of “acting” differs fundamentally from that of an individual. By a “collective actor”, I mean an entity with an internal organisation structure that is able to make decisions and direct its activities accordingly. In an argument that can be traced to Adam Smith, Friedrich von Hayek, and later to Niklas Luhmann, it is commonly held that the activities of corporations are not regulated intentionally but arise spontaneously as a result of the establishment of a sub-system in an expanding capitalist world economy. Market processes, they say, can best be understood in terms of a game, “partly of skills and partly of chance” (see Hayek, 1976: 71) whose outcome is not foreseeable but is instead unpredictable and has winners and losers. The economic system is metaphorically driven by an “invisible hand” (Adam Smith) or “steering medium” (Niklas 4

The first assumption is not mentioned in S. Scheffler, “Individual Responsibility in a Global Age”, in: Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought, (New York: Oxford University Press, 2001), pp. 32-48. For the other three, see, also, the very illuminating article of M. Green, “Institutional Responsibility for Moral Problems”, in: A. Kuper (ed): Global Responsibilities. Who must deliver on human rights?, (New York, Oxford: Routledge, 2005), pp. 117-135.

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Luhmann).5 As part of the systematic economic order, corporations are selfreferential entities, subject to the imperatives of economic rationality, such as the exchange of economic goods, the maximising of profit under conditions of competition, and the accumulation of power. The argument for restricted corporate obligations concludes that because the actors in the market are driven by the forces of economic rationality, and do not have intentionality, one cannot say the corporate actor was ever in a position to act otherwise.6 This emphasis on an interest-neutral and completely unintended co-ordination of activities seems to be overly one-sided (see Gray, 1981). This becomes obvious when we consider the/0 problems or conflicts that occur within the market that require reactions from corporations. Stakeholder demands, moreover, have led to new institutional mechanisms such as progress reports, benchmarking, and peer review.7 Corporations clearly react to new external demands, and can be said to be involved in learning processes. Shell in Nigeria is a prominent example of a firm dealing with external demands in a way which, at first glance, seems to contradict one major aim of a corporation, which is, to increase its profits. The impact of oil extraction on the Ogoni people and the Delta environment and, in particular the execution of Ken-Saro-Wiwa led to very negative publicity for the company worldwide. For a long time, Shell’s standard answer to criticism of its role in Nigeria was to strengthen the “division of work” between the state and the corporation.8 A change in opinion came after public pressure against the company strengthened. Shell admitted that “not to take action could itself be a political act”, and declared a 5

6

7

8

See A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, (ed). by R.H. Campbell, A.S. Skinner & W.B. Todd, (Oxford: Clarendon Press, [1776] 1976) (The Glasgow Edition of the Work and Correspondence of Adam Smith.); F.A. von Hayek, “Law, Legislation and Liberty”, Vol.2: The Mirage of Social Justice, London, Chicago: University of Chicago Press,1976; N. Luhmann, Die Gesellschaft der Gesellschaft, (Frankfurt aM: Suhrkamp, 1997). For the relationship between responsibility and the freedom to act otherwise, see J.M. Fischer & M. Ravell, “Responsibility for Consequences”, in: J.M. Fischer & M. Ravizza (eds), Perspectives on Moral Responsibility, (Ithaca: Cornell University, 1993), pp. 322349. The European Union, for example, has increasingly used so-called soft modes of governance to orchestrate different actors, including TNCs, to solve complex social problems through deliberation, based upon voluntary and non-sanctioned forms of policy-making (public or non-public). See, for one of the first articles on this, F. Snyder, “Soft Law and Institutional Practice in the European Community”, in: M. Stephen (ed), The Construction of Europe. Essays in Honour of Emile Noel, (Dordrecht: Kluwer, 1994), pp. 197-225; later E. Best, “Alternative Regulations or Complementary Methods? Evolving Options in European Governance”, in: (2003) 3 Eipascope,, pp. 2-18. D. McBarnet, “Human Rights, Corporate Responsibility and the New Accountability”, in: T. Campbell & S. Miller, (eds), Human Rights and the Moral Responsibilities of Corporate and Public Sector Organizations, (Dordrecht: Kluwer, 2004), pp. 63-81, at 67.

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commitment to a wider concept of responsibility for its future activities. This potential for corporations to change their behaviour paves the way for further normative consideration of the foundation of the obligations of collective actors. Let us consider the three remaining assumptions of common sense morality that restrict the notion of corporate obligations. 2.2

The priority of the individual over the collective

The second assumption is the idea that individuals are the primary bearers of moral obligations.9 This means that my independent actions are regarded as more important for an outcome than my actions as a member of a group. If I produce a piece of artwork that becomes very famous, I will receive much more attention for my effort if I produce it alone than as a member of a group or school. The focus on the relative contribution of the individual to the final product has consequences on our daily assessment of our obligations. This is one reason why it is difficult to address direct responsibility for climate changes. If I drive my car every day and use electricity, this activity on its own cannot cause global warming. We see our contribution without focusing on the aggregated effects that our actions have in concert with those of others. This shapes our ideas about collectives. In so far as collective actors play a substantial role in common sense morality at all, their actions and obligations are seen as being derived from those of individuals. This perspective, however, seems short sighted; it neglects the overall effects of uncoordinated collective harm. This is true also with view to the collective actor’s activities. Even though the market system operates according to economic demands, examination of the effects of a corporation’s activities allows a normative evaluation of the collective activities. Against Hayek’s assumption, the systemic mechanisms (power and the exchange of goods) are “embedded” in society through the effects of the collective actions,10 which means that economic actors are “linked” to processes of co-operation and interaction in the “life-world”. In a global economy, this “link” is more or less reduced to confronting the sometimes desired, but often undesired, aggregated effects of radical modernisation. Growing political awareness beyond national borders has triggered an evaluation of the effects (Beck/Giddens/Last, 1997) of the activities of corporations in different public spheres. Consider, for example, the debates on the ecological and human 9

See, for the following aspect, M. Green, Institutional Responsibility for Moral Problems, in: A. Kuper (ed): Global Responsibilities. Who must deliver on human rights?, (New York, Oxford: Routledge, 2005), pp. 117-135, at 118.

10

For the notion of “embeddedness”, see K. Polanyi, The Great Transformation: The Political and Economic Origins of our Time, (Boston: Beacon Press, [1944] 2001).

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rights abuses caused by multinationals. Because they affect people’s lives in massive, not marginal, ways, corporations are being said to bear some responsibility for their actions. 2.3

The priority of action over omission

A third common assumption is the idea that actions and their direct effects are more morally relevant than omissions and their possible effects. If I cheat someone out of their money, this is a greater wrong than watching somebody cheat someone else and not taking any steps to intervene. We could be tempted to conclude that we have a strong duty not to undertake certain actions that harm others, but much less duty to prevent others from committing harm (Pogge, 2004: 279-280). Not to help in a situation of need, however, is a failure to render assistance, which is usually also declared as a moral, and even a legal, wrong. I may have good reasons for inaction, such as fear of being attacked, being too shocked to act, or perhaps thinking myself too weak to be effective. These considerations may postpone a decision, but they do not actually change the duty to offer help. The situation is less complicated if we slightly change the example. Imagine a person who watches a person cheat another, and then receives part of the take as a kind of hush money. In this case, we speak of complicity, and we would say that the bystander is co-responsible for what has happened as he or she profits from the harm inflicted on others. These considerations have consequences for the question of corporation’s obligations. It is not just the direct action and the influence of corporations that makes them a legitimate subject of obligations. If we say that everyone who contributes to the furtherance of injustice, including unjust institutions, and those who profit from it bear responsibility for the results, then we have another argument for corporation’s obligations (Pogge, 2002). If collective actors profit from the current domestic or international system, they are not only bystanders, but also participants, and by this they contribute to the negative effects on peoples’ lives. Think of an oil company, for example, that lays a pipeline through a country whose government forcibly resettles its indigenous peoples to accommodate the pipeline. The company is indirectly implicated, and, by this, it is obliged to cease engaging in a process that causes harm (see Steinhardt, 2005: 185).11 Even though a corporation cannot be held liable in a juridical sense for a host government’s systematic violations of civil, political, economic, social and cultural rights, it can be held responsible for upholding an unjust domestic order.

11

There is no domestic legislation defining a comprehensive, enforceable code of human rights conduct for multinationals, but there are other models for TNCs, such as ethical investment strategies.

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2.4

The priority of near over remote outcomes

The fourth assumption of common sense morality is that outcomes that occur near to us are of greater moral importance than remote ones. We usually decide that an outcome is the result of my own action only if it can be directly related in time and space to what I have done. Remote effects that may occur in the future or happen somewhere else in the world are not clearly linked to my action. This is why we feel much less responsible for environmental effects which will, nevertheless, be felt for generations. One could add that this makes sense, as it has become very difficult, if not impossible, to trace the origins of harms. For example, it requires great effort, and is sometimes technically impossible, to single out the source of a hazardous substance that pollutes the air. And sometimes the question arises of whether one could have known that this substance would become toxic when it was released into the air, or whether it would have been possible to avoid the dangerous emission. Some sociological researchers have made the case that modern technologies have grown so complex, and risks have become so overwhelmingly incalculable, that it is often impossible to attribute responsibilities to single agents or for agents to know how to take sufficient precautions. In a “global risk society” (Beck, 2007), all human beings are – in a more or less equally manner – exposed to uncontrollable risks which, ironically, have their origin in modern technologies and industries developed in the effort to improve our way of life (ibid.: 65).12 Irreversible climate changes and interventions in human genetics cause incalculable effects across space and time. Long functional chains within these complex developments make it difficult to trace both their causes and (harmful) effects. These new global threats undermine the logic of individual responsibility: the more widespread a technical innovation and its related risks (such as toxic emissions or genetic modification), the more difficult it is to assign the origin of an effect to a single originator: When there are many producers, how can we know who is at fault for hazardous emissions? And secondly, it may be impossible for an actor to foresee the negative effects of his or her actions; and if the unwanted effects could not have been foreseen, it would not be right to attribute obligations to the actor. This position is only partly accurate and needs some differentiation. First of all, it, to a certain degree, exaggerates the complexity of circumstances and underestimates the technical and political potential for tracking down the causes of global or regional harms. We have to distinguish between limited accidents or cases of liability – even though they are not “unintended” accidents as long as a catastrophe is part of the overall calculation — and unlimited catastrophes. The former are restricted geographically and in terms of their possible effects on gen12

U. Beck, World Risk Society, (Cambridge MA; Polity Press, 1999) is a much earlier version of the German edition, which is revised in many parts.

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erations to come. They also include calculable risks such as industrial injuries caused by unsafe machines or regional oil spills by an oil company. Undoubtedly, even if the damage could be localised beforehand, there is a risk that catastrophes are not unlimited in a predictable manner and might happen nevertheless. The scale of the catastrophes can only be determined ex post but cannot be anticipated ex ante comprehensively (ibid.: 243). As not all catastrophes are unlimited, it is important to track down those who are responsible for the damage as far as this is possible. There are some promising cases. The disposal of the Brent Spar oil storage facility is a prominent example of how responsibility has been legally assigned to a huge corporation, through the auspices of a watchful public (McBarnet, 2004). Secondly, a well-known domestic principle has, indeed, come under pressure, the principle of compensation: What can serve as compensation for something that massively and irreversibly changes the conditions of human life? The idea of compensation is being replaced by the principle of prevention, which includes anticipating and preventing risks that cannot even be proven to exist.13 You may immediately object that the focus on prevention does not take us very far if we have to anticipate harmful effects under conditions of limited knowledge. If there are cases where a lack of knowledge and power makes it difficult to trace the causes of a harm and thereby make an institution liable for what has happened, it makes sense to reconsider the way we usually judge factual dilemmas. In criminal cases where there are doubts about both the facts and the role of an alleged perpetrator, we are inclined to exonerate the accused from any responsibility or obligations. However, “regular” criminal offences and institutional cases under complex conditions make for an uneasy comparison. It becomes apparent that the obligations of a collective actor are not restricted in the same way as that of an individual actor (Green, 2005). Our unease with this comparison stems from the fact that the smallest actions of collective actors can be of an enormous scale, affecting many people, maybe over generations. Given this, it makes sense to pursue a new line of argument and examine the third reason for collective obligations. In situations where our knowledge is limited and conclusive evidence is unlikely, but the harm is enormous, it makes sense to reverse the burden of proof. When the evidence of direct culpability is in doubt, we can still often speak of co-responsibility.14 One may still reply here that, if the situation is not transparent, this may be an indication that it was impossible for the collective actor to foresee the negative effects of his or her actions. However, this is an untenable assumption. A major difference between collective actors and individual actors concerns knowledge, and 13 14

U. Beck: Weltrisikogesellschaft, (Frankfurt aM: Suhrkamp, 2007), p. 104. See, for this, C. Barry, Applying the Contribution Principle, in: A. Kuper (ed): Global Responsibilities. Who must deliver on human rights?, (New York, Oxford: Routledge, 2005), pp. 135-155.

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the ability to apply it in practice. Collective actors, and especially corporations, are able to gather data, conduct their own research, work through information, and use this knowledge for their purposes through competent agents (see Zumbansen, 2005). Corporations have become powerful actors because they possess highly specialised and differentiated knowledge across many fields, which they can also effectively use in politics: they sometimes impose an entire package of labour and tax rights before making an investment and settling in a country. They are wellprepared to respond to the challenges of an international information society and are very capable of contributing towards the upholding of human rights. By addressing the capacities of collective actors, we cross a theoretical watershed. The collective actor’s obligation becomes less dependent on their role in causing harm and it becomes sufficient to show that the collective actor had the means to prevent harm and respect human rights. This discussion of capacities also reveals that the collective actor is not affected by the distinction between action and omission in the same way as the individual actor. While it may be excessively burdensome for an individual to figure out what to do to prevent a third party from harm, large corporations and other collective actors are, in fact, very capable of addressing these kinds of challenges. To sum up, we have four arguments for why transnational corporations have human rights obligations: they react to external demands through various moves, so that corporations can be said to act intentionally; they have broad, potentially negative influence on people’s life-worlds; they profit from the disadvantages of those who are much worse off; and they have the competencies and power to influence and address complex problems. The last point switches the focus from the cause of harm to the capacity to act otherwise on a global scale. As powerful entities, corporations seem to be very capable of shaping their social and political surroundings according to human rights standards. What does this mean for the widespread trend in sub-contracting? Sub-contractors are often small, with less influence and capacities than the primary contractors. It is not possible for an individual to dissolve his or her moral obligations by simply delegating a morally reprehensible task to another party. For this case, of collective entities, it is sufficient to state that if we have agreed that a collective actor has human rights obligations, then, those obligations must entail ensuring that any sub-contractors meet those same obligations.15

15

These demands are part of the Global Compact. See, also, OECD’s Principles of Corporate Governance 2004, http://www.oecd.org/document/49/0,2340,en_2649_ 34813_ 31530865_1_1_1_1,00.html.

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The Content of the Obligations

This justification of collective actor obligations/the obligations of collective actors sets the stage for specifying the content of the obligations. We can begin by identifying “sphere-specific” obligations (Campbell, 2004), intrinsically linked to the influence and the capacity of a firm. Within their sphere of conduct, collectives can bring about social and economic rights, for example, by offering adequate wages and leisure-time to their workers, by implementing anti-discrimination rules, guaranteeing security at the workplace, using environmental protection technology, and so on. Manufacturing firms, for example, may specifically violate employee rights which regulate working hours and workplace safety, so their sphere of obligation concerns mainly these aspects. Companies providing security consulting services to a government may specifically violate the rights of citizens to physical security, and thus it makes sense to concretise their obligations, accordingly. Obligations may vary in relation to the specific working field, but they also vary with view to the size, influence and capacity of a firm. This does not mean that sphere-specific obligations are determined once and for all, which would seem too narrow an approach. We also have not answered the question of what this entails, and who decides which obligations belong in which sphere. A major principle of organisation for national affairs, the “principle of affectedness”, should be applied to international relations, too. This says that, in a social relationship, those who are affected by the actions of an individual or a collective actor cannot only ask for compensation, they can also demand the/0? justification of the conduct of the actors.16 This means that the fact that a person or community is substantially affected by the activities of a transnational actor ethically implies a relation of justification between them. This is not a new principle in governance theory. It has been interpreted narrowly as “internal justification” (see Keohane, 2003: 144), in which case the individuals affected are those who, similar to owners and creditors, have delegated power to an agent who manages their affairs. In a globalised economy, this seems insufficient and we can call for a supplementary notion. “External justification” embraces a wider public and would allow us to focus on stakeholders, that is, all those directly exposed to the activities of collectives through environmental disasters, unhealthy products, low wages, and so on. The obligations mentioned above have to be concretised among all the participants in “value-based networks” (see Wheeler/Colbert/Freeman, 2003) – business partners, stakeholders, shareholders,

16

On this topic, see J. Habermas, Between Facts and Norms. Contribution to a Discourse Theory of Law and Democracy, (Oxford, Polity Press 1997) and also R. Forst, “The basic right to justification: Towards a constructivist conception of human rights”, (1999) 6 Constellations, pp. 35-59.

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NGOs, science and consumer associations – who try to come to an agreement in bargaining processes. This wider notion leaves room for two interpretations. The first understands justification as “accountability” and assumes that what is required from the actor is a public and transparent justification of the actor’s conduct in the past (see Benz/Papadopoulis, 2006). This notion of accountability is cut off from any idea of reciprocity or participation by stakeholders. It does not, for example, set forth merely rule-setting procedures, such as rules that allow those who have been affected by harmful outcomes to be heard. A second interpretation, therefore, seems necessary. According to this second notion of justification, one should understand the principle of affectedness as being intrinsically linked to reciprocal justification: everyone who has to submit to a norm should also be an author in the process of norm setting. Or, as Rainer Forst has put it, everyone has a basic right to justification, which allows every individual a “veto-right” (see Forst, 1999: 44). This includes an anticipatory perspective, addressing future events and its negative or positive effects. In this form of justification, the prevailing notion of accountability fails to be legitimate if actors who have been or may be importantly affected are not represented in the norm setting process. A collective’s concrete obligations should be determined publicly, with input from all the actors directly affected by the collective. In the context of regional and global governance, this requires transparency in the corporation’s conduct towards the stakeholders and access to both the formal and the informal political arenas in which decisions – which can have tremendous effect on stakeholders – are made. This approach should not be seen as an attempt to replace common sense ideas of morality; instead, it seeks to supplement common sense notions, and by doing so, open new ways of understanding international obligation. An attempt to overcome the moral common sense idea completely would not only be empirically over-confident, but also problematical from a theoretical point of view. We have seen that the capacities and possible influence of collective entities on the lifeworld differ fundamentally from those of individuals. The collective is, to a certain extent, much better prepared to deal with the challenges of globalisation. Nevertheless, the collective actor does not turn into a moral person simply because one recognises its human rights obligations. There is one further difference between a collective entity and an individual which makes it clear why it is misleading to talk about the moral obligations of corporations. A moral person who has moral obligations follows his or her moral principles out of the conviction that these are the most reasonable rules possible – at least, for the time-being. In contrast, a legal person – and a corporation is undoubtedly one – might follow a rule for a variety of reasons, be it the fear of penalties or loss of prestige, or the realisation that a certain activity and its effects might be wrong (see Habermas, 1997: 267). Human rights

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obligations are not directly deduced from the moral obligations of individuals, because they have distinct characteristics. It is more precise to say that we have good moral arguments as to why collective entities have or should have legal human rights obligations. However, it seems undeniable that collectives rely on individuals; without individuals and their participation in internal rule-setting and decision-making procedures, there would be no collective actor.

3

Evaluation of human rights initiatives

What has been said so far provides a setting for the evaluation of the current initiatives which aim, generally speaking, at norm compliance by corporations. These initiatives are, in one way or another, a reaction to the new roles of transnational corporations, which make them the object of human rights obligations. This leads us to the thesis of the second section of this chapter. Initiatives which aim at the human rights compliance of collective actors are legitimised if they meet three conditions relating to internationally accepted norms, the congruence of subject and authorship of norms, and the sustainable control of power. Firstly, initiatives should be compatible with human rights standards. To be more precise, all non-state agents that affect the essential interests of people have enduring duties to respect, protect, and fulfil social and economic human rights within their functional domain of influence.17 Secondly, initiatives need to respect the above-mentioned principle of affectedness. According to this principle, it should be recalled, those who are, or may be, affected by a rule or an initiative based upon rules can be expected to participate in the rule-setting process.18 This means that, if a person or community is substan17

To be more concrete: Respecting these rights requires that production sites and business practices should not destroy local, essential living conditions, nor obstruct access to economic and social rights. Protecting economic and social human rights means TNCs must prevent third parties – mainly their sub-contractors – from violating these rights. And finally, TNCs should contribute toward fulfilling economic and social human rights by, for example, respecting international labour laws and/or participating in voluntary agreements on labour standards. Those agents who have caused harm and are capable of offering compensation in accordance with the realisation of these rights have a strong duty to do so – again, within their functional area. If a direct causal involvement cannot be identified, those who are capable of realising social and economic human rights have an equally strong duty to comply. 18 On this topic, see J. Habermas, Between Facts and Norms. Contribution to a Discourse Theory of Law and Democracy, (Oxford: Polity Press, 1997), and R. Forst, “The basic right to justification: Towards a constructivist conception of human rights”, (1999) 6 Constellations, pp. 35-59.

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tially affected by the activities of a transnational actor, a relation of justification is created between them. A third criterion addresses the concept of sustainable norm enforcement. One primary concern in this area is that of guaranteeing norm compliance over a long period of time. Adequate enforcement also requires a transparent process for assigning the responsibility after an accident (both for effects that may extend into the future and in response to accidents that occurred in the past). Furthermore, a positive evaluation of a TNC’s initiatives should depend on the presence of effective mechanisms for preventing future violations. This may include institutional incentives that may hinder or support addressing accountability. I will come back to this latter point later (Section 3). Let me briefly sketch out the implications of these criteria through two examples. One example is a relatively new ILO initiative, which I am including to represent an internationally known public-private initiative. The second is a rather new, private, self-regulation initiative that explicitly aims at maximum compatibility with market regulation processes. 3.1

A private-public initiative: The International Labour Organisation (ILO)

The International Labour Organisation (ILO) is an example of an institution that sets private-public regulations on the activities of states, including binding laws and non-binding recommendations. The ILO’s norm-setting is indebted to universal norms and explicitly supports some core human rights (Blanplain/Engels, 2001). This was part of its founding ideas set out almost one hundred years ago. But with regard to the principle of affectedness, the ILO has run into problems of representation. One criticism is that the number of organised union members world-wide – unions are a main party of the ILO – is decreasing steadily, which makes it questionable as to whether the ILO is still able to represent employees adequately. At the same time, NGOs are not yet represented in the ILO, and the ILO’s first negotiations with them have been difficult because the NGOs are afraid of becoming entrapped in old, encrusted organisational structures. Furthermore, when it comes to mechanisms for norm enforcement, the ILO reporting systems have been weak, and, as a result, the number of binding conventions has decreased while the number of non-binding recommendations has increased. Some core human rights, such as the prohibition of child labour, have become binding law, not through state consent, but through ILO membership. A new ILO initiative now helps with the implementation of human rights standards. The prohibition of child labour in developing countries, for example, is supported by offering social security payments to very poor families whose income heavily relies on the contribu-

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tion of their children. So we have here a mixed result concerning the legitimacy of ILO initiatives. 3.2

Private Self-Regulation: Cotton-Made in Africa

We are currently witnessing a range of market-based initiatives in which firms compete for sales and capital through making a public commitment to human rights. The precursors of these measures are the so-called Sullivan Principles, first articulated in 1977, which amounted to a voluntary code of conduct for companies doing business in South Africa under the apartheid regime.19 Despite their uncertain impact in South Africa, the Sullivan Principles have served as a model for similar activities such as social accountability auditing and verification, unilateral Codes of Conduct, and “human rights-sensitive” product lines and brands. Starbucks offers “fair trade coffee” and the World Diamonds Council has developed the “Kimberley Process”, which is a protocol for assuring that the profits from the sales of gems do not support governments or paramilitary groups that violate human rights.20 One prominent example of a pact between private actors (TNCs) and a public actor, (in this case the United Nations) is the Global Compact, brought to life by Kofi Annan in January 1999. Along with the UN High Commission for Human Rights, the International Labour Organisation (ILO), and representatives of the UN Environmental Programme, about 50 corporations take part, including Nike, Shell, BP, Amoco and Rio Tinto. The agreement is that the corporations must go public on the Global Compact Internet site by describing their progress in implementing human rights, labour standards and environmental protection. In turn, they are allowed to use a UN logo for their advertising. The project ‘Cotton-Made in Africa’ that I will discuss in more detail here, was initiated by Michael Otto, a German mail-order business, in close co-operation with three African cotton-producing and cotton-manufacturing firms in Zambia, Burkina Faso and Benin.21 It is not a case of pure self-regulation, as Cotton-Made in Africa obtains support from the German Ministry of economic co-operation and 19

The principles required an integrated workplace, fair employment practices, and affirmative action programs, J. Braithwaite, J. and P. Drahos, Global Business Regulation, Cambridge: Cambridge University Press, 2000: 254; R. G. Steinhardt, “The New Lex Mercatoria”, in: P. Alston (ed.): Non-State-Actors and Human Rights, 177-227, Oxford: Oxford University Press, 2005: 180. 20 See, among others, A. Kuper, “Redistributing Responsibility. The UN Global Compact with Corporations”, in: T. Pogge & A. Follesdal (eds), Real World Justice. Grounds, Principles, Human Rights and Social Institutions, (Dordrecht: Kluwer, 2005), pp. 359381. 21 See www.cottonmadeinafrica.com; This is part of my own empirical research. See, also, the master thesis of N. Barth 2007: “Wie fair ist fairer Handel?” Frankfurt am Main.

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development, and from some NGOs, such as the World Wide Fund for Nature. Unlike the Fair Trade approach, which tries to implement human rights standards primarily through fixed prices, Cotton-Made aims to build local capacity so as to make African cotton capable of competing on the world market. By increasing quality, the project tries to stimulate higher demand for African cotton. The project is only indirectly obliged to respect human rights in so far as it increases the income of the local farmers and thus reduces poverty. Within the scope of the project, the participation of those affected seems fairly good; the African farmer is very well-integrated into the process of setting quality standards. But NGOs have complained that economic aims always trump ecological, and sometimes even social, goals. Norm enforcement is based upon a genuine economic principle: profit maximisation, without any further intervention in the chain of value. The market compatibility is a high incentive for integrating the rules of conduct into the on-going process of production. Nevertheless, it turns out that it is difficult to convince other firms to join the initiatives mainly because most of them are busy setting up their own codes of conduct. In the long run, this could mean a competitive disadvantage for Michael Otto’s project. In addition, a survey showed that Otto’s customers are, more or less, uninterested in this initiative and tend not to change their buying behaviour. ILO

Cotton Made in Africa

Human rights compatibility

Yes

Indirect

Principle of Affectedness

Problem of Representation Difficult position of NGOs

Sustainable human rights compliance

New strategies

High incentive through market compatibility

To sum up, we can say that the involvement of both states and international government organisations can ensure a focus on human rights standards. But this is far from being a guarantee that states will become actively engaged in implementing human rights standards. Furthermore, norm-enforcement is a major problem for both approaches. Corporations often engage in image-friendly international initiatives that have no influence on their activities. Work conditions have improved in some places in the world, but one cannot overlook the fact that self-imposed restrictions are often no more than mere “human rights rhetoric”.22 Moreover, it is 22

Nike, for example, a prominent member of the “Global Compact”, was sued by an American labor law activist, Mark Kasky, for false or misleading statements in its

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the enduring distrust that many NGOs and customers have of the genuineness of corporate activities that sustains public awareness and maintains the pressure on corporations. Paradoxically, if this distrust wears out, the initiatives that aim to create norm compliance will cease to exist. One crucial aspect concerning self-regulation is the motivation of corporations. A recent study on this topic has identified quite a self-interested reason: the codes are an answer to the risks associated with civil action and consumer boycotts (Conzelmann/Wolf, 2007). Economic rationality is not being simply replaced by moral norms or a practical discourse, nor are corporations expected to become agents which are primarily motivated by morality. Instead, a normatively-coloured context creates pressure that becomes a variable in the rational calculation. One way to maintain this pressure is to measure corporations by their promises and publicly to disclose when they fail to comply with norms, for they cannot renege on their promises without losing credibility. They agree on moral codes at first only for tactical reasons, but then “talk themselves into moral obligations” and become entangled in their own moral standards.23

4

The institutional context for implementing corporate obligations

The picture that emerges is that, despite the fragmentary and seemingly weak regulatory structure, there is potential for the slow crystallisation of new compre-

advertisements. Nike had assumed that work conditions in their subcontracting firms had improved – an assumption Kasky said was untrue. In September 2003, one month after the suit was filed, Nike, which claimed it was engaged in fully protected free speech, agreed to an out-of-court settlement and paid 1.5 million dollars to a fair trade organisation. L. Greenhouse, The Supreme Court: Advertising; Nike Free Speech Case is Unexpectedly Returned to California, in: New York Times, June 27, 2003. See, also, the contribution on an evaluation of the “Global Compact”, by A. Kuper, “Redistributing Responsibility. The UN Global Compact with Corporations”, in: T. Pogge & A. Follesdal (eds), Real World Justice. Grounds, Principles, Human Rights and Social Institutions, (Dordrecht: Kluwer, 2005), pp. 259-381. 23 Thomas Risse shows that argumentation, deliberation and persuasion plays an important role in international negotiations. He speaks of “moral entrapment”: even participants who enter the negotiations in strategic intention at some point have to switch to discursive understanding rules and the attitude oriented towards a common (“Verständigungsorientiertes Handeln”). T. Risse, “ “Let’s Argue!”: Communicative Action in World Politics”, in: (2000) 54 International Organization, pp. 1-39; T. Risse, S. Ropp & K. Sikkink (eds), The Power of Human Rights. International Norms and Domestic Change, (Cambridge: Cambridge University Press, 1999).

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hensive international human rights norms that specifically bind transnational corporations and other business entities. Its realisation has a realistic chance only if the moral codes are embedded in a legal surrounding that puts some pressure on the participating actors to obtain compliance. There are developments bith in transnational and in European governance as well as in international law that can be interpreted as an institutional context that, by creating pressure for justification and control, promotes the implementation of collective actors’ obligations. One can distinguish at least three trends in this direction, which could be expanded and further developed: Liability. In international labour law, we find a perspective that focuses on the effects of economic exchange processes when it comes to civil liability. A corporation, for example, can be held liable for damages that have been caused “intentionally” or through the negligence of its employees. Domestic courts have a history of ordering corporations to pay for damages that occur as a result of their complicity in abuses perpetrated by governments. Since World War II, for example, survivors have successfully sued companies that relied on slave labour or benefited from the property seized from Jews during the Nazi Holocaust. A wide range of cases is filed under the so-called Alien Tort Statute (ATS) in the United States, which was adopted as part of the First Judiciary Act in 1789, and provides that district courts have jurisdiction over any civil action for a tort committed in violation of US law anywhere in the world. The ATS probably aimed to assure that pirates captured in the US could be sued by their foreign victims in order to recover damages, and that foreign diplomats assaulted in the United States could similarly use the federal courts. A recent and very prominent case was brought against one of the world’s largest pharmaceutical companies, Pfizer, for injuries suffered by Nigerian citizens hurt by an experimental antibiotic administered without their informed consent.24 Complicity. ATS actions have also been filed in US federal courts against some of the largest multinationals for their alleged complicity in human rights violations around the world. In Doe vs. Unocal, a group of Burmese villagers sued the US corporation Unocal, and Total S.A., a French company, for their complicity in slavery-like practices and other human rights violations in a joint-venture pipeline project with the government in Burma.25 It is interesting that the Unocal I case did 24

See, among others, P. Zumbansen, “The Conundrum of Corporate Social Responsibility: Reflections on the Changing Nature of Forms and States”, in: R. Miller & R. Bratspies (eds): Transboundary Harms: Lessons from the Trail Smelter Arbitration, (Cambridge: Cambridge University Press, 2005), pp. 245-254. 25 963 F.Supp. 880 (C.D. Cal.1997) (Unical I), 110 F. Supp.2d 1294 (C.D. Cal.2000) (Unocal II), on appeal, 2002 WL 31063976 (9th Cir. 2002). It ends with a settlement of the case 2002. Another case: Abdullahi vs. Pfizer, F.Supp. 2d, 2002 Dist. Lexis 17436 (17. Sept. 2002). See R.G. Steinhardt, “The New Lex Mercatoria”, in: P. Alston (ed):

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not place liability on the assertion that the firm maintained business relationships with a state that violates human rights, nor was it claimed that the corporation was liable for the actions of the state that was the joint-venture partner. Instead, the court mentioned the circumstances under which a private actor can, nonetheless, be held responsible: most importantly, the court established when the corporation commits one or some of the narrow class of wrongs identified by treaty and custom (see Steinhardt, 2005: 195). Policy-making. While corporations have historically had to lobby for influence in legislative processes, they have now become an integral part of policy-making, bringing with them much needed expertise and practical knowledge.26 This can be observed within the European Union. A main channel for firms had been to lobby effectively at national level in order to influence the consensus in the Council of Ministers, but the European Commission has introduced a reverse process (see Woll, 2006). It now seeks to win over firms in order to strengthen the EC’s position vis-à-vis third countries and EU Member States. Corporations are now intensively involved in decisions on trade and trade policy that affect human rights standards.27 But there are also hindering factors that are mainly the responsibility of the state, and these have to do with the international trade system. Regulating influences on the international market include the international trade system and the WTO, and various US and EU agriculture policies (for example, the “Common Agricultural Policies”). The northern countries, for example, reduced their tariffs in the Uruguay Round by less than the poor countries did. Subsidies for production in the northern countries are still enormous. Dairy farmers, for example, receive annual subsidies of $2,700 per cow per year in Japan and $900 in Europe. Every textile job saved by tariffs and subsidies in an industrialised country costs about 35 jobs in developing countries.

Non-State-Actors and Human Rights, (Oxford: Oxford University Press, 2005), pp. 177227, at 195. 26 For rule-making processes in global regulatory networks, see A-M. Slaughter, A New World Order, (Princeton: Princeton University Press, 2004); H. Schepel, The Constitution of Private Governance. Product Standards in the Regulation of Integrating Markets, (Oxford: Hart Publishing, 2005). 27 On the value of advanced modes of administrative co-operative experimentalism that leads to creative problem solutions, see the article by Ch. Joerges & J. Neyer, “From Intergovernmental Bargaining to Deliberative Political Process: The Constitutionalisation of Comitology”, in: (1997) 3 European Law Journal, pp. 273-299.

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The problem of legitimate governance

We have said that the collective actor has enormous capacities to create a tight network of binding rules and controls that would help preserve respect for human rights. Does a right to political participation follow from obligations to respect human rights? We can currently observe a development that counteracts the previously mentioned four assumptions of common sense moralityIn governance theory, we have the widespread presupposition that the individual is no longer the primary political actor internationally, but, if at all, one among many collective actors, such as NGOs, transnational governmental organisations and transnational corporations. While a common sense morality places a great deal of obligations on the individual, a common sense governance theory favours the collective actor as the political agent at the international level. Various attempts are under way to expand the restricted legal status of corporations. One example is that recently, the United Nations Sub-Commission for the Promotion and Protection of Human Rights approved “Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights”, which can be said to be the first comprehensive international human rights norms that specifically address transnational corporations and other business entities (Weissbrodt/Kruger, 2005).28 They establish the responsibilities of companies to respect, secure, and promote the fulfillment of human rights with a special focus on consumers’ and workers’ rights, environmental protection, and national sovereignty. One result of the Commission’s meetings was to define TNCs as fully-fledged legal persons. This is analogous to the status of natural persons in that these entities have both rights and obligations (see ibid.). This would be a landmark in Economic Law. But, from a democratic theory perspective, it has been questioned whether the expansion of status for TNCs should go this far.29 What is the problem with this? If international regulations are decided by private (collective) actors who make decisions according to economic rationality, and not by democratic representatives that voice the interests of their constituents, then, a basic democratic principle will be turned upside down: the constitutional and law-giving power of the people to which all other powers, persons, and associations should be subject, will no longer 28

The full text of the approved ‘Norms’ is also available at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En ?Opendocument. 29 See, for this assumption, the, in other respect, different approaches of J. Habermas, Between Facts and Norms. Contribution to a Discourse Theory of Law and Democracy, (Oxford, Polity Press, 1997); Ch. Joerges & E. Vos, (eds), EU Committees: Social Regulation, Law and Politics, (Oxford: Hart, 1999).

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be supreme, and we face the danger that private self-regulation will become an instrument for further self-empowerment of the already powerful (Brunkhorst, 2002).30 This will strengthen private soft law and will lead to a pluralisation of labour standards as corporations create their own normative rule systems. ILO norm-setting, one should keep in mind, is obliged to respect universal norms whereas corporations are not. At this point, the role of the state comes into play, and, with it, the question of duty allocation between corporations and the state. The state as the representative of its citizens should continue to bear the lion’s share of the burden of creating an institutional environment that facilitates the implementation of human rights duties. It is only through the participation of those affected by human rights violations that we can arrive at legitimate international rules that bind collective actors. Through this external pressure, they have to become much more serious participants in the process of accomplishing human rights in their specific fields of competence.

6

Conclusion

What I have defended here were the following four points: first, I think we have good reasons to expand the notion of human rights duties beyond the constraints of the common sense morality approach and to speak about the obligations of collective actors. Collective actors have become so powerful and influential that they, along with states, contribute to human rights violations. They have adapted to the demands of today’s information society and are much better prepared to deal with complex problems than the individual. Their capacities mean that we should recognise them as important agents in human rights issues, and doing so has advantages over emphasising the obligations of the individual. Secondly, I have demonstrated that public norm compliance initiatives have some advantages over private-public self-regulation, even though both are weak when it comes to sustainable norm enforcement. Therefore, thirdly, the best we can do to fulfil the human rights obligations of collective actors might be – one out of a bundle of strategies – to create a normative legal institutional context that sustains the “pressure for justification” on corporations and promotes the reform of the unjust global order. Finally, I have pointed out that we have, nevertheless, to be cautious, as not all initiatives of private self-regulation are desirable or legitimate.

30

For a defence of a “deliberative democratic constitutionalism”, see, also, P. Nanz, “Democratic Legitimacy of Transnational Trade Governance: A View from Political Theory”, in: Ch. Joerges & E-U. Petersmann (eds): Constitutionalism, Multilevel Trade Governance and Social Regulation, (Oxford, Portland OR: Hart Publishing, 2006), pp. 59-82.

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Habermas, Jürgen (1997). Between Facts and Norms. Contribution to a Discourse Theory of Law and Democracy. Oxford: Polity Press. Hayek, F.A. von (1976). Law, Legislation and Liberty, Vol.2: The Mirage of Social Justice. London/Chicago: University of Chicago Press. Joerges, Ch./Neyer, J. (1997). “From Intergovernmental Bargaining to Deliberative Political Process: The Constitutionalisation of Comitology.” European Law Journal, 3 (3), 273-299. Joerges, C./Vos, E. (eds.) (1999). EU Committees: Social Regulation, Law and Politics. Oxford: Hart. Keohane, R. (2003). “Global Governance and Democratic Accountability”.I In Held, D./Koenig-Archibugi, M. (eds.). Taming Globalization. Frontiers of Governance. Cambridge: Polity Press, 130-160. Koenig-Archibugi, M. (2004). “Transnational Corporations and Public Accountability.” Government and Opposition, 39 (2), 234-259. Kuper, A. (2005). “Redistributing Responsibility. The UN Global Compact with Corporations”. In Pogge, T./Follesdal, A. (eds.). Real World Justice. Grounds, Principles, Human Rights and Social Institutions. Dordrecht: Kluwer, 359-381. Luhmann, N. (1998). Die Gesellschaft der Gesellschaft. Frankfurt/M: Suhrkamp. McBarnet, D. (2004). “Human Rights, Corporate Responsibility and the New Accountability”I In Campbell, T./Miller, S. (eds.). Human Rights and the Moral Responsibilities of Corporate and Public Sector Organizations. Dordrecht: Kluwer, 63-81. Nanz, Patrizia (2006). “Democratic Legitimacy of Transnational Trade Governance: A View from Political Theory”. In Joerges, Christian/Petersmann, ErnstUlrich (eds.). Constitutionalism, Multilevel Trade Governance and Social Regulation. Oxford/Portland: Hart Publishing, 59-82. Pogge, T. (2002). World Poverty and Human Rights. Oxford: Polity Press. Pogge, T. (2004). “’Assisting’ the Global Poor”. In Chatterjee, D.K. (ed.). The Ethics of Assistance. Morality and the Distant Needy. Cambridge: Cambridge University Press, 260-289. Polanyi, K. (2001 [1944]). The Great Transformation: The Political and Economic Origins of our Time, Boston: Beacon Press. Risse, T. (2000). “’Let’s Argue!’: Communicative Action in World Politics.” International Organization, 54 (1), 1-39. Risse, T./Ropp, S./Sikkink, K. (eds.) (1999). The Power of Human Rights. International Norms and Domestic Change. Cambridge: Cambridge University Press. Scheffler, S. (2001). “Individual Responsibility in a Global Age”. In Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought. New York: Oxford University Press, 32-48. Schepel, H. (2005). The Constitution of Private Governance. Product Standards in the Regulation of Integrating Markets. Oxford: Hart Publishing.

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Schutter, O. de (2005). Transnational Corporations and Human Rights: An Introduction, Hauser Global Law Working Paper, http://www.nyulawglobal.org/workingpapers/GLWP_0105.htm. Slaughter, A.-M. (2004). A New World Order. Princeton: Princeton University Press. Smith, A. (1976 [1776]). An Inquiry into the Nature and Causes of the Wealth of Nations. Ed. by R. H. Campbell, A.S. Skinner & Todd, W.B., Oxford: Clarendon Press (The Glasgow Edition of the Work and Correspondence of Adam Smith.) Snyder, F.(1994). “Soft Law and Institutional Practice in the European Community”. In Stephen, M. (ed.). The Construction of Europe. Essays in Honor of Emile Noel. Dordrecht: Kluwer, 197-225. Steinhardt, R. G. (2005). “The New Lex Mercatoria”. In Alston, P. (ed.). NonState-Actors and Human Rights. Oxford: Oxford University Press, 177-227. Wheeler, D./Colbert, B./Freeman, R.E. (2003). “Focusing on Value: Reconciling Corporate Social Responsibility, Sustainability and a Stakeholder Approach in a Network World.” Journal of General Management, 28 (3), 1-28. Weissbrodt, D./Kruger, M. (2005). “Human Rights Responsibilities of Businesses as Non-State Actors”. In Alston, P. (ed.). Non-State-Actors and Human Rights. Oxford: Oxford University Press, , 315-351. Woll, C. (2006). Trade Policy Lobbying in the European Union: Who Captures Whom? MPIfG Working Paper 06/7,

http://www.mpifg.de/pu/workpap/wp06-7/wp06-7.html Zumbansen, P. (2005). “The Conndrum of Corporate Social Responsibility: Reflections on the Changing Nature of Forms and States”. In Miller, R./Bratspies, R. (eds.). Transboundary Harms: Lessons from the Trail Smelter Arbitration. Cambridge: Cambridge University Press,, 245-254.

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1

The Basic Concept of Justice

Any discussion of justice can be seen in the context of Plato’s dialogues.1 The dialogue Republic Politeia deals with the significance of the just and the unjust, of justice and injustice for the actions of mankind. At first, it discusses the question whether a single person should strive to be just in his actions and way of living. Socrates pronounces himself in favour of this. Being just is a contribution to happiness (eudaimonia) and is in line with the soul of man.2 Thus, he argues against the Sophists’ opinion that unjust behaviour should be used to obtain power and success. Socrates particularly criticises an action that appears to be just but is of unjust character and that is propagated by the sophists.3 Such behaviour would promote the dissemination of injustice, norms would get mixed up, the negative consequences for the living together of people would be considerable. Based on Durkheim, we would describe this as anomie, there would be the risks of social separation and discord, maybe even civil war.4 Therefore Socrates seeks a frame of reference for the deeper understanding of justice. This frame of reference is the political order. Justice is defined with regard to the state. (368a ff) First, it is questioned whether the different virtues of the population, their performance and activity patterns, would be part of the political order. If this was not the case, there would be a risk of discord. After the description of life and the social contributions of the classes, the politicians, the guards and the merchants, justice is defined as a basic idea of the order which creates the connection and the division of labour among them. Today, we would say that a political order is just, if 1

2

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Plato: Complete works. Translation into German by Friedrich Schleiermacher, Hamburg 1958. Especially the dialogues Politeira and Nomoi. In the following, this paper mainly refers to Politeia. Cf. Barbara Zehnpfennig, Platon, (Politeia (385 BC) in: Geschichte des politischen Denkens. Ein Handbuch, published by Manfred Brocker, Frankfurt am Main 2007, pp. 14 – 30. Cf. also Rüdiger Bubner, „Wo jeder das Seinige tut, muß der Philosophenkönig engagiert werden“, in: Polis und Staat. Grundlinien der Politischen Philosophie, Frankfurt am Main 2002, pp. 51 – 70. “For the height of injustice is to seem just without being so.” (361a). Cf. Emile Durkheim, The Anomic Division of Labour, in: The Division of Labour in Society, Frankfurt am Main, 1992, pp. 421 – 442. Cf. also Peter Waldmann, Einleitung: Zum Konzept des anomischen Staates, in: Der anomische Staat. Über Recht, öffentliche Sicherheit und Alltag in Lateinamerika, Opladen 2002, pp.7 – 20.

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it integrates its citizens. Therefore, Plato’s general definition of justice is “that one man should practise one thing only, the thing to which his nature was best adapted” or “to do one’s own business.“(433). A little further on, he writes: “Then on this view also justice will be admitted to be the having and doing what is a man’s own, and belongs to him”. (433). According to this, justice would be achieved if every citizen in a political community did his own task, followed his calling, voluntarily or under pressure.5 Alfred North Whitehead interpreted the history of European philosophy as a footnote to Plato.6 Against the actuality of Plato’s concept of justice, it may be argued that model basing on a natural order, on an estate based society (Ständegesellschaft) and on an image of humankind with fixed patterns of behaviour, is not useful any more. Nevertheless, from a current perspective, the question arises whether Plato did not set a standard by his understanding of a just integrative political order which is qualified by the fact that “everyone is doing his own task”, which makes sense outside the reference to a closed state (Ständestaat) as well, and could be interpreted as modern. Based on Plato’s idea, it is possible to think ahead in two directions: one could evaluate the state order which ensures or not ensures that its citizens are doing their own task, one could, however, also analyse the just and unjust elements in the actions taken by a powerful politician. The latter will lead to a discussion of the abuse of political power. Most of all, however, the center of Plato’s definition of justice is the thesis of an inseparable connexion between the life of the citizens and the political order: The citizens are not able to do their own tasks without the laws and rules of the state. Outside such an order ensuring the equality of the citizens, the individual loses his own.7 But the laws of the state are only legitimate if they enable the citizens to their own tasks. If we would link Plato’s notion of justice with personal autonomy, equality of all people, freedom to a self-determinated life, we would exaggerate the frame of interpretation. To deal with the question, whether one’s own task is part of the free will of a human being, or is caused by a external force is a central problem of the modern philosophy of justice. Opposed to Plato, however, are later ideas of natural law that understand the life of humankind within a state order as a loss of their “natural” freedom and are mainly directed against feudalistic systems. In contrast, “doing one’s own task” semantically keeps showing up in concepts of freedom that do not reject the state as an integrating regulatory power that provides freedom, but makes it possible like Hegel’s Philosophy of Right. Even the criticism of a political system that impairs 5

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Cf. Karl Popper, The Open Society and Its Enemies, London 1945. In this book, Plato is accused of having designed a totalitarian state. “The safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato.” Alfred North Whitehead, Process and Reality. An Essay in Cosmology, New York, London, 1979, p. 39. Cf. Christoph Kann, Fußnoten zu Platon. Philosophiegeschichte bei A.N. Whitehead, Hamburg 2001. For the significance of the individual in Plato cf. Karl Heinz Haag, Das Unwiederholbare, in: Philosophischer Idealismus, Frankfurt am Main 1967, pp. 5 – 17.

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the freedom of the individual and thus becomes unjust toward the individual could be associated with Plato’s concept, considering the numerous dialogue sections that prompt the individual to take a critical position to opinions that had been common at that time. Even though Plato’s concept of the good state is dominated by the idea that the ruling class, in Plato’s case the philosophers, have insight in the well-being of their citizens, it must not be overlooked that the aim of the dialogues is to enhance the critical sense of judgement of the people talking and not to justify the political system. Plato’s concept of justice initiates criticism of politics without relieving the state of its responsibility to establish a just order that integrates the citizens.8 Contrary to its reputation, Plato’s philosophy can be repeatedly read as supporting to an individual’s attitude of resistence to the collective, even though it is made clear that the individual would not be able to exist without the collective, neither in physical life nor as a spiritual being. Therefore, it is an even more serious business for Plato to ask questions concerning the political order. Plato places the concept of justice in the centre of his political philosophy which assigns the state the task of creating the preconditions for integration and equality so that everyone can do his own task. Thus, he, at least implicitly, makes a contribution to the definition of freedom as a subject of political philosophy. Aristotle follows him and brings up additional definitions.9 In Aristotle, especially in his definition of slaves as “tools”, it becomes clear that a concept of justice that is characterised by orientation to the natural order would describe issues as just that are considered absolutely unjust from today’s perspective. The Classical Era was not yet about all people, and it was not considered the state’s task to integrate all people. Slaves, women and Metics were not regarded as citizens whom politicians would owe, according to the philosophers, the establishment of a just order.10 Against the backdrop of the arbitrary decision of a basic democratic institution, the ostracism, the trial of Socrates, the death sentence, Socrates’ refusal to flee and 8

Uncritical behaviour directed at stabilising power per se is shown by the Sophists and not by Socrates who articulates Plato’s opinion. 9 Aristotle, Politics. Translated and published by Olaf Gigon. Munich 1978. “[…] the good in the political field, that is, the general advantages justice, it is therefore thought by all men that justice is some sort of equality, and up to a certain point at all events they agree with the philosophical discourses in which conclusions have been reached about questions of ethics. For justice is a quality of a thing in relation to persons, and they hold that for persons that are equal the thing must be equal. But equality in what characteristics does this mean, and inequality in what? This must be made clear, since this too raises a difficulty, and calls for political philosophy.” (1282 b 20). Cf. the interpretation by Rüdiger Bubner “Gerechtigkeit herrscht, wo jeder das Seinige tut“, in: Freiheit oder Gerechtigkeit. Perspektiven Politischer Philosophie, Leipzig 1995, pp. 176 – 193. 10 Cf. on real history: Christian Meier, Die Entstehung des Politischen bei den Griechen, Frankfurt 1980. Peter Funke writes: “... auch in der Blütezeit der athenischen Demokratie alle politischen Kompetenzen in den Händen von höchstens 15% der Gesamtbevölkerung lagen.” (p. 60). Peter Funke, Athen in Klassischer Zeit, Munich 1999.

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the self-enforcement of the sentence by the convict raises a justice-related problem that was difficult to solve using the legal concepts of that time. Defining justice on the basis of a political order that declared human rights and human dignity as basic law in its constitutional make-up was still far away. However, we must not forget that principles of the rule of law, political systems and the actual integration of the population are still different mathers.

2

Justice, Freedom, Equality, Integration

As the images of human nature due to the change due to the influences of Christianity and due to the humanism, but mostly due to the Enlightenment and German idealism, the concepts of freedom and equality, which remain implicit in the ancient understanding of justice, develop their own, well-differentiated contexts and interpretations. New aspects of human existence are considered, and humankind is increasingly chosen as a new reference. Step by step, justice is distinguished from right and right is distinguished from law. Morality and morals are separated as well from philosophy, politics and religion. Human existence, and thus the contexts in which issues of justice are raised and discussed, is perceived in a more complex way. The difficulties of defining the concept of justice are aggravated by the fact that the philosophy of the Enlightenment separates the substantiation of freedom and political order. Thomas Hobbes, John Locke and Jean-Jacques Rousseau, for example, criticise the feudalistic practice of power on the basis of a definition of freedom founded on natural law: All humans are free as natural creatures. The political order takes this freedom from them, laws restrict their natural rights. Security and integration by the state mean a loss of freedom. The connection between political order and the concept of justice in the tradition of Plato and Aristotle is revoked, or reversed: The state becomes an entity of constraint and subordination which negates the freedom of all men. In many states on the European continent, the cruel civil and denominational wars make the state appear as the only power suitable to establish peace and justice. Considerable differences in the idea of political order become apparent between the continental state concept, which is characterised by this experience, and the Anglo-Saxon state concept.11 The continental development is rather in line 11

„Der moderne Staat entstand in Gestalt des absoluten Staates, und zwar nicht aus dem Machtstreben der Fürsten und der Unachtsamkeit der Gesellschaft, sondern aus der gesellschaftlichen Lage, die die konfessionellen Bürgerkriege heraufbeschworen hatten. Staat und Souveränität waren neue Begriffe, mit denen die veränderte politische Wirklichkeit erfasst wurde. Das erklärt zugleich, warum in England weder der Begriff des Staates und der Souveränität, noch die Unterscheidung von Staat und Gesellschaft, öffentlichem und privatem Recht in derselben Weise aufkommen konnten. Es fehlt am realen Substrat dieser Begriffe. Die englische Krone besaß Prärogativen, aber keine oberste Gewalt. Es erhielt sich vielmehr eine Anzahl unabhängiger Gewalten, und vor

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with the political philosophy of Thomas Hobbes, who travelled to France several times, than with John Locke’s. According to Hobbes, the subjugation of the citizens is not reprehensible as long as the Leviathan ends the civil war and ensures peace. The essence of his state theory is that the citizens have to submit to the laws issued by the Leviathan and to comply with its contract. The question whether or not the laws represent a just order is not being given priority. He advises the Leviathan not to deliberately destroy the customs of his citizens. Within the state, the individual is not entitled to just treatment, outside the state, however, in the natural state, where everybody is free, there is neither justice nor integration.12 For John Locke, in contrast, the violation of individual freedom, founded on possession and property, by an intervening state raises problems of legitimacy and justice. The Anglo-Saxon state concept, following Locke’s philosophy, sees the free agreement and formation of a will of citizens as the basis for the exertion of political power. People per se are free and mature and merely need the state to correct and monitor the social contract initiated by mature citizens. At the present, Anglo-Saxon justice-related philosophies deal with definition procedures and the approval by mature citizens who are equal by constitution, who independently implement their expectations and who do not need a state to do that. This becomes particularly clear in John Rawls.13 In the course of absolutistic forms of rule and their revolutionary defeat, which required revolutionary state power, G. W. F. Hegel writes, contrary to the philosophy of the Enlightenment esteemed by him, that the state was the “reality of freedom”. In his philosophy of right, Hegel prepares a model state that makes the freedom of its citizens the general and thus equality-ensuring legal basis. State, family and civil society are distinguished as different spheres containing their own rules of conduct and codes of practice, values and experience which form the lives of the individuals. With its corporations, however, the state limits the sphere of civil society and its tendency toward extreme inequality. Thus, for Hegel justice comprises both the validity of a general law which grants the same freedom and the same basic rights to every individual, and the legal protection of different spheres of action such as acting in a market-economy environment or loving passionally. This even allows room for unjust behaviour.14 The state allows the citizens freedoms to decide for different “spheres of justice” (Michael Walzer), and still integrates them allem das common law und sein Sachwalter, die Gerichte, konnten eine von der Krone relativ unabhängige Position behaupten. Der wichtigste Grund dafür liegt in einem frühzeitigen Verfall des Feudalsystems mit der Konsequenz, dass Adel und Bürgertum sich nicht scharf gegeneinander abgrenzten und infolgedessen das Land als Ganzes ein Gegengewicht zum Herrscher bildete.“ Dieter Grimm, Recht und Staat der bürgerlichen Gesellschaft, Frankfurt am Main 1987, p. 61. 12 Cf. Thomas Hobbes, Leviathan, Stuttgart, 1974. 13 Cf. John Locke, Über die Regierung (The Second Treatise of Government). In der Übersetzung von Dorothee Tidow, Reinbek bei Hamburg 1966; cf. John Rawls, A Theory of Justice, Cambridge, Massachusetts 1971. 14 Christianity assumes that God loves all men, but men do not love for reasons of justice, and if they love they are not just.

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by means of a global legal system and politics. These different freedoms are protected and limited by corporations.15 The significance Hegel places on the corporations, the division of labour between state and civil society (market), and the emphasis on a control function for the state that creates order, repeatedly give reason to identify an early blueprint of the ideas of “the German model of capitalism (Rheinischer Kapitalismus) in Hegel’s Philosophy of Right and state.16 In the German model of capitalism, too, different concepts of integration and justice are institutionalised and politically controlled at the same time. The Right and Left Hegelians dispute about the extent to which the state was obliged to ensure a just order that goes beyond the legal equality of citizens, and includes political and social aspects, did not question the centering of the state of Hegelian philosophy: The great emancipation movements of the bourgeoisie and the working class rebelled against disorder and immaturity and fought for civil, political and social freedoms. It is due to them that the freedoms attained do not consist of arbitrarily granted acts of grace but have been institutionalised and become permanent and generalised as basic rights for all citizens. The definition of basic rights and the inclusion of these basic rights in the constitutional fundaments of the states represents a major step in the interpretation and realisation of the Platonic concept of justice. In his reconstruction of western civilisation, the famous British theorist of the modern welfare state T. H. Marshall (1893 – 1981) focuses on the steps of emancipation of the populations which are expressed in the granting of citizen rights. He bases his argument on the following developments: In the 19th century, civil rights ensuring individual freedoms have been attained, in the 20th century, the rights to participate in political power have been achieved, and in the 21st century, social rights are gradually established which ensure access to economic welfare and social security for the individual. The institutions of the welfare state, with which expectations of freedom, equality and integration are associated and make up a special part of a political order, are based on the idea of justice.17 While the significance of civil and political rights for the emancipation and education of individuals is undisputed in modern societies, the social rights and their implementation in a social state are politically highly controversial. In the past twenty years, for example, the neo-liberal position kept arguing that in the era of globalisation the continental social states suffered considerable competitive 15

Cf. G. W. F. Hegel, Grundlinien der Philosophie des Rechts, Theorie Werkausgabe Band 7, Frankfurt am Main 1970. Cf. also Rüdiger Bubner, Hegels Staatsbegriff, in: ders., Polis und Staat. Grundlinien der Politischen Philosophie, Frankfurt am Main 2007, pp. 153 – 173. 16 Cf. Prominent economic historian Werner Abelshauser from Bielefeld keeps referring to this connection. Most recently: Werner Abelshauser, Des Kaisers Neue Kleider? Wandlungen der Sozialen Marktwirtschaft, Broschüre des Roman Herzog Instituts 2009, pp. 15 et seq. 17 Cf. T. H. Marshall, Staatsbürgerrechte und soziale Klassen, in: Bürgerrechte und soziale Klassen. Zur Soziologie des Wohlfahrtsstaates, Frankfurt am Main 1992, pp. 33 – 94.

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disadvantages compared to Anglo-Saxon capitalism, were less flexible and would not be able to maintain the achieve wealth in the long term. The high unemployment rate is mentioned as an indicator. However, the Anglo-Saxon models of restraint on the part of the state and intensive market orientation are fraught with undesired social consequences such as an intensive social rift. The deficiencies of social justice are discussed within both systems, although the perception of the problems differs a lot. The concept of justice in according to Plato allows a comprehensive and fundamental perspective of interpretation and evaluation of human relations and thus avoids an exclusive allocation to specific subjects, such as personal tragedies, living conditions and legal systems, for example. Especially in this function, it is indispensable. Most of all, the concept provides a dynamic and power-critical potential for evaluation competence with regard to general, effective concepts of order, which is essential for democratic publics and social movements.

3

Ideas, Interests, Institutions

Modern societies cannot be democratically governed on the basis of the rule of law over a longer period of time if this opposes the concepts of justice predominant among the population. Ideas of a just society are normally an implicit component of the cognitive maps of people used to evaluate the political and social order. Therefore, governments face the pressure of having to present their politics as just in line with the population on the one hand, and having to ensure that traditional concepts of justice will be democratically further developed in popular perception and that new topics and challenges will be processed. In Germany, certainly not only the political parties are tasked with that, but institutions of the educational system and of all civil society institutions as well. At the same time, however, it is not clear how and by what the major people’s parties are to be replaced, which perform this function to a decreasing extent. According to political scientist Franz Walter from Göttingen, one of the reasons for this is that the parties’ leading elites have hardly any connections to the lower socio-economically precarious and educationally disadvantaged social classes, and thus exert less influence on them.18 The traditional and overlaying concepts of justice that predominate among the population and exert influence on the structure and development of institutions and the decision-making of governments are rarely homogenous. They are affected by traditions, mentalities, historical experience and its medial processing. Social movements and the programmes of parties, associations and popular initiatives representing these movements and their ability to mobilise the base play an impor18

Cf. Franz Walter, Baustelle Deutschland, Frankfurt am Main 2008; Im Herbst der Volksparteien. Eine kleine Geschichte von Aufstieg und Rückgang politischer Massenintegration, Bielefeld 2009; Prekariat-Studie; Fatale Furcht ergreift die ewigen Verlierer, SPIEGEL ONLINE, 2 April 2009 “http://www.spiegel.de/politik/deutschland/O” http://www.spiegel.de/politik/deutschland/O, 1546, druck-616392, 00html.

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tant role. An important role is also played by religious dogmas and their secularised interpretations. In addition, multicultural influence brought in by immigrants may be exerted as well. It is of major importance, to which extent the institutions of the educational system will succeed in conveying concepts of justice to the following generations. With caution, empirically effective concepts of justice can be allocated to a collective awareness as defined by Emile Durkheim, on the basis of which individuals and collectives perceive and interpret social facts. Since modern societies are organised as working societies and social states, the life courses of individuals are characterised by their chances on the labour market, their belonging to social classes and the institutions of the welfare state which contribute to opening up opportunities, to minimizing risks and to promoting social mobility. Therefore, the social state arrangements uphold the social concept of a just and integrative order in a very special way. Particularly in modern societies, in which the bonds and support of individuals by traditional communities such as families, religious and neighbourhood communities decrease, the institutions of the social and welfare state play a mediating role, function as a social “glue”, and contribute to cohesion. The expectations may differ within the different countries and groups of the population, ranging from the hope of being caught in the event of a fall or getting a new chance, to the improvement of their income situation or the prospect of a life free from cares. Disappointment and the loss of confidence are a grave issue in any case and pose a potential for conflict that brings about disintegration, rifts and aggressions.19 In Germany, the Basic Law establishes the connection between human dignity, freedom, equality and justice. Subsequent to the inviolability of human dignity and the duty of all state authority to protect it (Article 1 (Paragraph 1), it reads: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and justice in the world.” (Basic Law, Article 1, Paragraph 2), followed by articles demanding personal freedom and equality before the law. Further on in Article 20, the political system in Germany is defined as “a democratic and social federal state”.20 Between the legal fixation of such basal ideas of justice and the political concepts, however, there is “a wide field” (Theodor Fontane) of leeway for creativity and interpretation. Even at the 19

Lutz Leisering provided an analysis of the discourses on justice with an effect on politics conducted in Germany in the past decades. in the end, some questions remain open: „Ist die reformistische, sozialstaatliche Perspektive reformierbar, insbesondere nach dem konzeptionellen Leerlaufen der Sozialdemokratie und dem Erstarken von Parteien links von der SPD, die „soziale Gerechtigkeit“ als sozialstaatliche Restaurationssemantik verwenden?“ Lutz Leisering, Gerechtigkeitsdiskurse im Umbau des deutschen Sozialstaats, in: Stefan Empter, Robert B. Vehrkamp (Editors), Soziale Gerechtigkeit – Bestandsaufnahme, Gütersloh 2007, pp.77 – 108, here p. 103. 20 Cf. Hans F. Zacher, Der deutsche Sozialstaat am Ende des Jahrhunderts, in: Stephan Leibfried, Uwe Wagschal (Editors), Der deutsche Sozialstaat, Bilanzen – Reformen – Perspektiven, Frankfurt/Main, 2000, pp. 53-90, here pp. 56 et seq.

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present time, the definition of equality and integration as a prerequisite for the establishment of a just social order still is the subject of fights for political rule and power, and a priority topic of social politics. In Germany a vehement discourse on justice has flared up, triggered by the perception of social rift and crises, which mainly focuses on ostensible examples such as managerial salaries and social assistance benefits (the so-called “Hartz IV”). We consider it progressive to ask which concepts of justice substantially dominated and are still dominating the socio-political path here in Germany. For our analysis, we refer to the typology of welfare state regimes developed by the Danish political scientist Gøsta Esping-Andersen. His analyses allows to a discussion of different concepts of justice and a critical verification of their implicit assumptions and institutional preconditions.21

4 4.1

Concepts of Justice in a Conservative-Corporate Welfare Regime Different Welfare States, Different Capitalisms

Gøsta Esping-Andersen has strongly influenced the latest state of research on welfare states. Besides the typology of three welfare regimes developed by him, especially his insight that there is no such thing as “the” welfare state, has gained acceptance. According to him, welfare states were characterised by the implementation of different programmes, the involvement of parties and of social movements, the integration and exclusion of population groups and by the influence exerted by traditional fundamental cultural patterns of order and legitimacy. The aims range from securing livelihood on the brink of poverty via maintaining the current status, up to high-level social security.22 As shown by Gøsta Esping-Andersen, the understanding and orientation of welfare state institutions vary according to the paths taken by the nation states (“ghost of the institutional path”), which cannot be easily left in times of Europeanisation and globalisation either. They are based on the compromises and consensuses achieved by the parties in social struggles. Their bearers were able to establish and strengthen their social position and power on the foundation of the existence of these institutions. In contrast to many globalisation theories, Gøsta Esping-Andersen assumes that the transition of advanced modern society from an industrial to a service society, that can be observed worldwide, takes place according to endogenous development 21

Cf. Gøsta Esping-Andersen, The Three Political Economies of the Welfare State, in: The Three Worlds of Welfare Capitalism, Cambridge 2003, pp. 9 – 78. 22 Cf. Fritz Scharpf, Sozialstaaten in der Globalisierungsfalle? Lehren aus dem internationalen Vergleich; in: Max-Planck-Gesellschaft, Jahrbuch 2000, Munich, pp. 59 – 73.

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paths and structural patterns controlled by socio-political decisions in times of globalisation and Europeanisation as well.23 Nevertheless, the debates on globalisation conducted in the past twenty years have affected the self-perception of many continental national states and the concept of their social politics. In many places, the governments enforced an increasing focus on market processes and the reorganisation of socio-political arrangements in response to globalisation. As a matter of fact, political strategies that typically come from an Anglo-Saxon context had been implemented into continental policy settings, such as “from work to welfare” originating in the USA and implemented by Tony Blair and Gerhard Schröder.24 However, this policy increasingly faced criticism. Upon the outbreak of the financial market crisis which started in the USA, the call for revision and a recall of the concepts of order and justice on which the continental systems are founded cannot be ignored. In Iceland, which was considered a neo-liberal model state, and which got into a serious banking crisis, a radical political change was initiated a few months after the devastating extent of the banking crisis became obvious. Many people feel the need to search for the causes of the crises and to raise the question as to which extent a crisis that abruptly wipes out social capital and the life perspectives of people is not an acceptable but an avoidable injustice. Therefore, it is logical to debate different models of capitalism, as the former general manager of a big French insurance company, Michel Albert, initiated.25 Albert is mainly interested in an analysis of the differences between continental capitalism (le modèle rhénan) and Anglo-Saxon capitalism (le modèle néo-américan).26 Typical examples for “le modèle rhénan” include Germany and France. His central thesis is that there is no such thing as “the” capitalism. In his opinion, the conflict between “le modèle rhénan” and “le modèle néo-américan” has replaced the system rivalry between East and West, between socialism and capitalism, and has been ideologically, politically and economically rampaging beyond national borders. Albert presumes that the decisive battles will be fought on EU territory. He raises the question as to which capitalist system is closest to the concept of just participation. His plea in favour of “rhénan” capitalism primarily aims at the significance of the “mixed” and “public” goods such as infrastructures, education, 23

Cf. Gøsta Esping-Andersen Post-Industrial Structures: An Analytical Framework, in: Gøsta Esping-Andersen (Ed.), Chancing Classes. Stratification and Mobility in PostIndustrial Societies, London, Newbury Park, New Delhi 1993, pp. 7 – 31. 24 Cf. Tony Blair, Gerhard Schröder, Der Weg nach vorne für Europa, no indication of place of publication, 1999. 25 Cf. Michel Albert, Kapitalismus contra Kapitalismus, Frankfurt/Main 1992. A more recent contribution by Michel Albert is “Die Zukunft der Sozialmodelle des europäischen Kontinents”, in: Wolfgang Streeck (Ed.): Internationale Wirtschaft, nationale Demokratie, Frankfurt/M. 1998, pp. 195 – 209. 26 Hall and Soskice use the terms “coordinated market economies” and “liberal market economies” for a similar purpose, cf. Peter A. Hall, David Soskice, An Introduction to Varieties of Capitalism, in: Peter A. Hall, David Soskice (Ed.), Varieties of Capitalism. The Institutional Foundations of Comparative Advantage, Oxford, 2001, pp. 1 – 68.

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health care, and security which offer chances for participation in a society of social injustice, while neo Americanism minimises the provision of public goods and thus increases social injustice.27 These considerations lead back to Esping-Andersen, who makes a distinction between the development of social politics in the Scandinavian countries and the “rhénan” countries. He does not only base his analyses on the functional systems state and market, but also integrates the significance of the family system and thus contributes to a better understanding of the different concepts of justice that refer to the respective dominant functional systems. Combining central characteristics which show deviation if applied to specific reference societies, his ideal-type analysis allows an overall view of cultural, socioeconomic, and political developments. Despite manifold criticism in the specialist literature, the models designed by him still contribute to identifying characteristic paths which are followed by real existing welfare states.28 The current discussion about different models of capitalism (Rheinischer versus Angelsächsischer Kapitalismus) for example, confirmed and specified rather than falsified the application of the conservative corporate ideal type to Germany. 4.2

Three Worlds of Welfare Capitalism

Social rights Gøsta Esping-Andersen’s construction of types of welfare states is based on of several argumentation levels and criteria: Foremost is the concept of social rights.29 The basic idea is that the access to welfare services is governed by rights applying to every single citizen. Linked with that is a concept of justice that ensures that individuals do not become personally dependent on other people. This spares them feeling humiliated in front of others, forced to be thankful or confronted the inability to reciprocate.30 As the legislative power, the state is obliged to ensure that legal rights can be made up by corresponding services. The labelling of the range within which these welfare benefits 27

Michel Albert, loc. cit. 1992, pp. 106 et seq. Cf. our book: Christiane Bender, Hans Graßl, Arbeiten und Leben in der Dienstleistungsgesellschaft, Konstanz 2004. 29 Cf. Gøsta Esping-Andersen, loc. cit., 2003, pp. 21 et seq. 30 From a strictly platonic perspective, it is better for the soul to do good than to receive good. According to this, altruism and egoism are not too far apart from each other. The question is, how the person feels who is dependent on voluntary assistance in an emergency situation. In contrast to support within a family where close relationships and emotions, a joint past, and opportunities for reciprocity make it less offending to accept help, the dependence on more or less coincidental support by strangers with no opportunity for reciprocity can be perceived as offending. If one is “taken care of” by a person on a professional basis, the feeling of offence may be less intense because this person is “just doing his or her job”. 28

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are guaranteed as social rights provides the basis for the distinction of the different welfare regimes. The Scandinavian states ensure the broadest access to welfare benefits by social rights, which, according to Esping-Andersen, belong to the social-democratic type of welfare regime. Welfare benefits such as risk protection, education, health care, professional education, re-integration into the labour market are granted as citizenship rights. Esping-Andersen considers Sweden, which he repeatedly analysed, as an example of a generously integrative and egalitarian society.31 Individuals receive continuous support by the state throughout their life. The aim pursued by the state, however, is that the support measures are ended with by the beginning of gainful employment. This model is suspected of being particularly “egalitarian” in terms of bureaucracy, and thus unjust toward personal fates. However, this is opposed by the fact that the personnel-intensive public sector makes an effort to implement measures that focusing on individual cases. In the countries of Central and South Europe, which are combined in the model of the conservative corporate welfare regime, social rights are granted, but the concept of order behind them and the associated concept of justice are totally different. Let us take the example of Germany: Most welfare benefits are not granted as citizenship rights but are dependent on employment status. The supporting pillar of the German social state, social insurance, protects employees and their family members (spouse and children) from social risks, however, at very different levels, depending on the amount and period of the contributing payment. The legal cash management system supervised by the state and the private insurance companies pay according to the employees’ employment status on the labour market and according to income. The state ensures a statutory minimum allowance for those who are not available to the labour market. They are protected from serious material hardship. However, the integration service rendered hardly levels out social inequalities. Reparatively designed and not including the educational system, the predominant concept of social politics aims at stabilising differences in society. Thus, justice is understood as the protection and stabilisation of the economic, social and cultural status obtained by classes, strata and families.32 In the Anglo-Saxon countries featuring the liberal welfare regime model, state benefits merely contribute to securing people’s livelihood, not even to avoiding poverty. Social rights are granted at a very low level. The basic idea of social politics focuses on self aid and empowerment. The legislator rather tends to cut social benefits than extending them. It promotes those who help themselves, for example, in the form of private life insurance. The legal right to social assistance in the case of incapability (of gainful employment) is determined by verifying the needs of persons in need and is quite low. The same applies to the payment of legal old-age insurance. Due to fiscal policy measures, the support measures granted by the 31

Cf. Gøsta Esping Andersen, Politics against Markets, The Social Democratic Road to Power, Princeton, 1985. 32 Cf. Franz-Xaver Kaufmann, Herausforderungen des Sozialstaates, Franfurt am Main 1997.

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federal states for employees are below the statutory minimum wage. To compensate for this low assistance by the state, voluntary support initiatives such as neighbourhood work, honorary positions, foundations, popular initiatives and support groups play an important role. Since the state is traditionally not available as an addressee for claims for social justice in the Anglo-Saxon state theory, the citizens feel obliged to become active themselves within the meaning of civil society. Their activities represent commitment and empathy, but also attention for oneself and salvation of one’s conscience. The causes of deprivation remain unaffected.33 In this welfare regime, there is barely any integration, the integrating entity in the Anglo-Saxon countries is the labour market. Decommodification At the second level of argumentation, Esping-Andersen deals with the central criterion of decommodification.34 Associated with that is criticism of Karl Marx. According to Esping-Andersen, analyses of socio-political arrangements that are detectable in all modern industrial state disprove the prognosis by Marx and later Marxists saying that an increasing part of the population will be dependent on the labour market, on selling one’s workforce as a good. On the contrary. Although all modern societies are characterised by the fact that an increasing part of the population makes their living by gainful employment, this does not mean that their income is a consequence of their employment alone. Even though purpose and dimension strongly vary in terms of quality and quantity, minimum allowance, social insurance, transfer payments such as local cost-of-living allowances, child benefit and parental allowance, and remuneration in the public service, are income contributions that are granted independently of the labour market. In Germany, the share of such transfer payments in the household income increases permanently. Therefore, social politics, says Esping-Andersen, deeply affect the socio-structural system of strata, classes and milieu. Esping-Andersen classifies the welfare state in accordance with the range of these interventions. Repeatedly referring to Sweden as a paradigm, the model of the social-democratic welfare regime ensures social security at a high middle-class level. There is hardly any risk of poverty. Especially the risks of the labour market are compensated for by socio-political instruments that allow progress for the individual. Charity work as in the Anglo-Saxon countries is barely practised in the fields of 33

This is the reason why we do not feel good with regard to authors like Alastair MacIntyre, Michael Walzer and Amitai Etzioni who feel obliged to promote communitarism. 34 “It is as markets become universal and hegemonic that the welfare of individuals comes to depend entirely on the cash nexus. Stripping society of the institutional layers that guaranteed social reproduction outside the labor contract meant that people were commodified. In turn, the introduction of modern social rights implies a loosening of the pure commodity status. De-commodification occurs when a service is rendered as a matter of right, and when a person can maintain a livelihood without reliance on the market.” Gøsta Esping-Andersen, loc. cit., 2003, p. 21 et seq.

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poverty relief, and support services for families and individuals (soup kitchens, food banks, fund raising). The state church, too, plays a minor role in social support and integration.35 The model of the conservative corporate welfare regime, Germany often in the focus of the analysis, is based on the protection of individual classes, strata and occupational groups from existential hardships. Social politics are intended to have a cushioning effect and are therefore designed for status preservation, also in the case of occurring risks. The women research community reproached EspingAndersen with not having pointed out the limited decommodification opportunities for women separately, which either resulted from their dependence on their husbands or often were rather low due to their intermittent labour force participation.36 In the European Union, Germany and France provides the greatest family-political services. In both countries, families receive considerable transfer payments that make them less dependent on the labour market.37 The community work of the churches, the welfare associations and numerous popular initiatives contribute to supporting people in risky living situations. In the model of the liberal welfare regime, people not capable of working are granted social assistance related to their needs to ensure their survival, otherwise, however, policy refrains from implementing interventional measures in the field of social politics. For the individual employee, the chance is low to avoid poverty outside his or her labour force participation. The dependency of those in precarious on Charity is great.

35

Franz-Xaver Kaufmann, Varianten des Wohlfahrtsstaats, Frankfurt am Main 2003, pp. 161 – 204. 36 Cf. among others Julia S. O’Connor, From Women in the Welfare State to Gendering Welfare State Regimes, in: Current Sociology, Journal of the International Sociological Association, Volume 44, Number 2, Summer 1996, London, p. 61 et seq.; Ann Orloff, Gender and the Social Rights of Citizenship: State Policies and Gender Relations in Comparative Research, in: American Sociological Review, 58, 3/1993, pp. 303 – 328; Annette Borchorst, Welfare State Regimes, Women´s Interests and the EC, in Diane Sainsbury (ed.), Gendering Welfare States, London 1994, pp. 26 – 44. Esping-Andersen responded to this criticism in: Comparative Welfare Regimes Re-examined, in: Social Foundations of Postindustrial Economies, Oxford 2000, pp. 73 – 98; cf. Gøsta EspingAndersen, A New Gender Contract, in, Gøsta Esping-Andersen, Why We Need a New Welfare State, Oxford, New York 2003, pp. 68 – 95. 37 Cf. Franz-Xaver Kaufmann, loc. cit. 2003, zur Frankreich und Deutschland: pp. 213 – 247 and pp.248 – 280.

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The Systems State, Family, Market At a third level of argumentation, Esping-Andersen introduces the existing sociopolitical concepts of order that lead to favouring the systems state, family (private households), or market. Within the development paths of the national states, the concepts of freedom, equality, integration, and justice are linked with different institutions and interpretations. In the Anglo-Saxon countries with their tradition of criticizing the state and its politics these notions have been linked with the formation of a free market economy. Markets are considered as distributors of welfare and justice. Welfare benefits should be granted to those who have earned it by gainful employment.38 Conversely, the strong importance of the state was preserved in the continental European states in which the absolutistic systems could only be removed by establishing new power structures. The middle class had to fight against the ruling representatives of the old world, but especially in Germany, Austria and Italy, it imitated the “old world”, looked for alliances and dissociated itself from the rising working class. In Sweden, in contrast, the “strong position of free peasants” (Franz-Xaver Kaufmann) played a major role.39 In the 20th century, the countries of the social-democratic welfare regime were characterised by coalitions of peasants, bourgeois, and rising working classes, even with monarchy. Social-democratic governments were continually in power over longer periods and thus able to implement their concepts. The state serves as the key instrument for the attainment of social demands. It is prominently considered the addressee that has to provide for a just social order, integration and general welfare. This includes the task of ensuring an adequate provision for the citizens, and compensating for social, family-related, regional, and ethnic inequalities that impede social participation. In the national identity of the Scandinavian states, the collective goods accessible to all, well-developed infrastructures and a professionally run public service maintain a prominent position in order to give the population an equal share in welfare. “Welfare for all” is a legitimate objective of social politics and is largely accepted. Economically, this is achieved by reallocation of profits, high consumption taxes and a high tax burden on the population. This requires an attitude of solidarity among the population.40 The idea that justice means not forcing anybody, but leaving it up to everybody to freely choose how to organise their social security is alien to the system. The individual cannot improve

38

For this, evidence can be found in the sources Max Weber analysed for his Protestant Ethic. 39 “Skandinavische Forscher sehen in dieser starken Stellung des Bauerntums einen entscheidenden Faktor für die Entstehung des volksweiten und nicht auf die Industriearbeiterschaft beschränkten skandinavischen Modells der Wohlfahrtsstaatlichkeit.“, in: Franz-Xaver Kaufmann, loc. cit. 2003, p.164. 40 Cf. Hartmut Häußermann, Walter Siebel, Dienstleistungsgesellschaften, Frankfurt/Main 1995, pp. 67 – 80, here: p. 72 et seq.

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his living conditions by taking advantage of his financial resources, but merely by the democratic formation of will. In the countries of conservative corporate welfare regimes, the state is considered the authority that controls social processes and that intervenes in the laws of the market. This is particularly due to corporatism and a close cooperation and task sharing between state, churches and associations. The political sector support the associations, which in turn obtain major advantages for their members. On the one hand, they accomplished considerable integration, on the other hand, it is difficult for new social groups to enforce their right to participation. From this perspective, Germany appears as a highly organised civil society. Distributing welfare to everybody in equal shares is not the aim. The German variant of the continental capitalism (Rheinischer Kapitalismus) links the conservative element of maintaining the achieved, strengthening and protecting families from risks, and the liberal element of delegating tasks of social and labour market politics and stabilising the power of the citizens.41 For example, many tasks of sovereignty are not performed by state authorities but by “corporations under public law” (Körperschaften des öffentlichen Rechts) in order to provide areas of activity for the “organised power of citizens”. The establishment of the principle of subsidiarity as a basic concept of order requires the state to refrain from interfering with family matters or with areas that can be covered by civil society organisations, churches, associations, or clubs.42 Here, justice means protecting existing structures and inequalities. Promoting the autonomy of families is considered a socio-political aim. This becomes apparent in the conceptually and theoretically founded differentiation of upbringing and educational tasks.43 In literature, this form of social politics is occasionally labelled “tailored to needs”, however, it is overlooked that family policy used to be geared to the so-called “strong housewife-breadwinner model” for a long time and the other family members, wives and children, did not naturally benefit from it. In the context of this family model, a distinct special morality was able to last, which split the concepts of justice according to gender. The rigid forms of gender-specific division of labour are gradually eroding. Therefore, the German social state, which is founded on the activities of families and civil society, offers relatively few public services.44

41

Cf. Franz-Xaver Kaufmann, Sozialpolitisches Denken, Frankfurt am Main 2003a Cf. Christoph Sachße, Subsidarität: Leitmaxime deutscher Wohlfahrtsstaatlichkeit, in: Stefan Lessenich (Ed.), Wohlfahrtsstaatliche Grundbegriffe. Historische und aktuelle Diskurse, Frankfurt/New York 2003, pp. 191 – 212. 43 Hans Graßl provides a comparative study of the educational systems in Germany, Sweden, and the USA. Cf. Hans Graßl, Ökonomisierung der Bildungsproduktion. Zu einer Theorie des konservativen Bildungsstaats, Baden-Baden 2008. 44 See table on page 184: Christiane Bender, Hans Graßl, Markus Schaal, Der Schweizer Arbeitsmarkt: Sonderfall unter Modernisierungsdruck, in: Thomas S. Eberle, Kurt Imhof (Ed.) Sonderfall Schweiz, Zurich 2007, pp. 172 – 187. 42

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This is, however, what becomes obvious in comparison with the Scandinavian and Anglo-Saxon welfare states: In Sweden, it is primarily the state that has to provide for justice and to actively integrate groups of the population that get into a precarious situation in order to ensure them roughly equal participation opportunities. In the USA, on the other hand, it is mainly the market, especially the barely regulated labour market, that provides central integration results. The considerable social differences are hardly seen as a basic injustice. In Germany, in contrast, the state shares socio-political tasks of integration with corporations, associations, churches and families. In addition, many things (such as social housing (Sozialer Wohnungsbau)) of central importance for life support, that are solely provided by the state in Sweden and solely provided by market economy in the USA, are provided by the market, general economic bodies (Gemeinwirtschaft) and by the local government in Germany. Here, the concept of justice refers to a social order in which the political sector takes intervening actions, the significance of the market for the availability of opportunities plays a major role, but at the same time, alternative family-related and civil society forms of access to welfare are promoted. Thus, different concepts of justice co-exist in Germany, each one of them represented by particular liberal, conservative and social-democratic groups, but also represented by the corresponding regulations of the social state. In other words: Due to simultaneous political control, a great number of options are available so that one can choose between market offers, which the individual has to finance himself, offers that are influenced by religion or ideology but promoted by the state, and offers by the state (at municipality, Länder and federal levels). From the Anglo-Saxon point of view, the continental welfare state has never been described as particularly integrative, but as regimes that act patriarchally and exclusively and serve their bearers such as the civil servants or the organised stakeholders of the associations. The high and increasing unemployment rate is pointed out, as well as the big problems of integrating new social groups that do not have a “lobby” yet into society and economy. From the perspective of the liberal welfare regime, the idea of social justice based on a governmental institutional order is alien to the system and not desirable but obstructive to the optimisation of individual opportunities that can be primarily provided by the market. The differences in inequality and prosperity do not pose any fundamental justice-related problems, but provide an incentive for the individuals to increase their efforts. Instead, it is called for as much market power as possible, the interventions by state and politics are not believed to be very successful anyway. This form of justice is frequently equated with justice based on performance and achievement. However, it has to be taken into account that the accumulation of economic capital by market participants is accompanied by the enhancement of their social and cultural opportunities of participation, i.e. with normatively presenting their contributions as higher-level achievements. In view of the “achievement” of the elites of the financial market in the USA, where by they have ruined the private old-age provisions of hundreds of thousands of Americans,

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the formula of justice applied in the liberal model, justice is what market participants define as just, becomes doubtful.

5

Gaps of Justice within the Conservative Corporate Welfare State in Germany

The paths and courses set featured by the three models of welfare state regimes are, as already has become obvious, linked with traditions of different expectations regarding justice. Essentially, the question is to which extent social politics has to intervene in order to establish a just order. Naturally, the answers to this questions differ greatly. The perception of social injustice, marginalisation, and exclusions as justice-related problems is very different in the three welfare systems, as is the inclination of the majority of the population to agree on solutions. Finally, we are now addressing the gaps of justice that have influenced the form of continental capitalism (Rheinischer Kapitalismus) or the conservative corporate variant of the social state in Germany as part of the concepts of order. In particular, we ask for the specific consequences of inclusion and exclusion and the social change which is achieved by the shift of these order patterns under the influence of neo-liberal ideas. Werner Abelshauser recently elaborated the idea of social justice in the sense of “welfare for all” that is currently demanded by some political parties for election campaign purposes of have never been the subject of the order-related policy which forms the structural basis throughout five systems (German Empire, Weimar Republic, National Socialist era, Western Germany and reunited Germany). Abelshauser emphasizes that the concept of the social market economy was often misunderstood. It mainly referred to “a close symbiosis of economy and society fulfilling joint tasks in changing constellations” consisting of liberal interventionism, productive order-related policy, and of a social system of production that is well coordinated with the markets.45 After the Second World War, this includes the reform of the old-age insurance which successfully prevented old people from sliding into poverty for a long time, the support of the consumer goods industry to supply families with household goods, the capability of absorption of the labour market at that time, and last but not least the availability of affordable housing (social housing) in order to take care of the displaced people and returnees coming to Germany. The consequence of this was an enormous socio-economic inclusion. Since the 1980s, however, it has become apparent that part of the population has slid into precarious living situations linked with long-term risks of exclusion for many of them. This observation provides the background for determining the 45

Werner Abelshauser, Der »Rheinische Kapitalismus« im Kampf der Wirtschaftskulturen, in: Volker R. Berghahn, Sigurt Vitals (Ed.), Gibt es einen deutschen Kapitalismus? Tradition und Perspektiven der sozialen Marktwirtschaft, Frankfurt/Main 2006, pp. 186 – 199.

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existence of a gap of justice in Germany. In conclusion, we would like to point out the following problems: Social insurance is designed to reward continuous full-time employment, but the corporately dominated labour market does not provide enough opportunities for the population capable of gainful employment. In the industrial sector, the permanent staff tends to decrease in numbers and to consist only of well-qualified employees in order to increase production for international competition. Temporary or permanent unemployment mainly affects school-leavers without a degree, the longterm unemployed, older employees with no advanced vocational training, and women with a discontinuous employment biography. Compared with the AngloSaxon and Scandinavian countries, Germany does not succeed in expanding the necessary consumer-oriented services that would compensate for the loss of jobs in the industrial sector and enable women to find employment by offering householdrelated services, neither through market economy nor by expanding employment in the public service. What is biographically dramatic is that women see themselves forced to choose between employment and career or children. Female single parents, most of which find themselves in socio-economically difficult living situations, often fail in getting a satisfying job and in putting their children in professional all-day schools offering qualified support programmes. In Germany, the gradual integration of women into the labour market is not accompanied by an increasing labour volume and therefore, unlike in other countries, does not lead to an expansion of gainful employment in general and thus not to the stabilisation of life-long careers of employment. For major parts of the population, a successful long-term integration into the labour market, which is the key condition for leading a possibly independent life without patronage, i.e. doing one’s own task as Plato describes it, and ensuring their own social security represents an obstacle they cannot overcome. Furthermore, the privatisation of public goods such as municipal housing contributes to the fact that the lower classes have to spend their low economic capital on their costs of living, while the upper classes increasingly use their economic capital to afford cultural goods and thus enhance their status and social participation and symbolically stabilise it. With its “mixed economy”, focus on families and integration of associations and civil organisations, the German variant of capitalism (Rheinischer Kapitalismus) provides starting points for the establishment of many different ways of living that citizens consider to be just. There are numerous liberties, i.e. alternatives for access to social participations. However, as a consequence of the state’s tendency to withdraw from “services of general interest” (Daseinsvorsorge) in the past decade, parts of the population are exposed to considerable risks they cannot cope with. Denying them the chance to do their own task, for example, getting influence in the big mainstream parties that carry the social state since the representative positions are already taken by middle and upper class careerists, poses a threat to the justice within the social order as well as peace and cohesion among people.

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Literature Abelshauser, Werner: Der „Rheinische Kapitalismus“ im Kampf der Wirtschaftskulturen, in: Volker R. Berghahn, Sigurt Vitals (Ed.), Gibt es einen deutschen Kapitalismus? Tradition und Perspektiven der sozialen Marktwirtschaft, Frankfurt/Main: Campus 2006, pp. 186 – 199. Abelshauser, Werner: Des Kaisers Neue Kleider? Wandlungen der Sozialen Marktwirtschaft, Broschüre des Roman Herzog Instituts 2009, München: Roman-Herzog-Inst. 2009, pp. 15 et seq. Albert, Michel: Kapitalismus contra Kapitalismus, Frankfurt/Main: Campus 1992. Albert, Michel “Die Zukunft der Sozialmodelle des europäischen Kontinents”, in: Wolfgang Streeck (Ed.): Internationale Wirtschaft, nationale Demokratie, Frankfurt/M.: Campus 1998, pp. 195 – 209. (Schriften des Max-Planck-Instituts für Gesellschaftsforschung Köln, Sonderband) Aristotle, Politics: Translated and published by Olaf Gigon, Munich 1978. Bender, Christiane; Graßl, Hans: Arbeiten und Leben in der Dienstleistungsgesellschaft, Konstanz: UVK 2004. Bender, Christiane; Graßl, Hans; Schaal, Markus: Der Schweizer Arbeitsmarkt: Sonderfall unter Modernisierungsdruck, in: Thomas S. Eberle, Kurt Imhof (Ed.) Sonderfall Schweiz, Zurich: Seismo Verlag 2007, pp. 172 – 187. Blair, Tony; Schröder, Gerhard: Der Weg nach vorne für Europa, no indication of place of publication, 1999. Borchorst, Annette: Welfare State Regimes, Women´s Interests and the EC, in Diane Sainsbury (ed.), Gendering Welfare States, London: Sage Publications 1994, pp. 26 – 44. Bubner, Rüdiger: “Gerechtigkeit herrscht, wo jeder das Seinige tut“, in: Freiheit oder Gerechtigkeit. Perspektiven Politischer Philosophie, Leipzig: Reclam Verlag 1995, pp. 176 – 193. Bubner, Rüdiger: „Wo jeder das Seinige tut, muß der Philosophenkönig engagiert werden“, in: Polis und Staat. Grundlinien der Politischen Philosophie, Frankfurt am Main: Suhrkamp Verlag 2002, pp. 51 – 70. Bubner, Rüdiger: Hegels Staatsbegriff, in: ders., Polis und Staat. Grundlinien der Politischen Philosophie, Frankfurt am Main 2007, pp. 153 – 173. Durkheim, Emile: The Anomic Division of Labour, in: The Division of Labour in Society, New York: Free Press, 1997 [1893], pp. 421 – 442. Esping Andersen, Gøsta: Politics against Markets, The Social Democratic Road to Power, Princeton: Princeton Univ Press, 1985. Esping-Andersen, Gøsta: Post-Industrial Structures: An Analytical Framework, in: Gøsta Esping-Andersen (Ed.), Chancing Classes. Stratification and Mobility in Post-Industrial Societies, London, Newbury Park, New Delhi: Sage Publications Ltd 1993, pp. 7 – 31. Esping-Andersen, Gøsta responded to this criticism in: Comparative Welfare Regimes Re-examined, in: Social Foundations of Postindustrial Economies, Oxford: Oxford University Press 2000, pp. 73 – 98.

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Esping-Andersen, Gøsta: The Three Political Economies of the Welfare State, in: The Three Worlds of Welfare Capitalism, Cambridge: Princeton University Press 2003, pp. 9 – 78. Esping-Andersen, Gøsta: A New Gender Contract, in, Gøsta Esping-Andersen, Why We Need a New Welfare State, Oxford, New York: Oxford University Press 2003, pp. 68 – 95. Funke, Peter: Athen in Klassischer Zeit, Munich: C.H.Beck 1999. Hans Graßl, Ökonomisierung der Bildungsproduktion. Zu einer Theorie des konservativen Bildungsstaats, Baden-Baden: Nomos Verlagsgesellschaft 2008. Grimm, Dieter: Recht und Staat der bürgerlichen Gesellschaft, Frankfurt am Main: Suhrkamp Verlag 1987, p. 61. Haag, Karl Heinz: Das Unwiederholbare, in: Philosophischer Idealismus, Frankfurt am Main: Europäische Verlagsanstalt 1967, pp. 5 – 17. Häußermann, Hartmut; Siebel, Walter: Dienstleistungsgesellschaften, Frankfurt/Main: Suhrkamp 1995 Hall, Peter A.; Soskice, David: An Introduction to Varieties of Capitalism, in: Peter A. Hall, David Soskice (Ed.), Varieties of Capitalism. The Institutional Foundations of Comparative Advantage, Oxford: Oxford University Press, 2001, pp. 1 – 68. Hegel, G. W. F.: Grundlinien der Philosophie des Rechts, Theorie Werkausgabe Band 7, Frankfurt am Main: Suhrkamp Verlag 1970. Hobbes, Thomas: Leviathan, Stuttgart: Reclam Verlag, 1974. Kann, Christoph: Fußnoten zu Platon. Philosophiegeschichte bei A.N. Whitehead, Hamburg: Felix Meiner Verlag 2001. Kaufmann, Franz-Xaver: Herausforderungen des Sozialstaates, Frankfurt am Main: Suhrkamp Verlag 1997. Kaufmann, Franz-Xaver: Varianten des Wohlfahrtsstaats, Frankfurt am Main: Suhrkamp verlag 2003, pp. 161 – 204. Kaufmann, Franz-Xaver: Sozialpolitisches Denken, Frankfurt am Main: Suhrkamp Verlag 2003a Leisering, Lutz: Gerechtigkeitsdiskurse im Umbau des deutschen Sozialstaats, in: Stefan Empter, Robert B. Vehrkamp (Editors), Soziale Gerechtigkeit – Bestandsaufnahme, Gütersloh: Bertelsmann Stiftung 2007, pp.77 – 108 Locke, John: Über die Regierung (The Second Treatise of Government). In der Übersetzung von Dorothee Tidow, Reinbek bei Hamburg: Rowohlt Taschenbuch Verlag 1966; cf. John Rawls, A Theory of Justice, Cambridge, Massachusetts 1971. Marshall, T. H.: Staatsbürgerrechte und soziale Klassen, in: Bürgerrechte und soziale Klassen. Zur Soziologie des Wohlfahrtsstaates, Frankfurt am Main: Campus 1992, pp. 33 – 94. Meier, Christian: Die Entstehung des Politischen bei den Griechen, Frankfurt: Suhrkamp Verlag 1980. North, Alfred: Whitehead, Process and Reality. An Essay in Cosmology, New York, London: Free Press, 1979, p. 39.

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O’Connor, Julia S.: From Women in the Welfare State to Gendering Welfare State Regimes, in: Current Sociology, Journal of the International Sociological Association, Volume 44, Number 2, Summer 1996, London, p. 61 et seq. Orloff, Ann: Gender and the Social Rights of Citizenship: State Policies and Gender Relations in Comparative Research, in: American Sociological Review, 58, 3/1993, pp. 303 – 328. Plato: Complete works. Translation into German by Friedrich Schleiermacher, Hamburg: Rowohlt 1958. Popper, Karl: The Open Society and Its Enemies, London: Routledge 1945. Prekariat-Studie; Fatale Furcht ergreift die ewigen Verlierer, SPIEGEL ONLINE, 2 April 2009 ” http://www.spiegel.de/politik/deutschland/O, 1546, druck616392, 00html. Sachße, Christoph: Subsidarität: Leitmaxime deutscher Wohlfahrtsstaatlichkeit, in: Stefan Lessenich (Ed.), Wohlfahrtsstaatliche Grundbegriffe. Historische und aktuelle Diskurse, Frankfurt/New York: Campus Verlag 2003, pp. 191 – 212. Scharpf, Fritz: Sozialstaaten in der Globalisierungsfalle? Lehren aus dem internationalen Vergleich; in: Max-Planck-Gesellschaft, Jahrbuch 2000, Munich, Göttingen: Verlag Vandenhoeck & Ruprecht, pp. 59 – 73. Waldmann, Peter: Einleitung: Zum Konzept des anomischen Staates, in: Der anomische Staat. Über Recht, öffentliche Sicherheit und Alltag in Lateinamerika, Opladen: Leske + Budrich 2002, pp.7 – 20. Walter, Franz: Baustelle Deutschland, Frankfurt am Main 2008; Im Herbst der Volksparteien. Eine kleine Geschichte von Aufstieg und Rückgang politischer Massenintegration, Bielefeld: Transcript - Verlag für Kommunikation, Kultur und soziale Praxis 2009 Zacher, Hans F.: Der deutsche Sozialstaat am Ende des Jahrhunderts, in: Stephan Leibfried, Uwe Wagschal (Editors), Der deutsche Sozialstaat, Bilanzen – Reformen – Perspektiven, Frankfurt/Main: Campus Verlag, 2000, pp. 53-90, here pp. 56 et seq. Zehnpfennig, Barbara: Platon, (Politeia (385 BC) in: Geschichte des politischen Denkens. Ein Handbuch, published by Manfred Brocker, Frankfurt am Main: Suhrkamp Verlag 2007, pp. 14 – 30.

Economic Mechanisms of Inclusion and Exclusion in Latin America Barbara Fritz

1

Introduction: Economic Policy as a Dilemma between the Economic and the Political Sovereign

From a Keynesian point of view, well-functioning markets cannot be assumed to be institutions that automatically lead to a harmonisation of the interests of market participants. In line with this view, I argue that market transactions need to be understood as economic decisions made in order to deal with economic scarcity and hierarchies in a situation of uncertainty and incomplete foresight. According to this perspective, I show that debtor-creditor relations are the underlying driving force of markets. Therefore, I argue that it is the monetary sphere that dominates the real economy rather than the other way around. In contrast, neoclassical models assume a given resource endowment on the part of market participants that is driven by their individual profit maximisation calculus in their respective economic transactions.1 If a well-functioning economy is affected neither by war nor by an extraordinary scarcity of any other good, such as energy, I argue, money is the scarcest good. As full employment would disturb this hierarchy of scarcity, I argue that a situation of underemployment generally characterises well-functioning market economies, rather than a market equilibrium with full employment. Of course, the extent of underemployment may vary considerably. In the following, I use the terms ‘inclusion’ and ‘exclusion’ in relation to access to employment. In addition, I analyse inclusion and exclusion in terms of the benefits of social security systems that are in the majority of cases – albeit not entirely – linked to formal labour contracts. In a well-functioning economy that is dominated by the monetary sphere as outlined above, wealth owners, such as commercial banks, becomes the economic sovereign as his portfolio decisions determine economic development. The composition of the latter is determined by the liquidity preference and degree of risk aversion of the wealth owner. He himself decides whether he prefers to hold his assets in the form of liquid money or real estate, whether he prefers to hold liquid money as demand deposits or even in cash, and whether he invests his assets in long-term income-generating investments. In other words, he becomes the economic sovereign of the economy. Thus, his decisions are determined by his underlying eco1

For a more detailed discussion see Riese (2004); Schelkle (1992); Lüken gen. Klaßen (1993); Herr/Priewe (2005).

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nomic calculus. The latter will decide on the provision of a loan for the profit-generating investment project of a capital-scarce entrepreneur depending on its assessment of the trustworthiness of the respective firm, and depending on its confidence in the situation in the economy. In this context, the central bank is equipped with asymmetric power as it may limit the formation of credits by raising the basic interest rate. However, the central bank may not be able to force the wealth owner into long-term investment financing through the reduction of the interest rate level. In a world with more than one currency, the wealth owner decides not only between monetary and real estate asset holdings but also between generating income in domestic or foreign currency. The weaker the domestic currency appears to be in the eyes of the wealth owner, in other words, the higher the probability of wealth losses – either internally through inflation or externally through nominal exchange rate devaluation – and the lower his willingness to hold his assets in domestic currency. Therefore, wealth owners possess a crucial decisive power over the extent of investment and employment within the domestic economy. By threatening a change into another currency, wealth owners have considerable veto power in an economy, at least as long as the international economic system allows capital to move freely. As a consequence, economic policy makers are obliged to meet the requests of wealth owners, particularly in relation to the stability of the domestic currency. In the case of weak currencies, this implies that domestic production is being strangled by high capital outflow as the economic sovereign – the wealth owner – does not have any incentive to hold his assets in a relatively weak currency that is characterised by inflation and devaluation. Alternatively, the government may try to serve the interests of the economic sovereign and establish a high real interestrate level in order to compensate for the relatively weak currency and potential future losses through higher interest rate earnings at present. Production and employment in the economy are limited to low levels in this way, too, as few investments bear a profit margin that can compete with a high real interest-rate level. On the other hand, economic policy makers are faced with the legitimising pressure of the voting population – at least as long as the political will of the majority is not repressed. The political sovereign – the majority population – demands an economic policy that ensures a maximum of economic and social inclusion. In addition, this claim may be associated with the demand for the progressive redistribution of wealth. The power of the political sovereign in a democracy is defined by equal voting rights for each and every citizen who is allowed to vote. Yet, even authoritarian regimes require a certain degree of at least economic legitimacy (in terms of growth and employment) in order to avoid forced regime change. I thus argue that modern societies are generally characterised by this fundamental dilemma between the economic and the political sovereign. However, the mediation of the conflict between these diverging interests takes a variety of forms in different countries over time. In a region such as Latin America, which is characterised by a relatively low level of economic development in comparison to industrialised countries in terms

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of per capita income, the dilemma can be observed in the form of a very high degree of economic exclusion. Given prevailing intra-regional differences, economic exclusion in Latin America materialises as an exceptionally unequal income distribution that cannot be compared to any other region in the world, as shown in the following charts.2 Figure 1: Income Distribution in Latin America and Other Regions of the World (measured according to Gini coefficient, 1960s–1990s)

55 50 45 40 35 30 25 20 Latin America and the Caribbean

SubSaharan Africa

Middle East and North Africa

1960s

East Asia and the Pacific

1970s

South Asia

1980s

Industrial countries and highincome countries

Eastern Europe

1990s

Source: Deininger and Squire 1996. In Figure 1 we see that the Gini coefficient3 – for which reliable international measures are only available from the 1960s on – is considerably higher for Latin America than for any other region in the world. Yet, it is noticeable that this difference decreased in the 1970s, before rising again in the 1980s. We will come back to these changes in the following discussion. 2

3

CEPAL (2004) provides an overview of the present income distribution in Latin America; a good deal of data and analysis on general and specific aspects of Latin American income distribution can be found in the 2003 World Bank study, which additionally provides a historical perspective on the phenomenon. The Gini coefficient takes on values between zero and one in order to measure the degree of inequality of the income distribution in a country. Its value rises with rising income inequality.

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Figure 2: Income Distribution in Latin America (measured according to Gini coefficient, end of 1990s/early 2000)

60 55 50

Brazil

Guatemal

Bolivia

Columbi

Chile

Paragua

Panam

Ecuador

Hondura Nicaragu

Mexic El

Argentinia

Peru Dominican Republic

Costa

Urugua

40

Venezuel

45

Source: World Bank 2003, Figure A.3. In addition, these figures show that the picture of income distribution in Latin America is by no means homogeneous. For example, the level of income inequality in Uruguay is significantly lower than in Brazil – the country with the most unequal income distribution in the region, which I will therefore particularly focus on. In the following sections, I discuss the economic mechanisms of inclusion and exclusion in Latin America. In section 2, I provide an overview of the structuring characteristics of inequality. In sections 3 and 4, I analyse the most important phases of the various economic policy focuses that led to differing mechanisms of inclusion and exclusion. I define the major structuring characteristic as forced indebtedness in foreign currencies, which has a destabilising influence on domestic markets and hinders long-term economic development. Further to this, I consider structural heterogeneity as a consequence of missing domestic market development, which leads to a limitation of employment opportunities. Finally, I define the overarching economic policy phases as (1) the period of import-substitution policies between 1930 and 1980 and (2) the second phase of economic liberalism in Latin America, underway since the 1980s.

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Structures and Regimes of Inclusion and Exclusion in Latin America: Indebtedness in Foreign Currency and Structural Heterogeneity

The widely recognised concept of original sin by Eichengreen et al.4 points to the fact that countries which have received loans exclusively in ‘strong’ foreign currencies from international capital markets ever since their nation-building process began remain unable to indebt themselves in their own currency today. Thus, they are tainted by a high level of foreign currency-denominated debt and, therefore, by a high degree of what the authors call ‘original sin’. International financial market claims concentrate on a few currencies of the major industrial countries and international financial centres. Eichengreen et al. (2005) show that the majority of currencies – in other words, those of developing countries and emerging markets – have been rejected by international financial markets in an astonishingly consistent manner over the last two centuries. The authors show in several empirical panel studies that the extent of original sin depends neither on institutional strength nor on the credibility of monetary policy or the strength of taxation policy. It is important to note that the only empirically robust indicator the authors find for the ability of a country to indebt itself in its own currency in international financial markets is the economic size of a country. Hence, it is the portfolio diversification strategies of international investors with a preference for the five major currencies, and not the economic policy orientation of the respective country that determines the financing options of countries that seek loans in international markets. This surprising conclusion by Eichengreen et al. (2005) has called a considerable portion of economic research on developing countries into question as the majority of studies had so far considered limited economic growth to be a consequence of domestic policy failures. Further to the above finding, Eichengreen et al. (2005) also conclude that a high degree of original sin – in other words, the tendency to have a high share of foreign currency-denominated debt – leads to a significant increase in the instability of growth and in the volatility of international capital flows to such a country. They note three major underlying causes that had already been highlighted in the research on currency crises in emerging markets during recent decades: “First (…) original sin limits a country’s ability of conducting a countercyclical monetary policy. Second, dollar liabilities limit the ability of central banks to perform their role of lenders of last resort. Third, the interaction between original sin and real exchange rate volatility increases the uncertainty over the cost of foreign debt service and leads to excessive volatility of domestic interest rates which also increase the uncertainty associated with the cost of domestic currency debt service. This increase in uncertainty leads to an increase of growth and capital flow volatility.” (Panizza 2004, p. 5) 4

Eichengreen/Hausmann (2005) provide an overview of the discussion on original sin; a shorter review can be found in Panizza (2004).

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Indeed, the volatility of economic growth in Latin America is significantly higher than in the rest of the world (Hausmann/Gavin 1996, see also Rodrik 2001). According to the study of Ferranti et al. (2000), the fluctuation of Latin American GDP is twice as high as in industrialised countries. The highly fluctuating growth rates lead to a high volatility of labour supply and the wage level (Cortázar 1996: 215 pp.). The poor segments of the population are generally disproportionally affected by the consequences of high economic volatility since they cannot rely, except possibly to a very limited extent, on (monetary and non-monetary) savings in order to compensate for temporary income losses or reductions. At the same time, the social security system in Latin American countries is typically very fragmentary. Due to its underdeveloped state, it mostly does not serve any insurance function. Hence, strong losses in times of crises easily disrupt the revenues that are made in economic boom phases. Thus, the higher vulnerability of low-income groups to economic volatility causes the polarised income distribution to become a permanent phenomenon, or even aggravates it. Among others, this is one explanation for the astonishing persistence of unequal income distribution in Latin America (World Bank 2003). As a result of limited market dynamics and the interrelated exclusion of a wide range of people from the monetary economy, the coexistence of monetary, stateled, and family economies prevails in most Latin American countries. This situation is best described by the term ‘structural heterogeneity’, coined by Latin American social scientists in the context of the dependencia debate. By relying on this term, I underline its importance in understanding how institutional structures, political processes, and the mechanisms of economic inclusion and exclusion function.5 In particular, the family economy may appear in various facets of the subsistence economy or the informal sector, respectively, whereby the boundaries to the monetary and state economies typically overlap. In Latin America, economic heterogeneity historically goes hand in hand with an incomplete social modernisation process in which modern monetary economy structures were only partially established and were combined with persisting traditional forms of representation and clientelism. Without any doubt, there is no simple causal logic between an incomplete economic and an incomplete social modernisation. However, this holds true in the opposite direction too. In other words, economic underdevelopment cannot be explained by a state of ‘social underdevelopment’, although this is frequently proposed in development theory. Ultimately, economic development is a complex process of interdependencies, the understanding of which requires an intensive examination of specific historical processes. 5

The most widely known contributions to the debate were made by Cardoso/Faletto (1969). The discussion on internationally induced dependency structures for so-called peripheral countries lasted over more than two decades. Within this debate, ‘structural heterogeneity’ was – among other things – discussed by Córdova (1973), and Oliveira (1972). For the linkage to Keynesian monetary theory see also Nitsch (1993) and Lüken gen. Klaßen (1993).

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On the one hand, structural heterogeneity can be understood as a buffer that compensates for insufficient integration into the monetary economy. On the other hand, the political inclusion of the whole population may provoke a publicly expected promise of economic inclusion too. Economic policy is judged against this expectation – a promise it is usually unable to fulfil. Apart from these structuring characteristics, two phases of economic policy have significantly shaped the forms of inclusion and exclusion since the twentieth century in Latin America: the policy of import substitution (from 1930 to 1980) and the policy of economic liberalisation (since the 1980s). I analyse both phases separately in the following sections. 2.1

Import-substituting industrialisation (ISI), 1930–1980

a) International context, economic policy arsenal, social project The era of import-substituting industrialisation (ISI) was a long and by no means homogeneous period of time. It was, however, characterised by the relative rejection of world markets and the focus on the development of domestic markets in Latin American countries. While this domestic market orientation was set off by the Great Depression and reinforced by the Second World War, the collapse of the world economy following World War II provided the general conditions for its continuation for another two decades. Domestic market development combined with protectionism, fixed exchange rates, and rigid international capital controls characterised economic policy making in the ISI era. Even beyond Latin America, this period was marked by expanded policy leeway for the political sovereign as the broad restriction of private international capital flows meant curbs on the implementing power of the economic sovereign. Although international capital controls did not completely eliminate the worldwide exchange between different currencies, they made international currency exchange extremely difficult.6 At the beginning of this period, in the aftermath of the Second World War, economic conditions had never been better before for most Latin American countries. The majority of them had been forced into foreign currency debt since obtaining political independence at the beginning of the nineteenth century and had thus suffered a series of currency and balance-of-payment crises. However, at the end of World War II, these countries were freed from foreign currency-denominated debt since the beginning of the ISI era coincided with the change from one key international currency, the British pound sterling, to another, namely, the US dollar. In fact, a few Latin American countries suffered economic losses due to this change: Argentina, for example, had become a creditor economy for England due to its rapid wealth accumulation in the nineteenth and early twentieth centuries. During the Great Depression, it then had to deal with a devaluation of its claims 6

See Bord/Eichengreen (2003) on the international financial order.

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against the former key-currency economy. Nevertheless, the majority of the debtor economies, for example, Brazil, experienced a devaluation of their liabilities against England while at the same time being able to accumulate foreign exchange reserves through earnings from exports to the USA. Brazil was, among other countries of the region, an important resource provider for the Allies, particularly the USA. At the end of World War II it had thus not only written off its economic debt but had also accumulated excess foreign exchange reserves. The initial substitution of imports with domestic products during World War II and the Great Depression was primarily a market reaction to destroyed international market structures. Only after the Second World War was import substitution formulated as an intentional economic policy strategy in the context of the triumphant success of Keynesianism at that time. Under the direction of its Argentinian lead economist, Raúl Prebisch, it was first and foremost the UN Economic Commission for Latin America and the Caribbean (ECLAC/Comisión Económica para America Latina y el Caribe, CEPAL) which developed the theoretical framework as well as the economic policy instruments for a so-called catch-up development. At that time, the ISI strategy was also implemented by a large number of developing countries outside Latin America.7 The cepalismo assigned a fundamental role to the state in the implementation of the ISI strategy. The national industrialisation project should ideally involve all stakeholders in the country. In order to reach that goal, the ‘developmental state’8 employed a whole arsenal of economic policy instruments:

7

8

−

High import tariffs and import prohibitions, or import quotas, respectively

−

Capital controls and a system of multiple exchange rates that ‘taxed’ traditional commodity exports through an overvalued exchange rate (this holds true primarily for the 1950s, which were characterised by high international demand) and favoured capital goods and commodities over consumables

−

Subsidies for exports (in some countries mainly practised during the rise of the export-oriented development strategy in the 1970s)

−

The formulation of national and sectoral development plans

−

The controlled permission of international foreign direct investment

−

The creation of huge state-owned enterprises in central areas of the economy, combined with the provision of inputs for the national industry

Cf. Prebisch (1949). A comprehensive explanation of the theoretical concept can be found in CEPAL (1969); an overview on the economic policy concepts of CEPAL during recent decades is provided by Bielschowsky (1998). ’Estado desarrollista’ (Cardoso/Faletto 1969: 123 pp.); the term desarrollista state became established in the diverse use of languages in the international academic literature (see for example Schneider 1991: 218 pp.).

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−

The creation of public banks which provided state-owned and private enterprises with soft loans in domestic currency

−

The acceptance of guarantees for foreign-exchange transactions and the assurance of market reserves for direct investments

The ISI policy in Latin America cannot be explained only by world market necessities. Rather, it took on a central, inward-oriented legitimating function and thus became a ‘national project’.9 The economic policy of ISI was directed at neutralising social tensions and conflicting interests between the different economic and social stakeholders in the developing society. It aimed to overcome the development blockade and solve the dilemma of the diverging claims of the political and the economic sovereign by accelerating economic growth that was focused on the domestic market. This intention explicitly characterised the populist regimes of Latin America that emerged in the context of social changes in the 1920s. This era was marked by populist politicians such as Perón (Argentina) and Vargas (Brazil) who typically not only formed alliances with the domestic industrial elites but also created statecontrolled trade unions. The ISI policy – which was mostly, albeit not always, motivated by populism – can also be understood as a ‘redistributive regime’10 that aimed to soften public budget constraints. The latter most often led to price inflation in the domestic currency. As a consequence, the domestic currency was under constant threat of capital flight by private wealth owners. The redistributive element of populism was not necessarily directed at a progressive redistribution of the national income or the implementation of an ubiquitous social welfare state.11 Rather, we need to understand the expansion of domestic production (and thus of income and employment) in these weak-currency economies as the attempt to dispossess the private wealth owner of his restrictive sanctioning power and, at the same time, to enhance the entrepreneurial logic of the economy. Thus, the overall objective of the various market interventions was the support of market-made profits via direct and indirect subsidies – as domestic investment activities were at 9

In Africa and Asia, where the decolonialisation process began only after the Second World War, the ISI period coincided with the process of ‘nation building’. However, in Latin America, where political independence had already been achieved during the first half of the nineteenth century, the ISI economic strategy was accompanied by an emphatic debate about the redefinition of the nation, which needed new substance due to economic and social emancipation. 10 Schelkle (1992: 64 pp.) outlines the redistributive as the alternative concept to the commercial regime. While in the redistributive regime, legitimation vis-à-vis the political sovereign is of vital importance for the definition of economic objectives, the commercial regime centres on the private wealth owner's economic calculus as the economic sovereign. 11 On the exclusive character of the social welfare state in the Latin American tradition see Mesa-Lago (1978); on the concept of the ‘populist redistributing state’ see also Portantiero (1989: 89).

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risk of strangulation due to high interest rates in the weak-currency economy (see Nitsch 1999: 197) – and the expansion of external budget constraints. The latter aim was supposed to be reached via import subsidies in the long term as well as via foreign-exchange liabilities in the short term. Depending on the country and the respective era, this redistributive regime could show more or fewer participatory or authoritarian traits and could result in the end in either progressive or regressive income distribution. The case of Brazil in the 1960s and 1970s may be taken as emblematic here: The redistributive regime was an authoritarian regime that explicitly – and in the beginning with a considerable degree of state terror, for example, against trade unions – intended to implement redistribution on behalf of the domestic entrepreneurial elite. For a certain period of time, this caused very high economic growth rates combined with considerably increasing employment and thus increasing inclusion. b) Brazil 1964–80: Inclusion via the labour market due to low-level employment through authoritarian redistribution on the part of the developmental state In 1964, a military coup in Brazil initiated a long phase of authoritarianism. From an economic point of view, the authoritarian phase can be explained by Vargas’s and subsequent presidents’ attempts to compensate for declining growth at the end of the 1950s by increasing nominal wages (by bringing trade unions into action against the traditional commodity exporters). Among other things, the result was an inflationary push as well as a considerable demonetisation process at the beginning of the 1960s. The military stabilisation programme, PAEG (Programa de Ação Econômica do Govêrno Castelo Branco/Economic Programme of the Government of Castelo Branco, launched immediately after the military came into power), is known as an important step in the so-called ‘Brazilian economic miracle’, that is, the explicit economic boom from 1967 to 1973. The latter brought about average growth rates of more than 10 per cent; even afterwards, between 1974 and 1980, the average annual growth rate was still at 7.1 per cent (IBGE, Instituto Brasileiro de Geografia e Estatística, National Statistical Institute Brazil). With the military’s seizure of power, the social pact changed from the import substitution phase of ‘economic nationalism’ to the ‘authoritarian-modernising’ developmental state, which primarily meant the repression of trade unions, including their wage claims (cf. Bresser Pereira 1996:37). The arbitrary indexation of nominal wages, often below the effective consumer prices index, became the decisive instrument in the repression of wages. It allowed the authoritarian state to develop broad discretionary leeway to employ income policy for economic stabilisation purposes, and to define – and repeatedly manipulate – specific inflation indices. As a consequence, the Gini coefficient rose from 0.49 to 0.56 between 1960 and 1970 (cf. Fishlow 1973:94).

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In the 1970s, this policy led to extensive debate about the ISI strategy's impact on income distribution in the country.12 On the one hand, mainstream authors ascribed the increasing concentration of income to the market-distorting policies of import substitution. Due to the resulting overvalued currency and cheaper imported capital goods, protectionist policies indeed led to the use of capital-intensive rather than labour-intensive technologies and, as a result, insufficient employment opportunities. The mainstream school of thought highlighted the connection between the concentration of income and the decade-long inflation that had led to losses in the purchasing power of mainly the lower-income groups (cf. for example Franco 1998: 61). On the other hand, proponents of the dependencia school explained the anti-egalitarian bias of ISI as being due to the incomplete social modernisation process, which reinforced the rural exodus and thus reduced the urban wage level. The programme of this camp was to identify the specific character of the Latin American industrialisation process. In addition, some, such as Baltar et al. (1986: 88p.), argued that the selective nature of employment-related social welfare provoked a reproduction of structural heterogeneity, even within the modern sector of the monetised economy. Thereby, the informal sector would take on compensatory functions due to its multifaceted peculiarities (the dependencia school argued against the dualist model, which divided the economy into a traditional subsistence sector on the one side and a modern monetised sector on the other side). In addition to innumerable institutional changes over time, the authoritarian ISI period primarily caused an income policy where wage increases tended to remain below the productivity increases of the industrial sector (cf. Lara Resende 1990: 216p.). The resulting increase in profits became the most important self-financing source for investments. In addition, the PAEG policy played a central role in aggravating unequal income distribution, not only between wages and profits but also among wage earners. Followers of the dependencia approach argued that the Brazilian accumulation regime was responsible for the increasing concentration of income (cf. Tavares/Serra 1972: 157pp.). This complies with my point of view insofar as I argue that the recovery of relative monetary stability at that time was not built on growth-impeding monetary policy activation but rather on the repression of the wage level, which ensured entrepreneurial revenues within the weakcurrency economy. The maintenance of high growth rates throughout the post-war period resulted in a relatively high average income and a comparably high employment level, particularly in urban economic growth centres at the end of the 1970s.13 From a heterodox point of view, Brazil was a case of ‘peripheral fordism’ (Hurtienne 12 13

Bacha/Taylor (1980) provide an overview of the discussion. In 1978, per capita income in Brazil was approximately US$1,786, which placed Brazil close to the ‘upper-income category’ of the middle-income countries following the classifications of the World Bank. The number of wage-related employed people rose in the 1970s from 16 to 18.7 million. At the end of this phase, approximately 60 per cent of urban households were at least partially integrated into the markets for long-term consumables (cf. Hurtienne 1985: 55p.).

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1986: 98pp.) whose central development problem was the inequality between the rapid industrial modernisation process on the one hand and the lagging socio-economic structural change caused by the lack of welfare-state regulation by the state on the other hand. At the end of the 1970s, such a perspective suggested that a political democratisation process should induce a generalisation of the welfare state and thus an increase in wage rates and a continuous levelling of the structural heterogeneity in employment structures. This aspiration lost ground with the outbreak of the debt crisis. In retrospect, we see that the reduction of structural heterogeneity in Brazilian society, in the sense of the inclusion of the largest possible part of the society into the modern state-regulated area of the domestic economy, reached its peak at the end of the ISI period (see also Pochmann 2000: 17). As a consequence, the long-lasting crisis of the 1980s resulted in a cutback that continued in the 1990s, albeit for other reasons. The unequal income distribution was aggravated during the debt crisis and became the central political topic in the context of re-democratisation. Economic concepts were evaluated by their efforts for the reduction of inequality. Thus, when Brazil experienced a step-by-step rebuilding of democracy the 1980s, the period was characterised not only by the cut-off from international capital markets and the need to end the cumulative inflationary process, but also by the vehement claims of the political sovereign regarding the need to balance the ‘social debt’ of ISI policy (particularly that accumulated during the military dictatorship). Thus, it seems symptomatic that the well-known sociologist and later president Fernando Henrique Cardoso closed his contribution to the standard book on Latin American democratisation processes by O’Donnell/Schmitter/Whitehead (1986) with the perspective that a political opening of Brazil “leads the country from stable transition to, if not liberal democracy – which is not the case at present – at least to a regime that is more compatible with the pressures of revindicative masses.” (Cardoso 1986: 153)

c) Import substitution and debt crisis: Re-establishment of the (international) economic sovereign and increasing exclusion again The whole ISI period was characterised almost completely by a growth-oriented policy that was accompanied by a softening of the public budget constraints and balance-of-payments restrictions. Thereby, the economic orientation alternated between prioritising the economic inclusion of hitherto excluded parts of the society on the one hand and satisfying the stability interests of the wealth owners on the other hand. In phases of a stronger orientation towards job creation and social welfare mechanisms, budget deficits tended to rise more than in phases when wealth owners’ interests were prioritised. The extent of the softening of balance-ofpayments restrictions, however, was primarily dependent on the respective international constellation. While, in the context of international capital market restrictions, the 1950s and 1960s were dominated by private direct investment and loans by international development banks, from the 1970s onwards the supply of private

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bank credits developed rapidly. The latter emerged in the course of liberalised capital flows in the key-currency economies and the economic crisis in the industrialised countries in the aftermath of the breakdown of the Bretton Woods system and the oil crisis. Latin American countries as well as the majority of developing countries around the world took advantage of the beneficial financing conditions that prevailed during the 1970s. From 1979 on, interest rate increases by the US Federal Reserve Bank led to a reversal of international capital flows, in turn causing deep and persistent debt crises in almost all developing countries, first and foremost in Latin America during the 1980s.14 Latin American economies were forced to subordinate their economic policy to the primacy of balance-of-payments stabilisation. Due to erratically increasing financing costs for the state, this required a considerably contractionary policy and resulted in a dramatically accelerating inflationary process. In the context of the debt crisis, the ISI strategy was no longer sustainable as it resulted in a twofold restriction of investment activities: First, the region was cut off from foreign-exchange loans, which were indispensable for maintaining high investment levels. Second, the debt crisis usually caused a deep fiscal crisis in the developmental state, which affected public and private investment capacities. In the first half of the 1980s, the fiscal crisis in most Latin American countries resulted primarily from the socialisation of private foreign debt that was correlated with an increase in domestic public debt; in other words, private debtors paid back foreign currency debt in domestic currency to the central bank. Within the democratisation process, additional claims were raised to the state from the majority of voters. The state was called to ‘serve the social debt’ – that means, to increase social spending in order to re-reduce economic and social inequality that had been raised under the authoritarian regime. This constellation caused a twofold process of exclusion: on the one hand, the decline in investment and the sharp shrinking of the economy resulted in reduced employment; on the other hand, welfare state expenditures were reduced. Both processes disproportionally affected the poor. I will analyse the period of the 1990s, when these exclusionary processes accelerated, in greater detail in the following section. 2.2

World-market orientation and liberalisation as development strategy: the 1990s until today

a) Combating inflation cum liberalisation: The exchange rate-based stabilisation strategy in the 1990s and its consequences Indeed, the point in time when liberalisation policies started varied among the countries: As an exceptional case in Latin America, Chile had already committed 14

See Sachs (1985) and Schwarzer (2002) for analyses of the consequences of the debt crisis in Latin America.

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itself to economic liberalism in the 1970s. In its beginnings, economic liberalisation was considerably radical in Chile, while Brazil adopted a distinctly liberal, though somehow more moderate direction of market orientation only in the mid 1990s. Often, for example, in the widely cited ‘Washington Consensus’ (Williamson 1990), liberalisation is described as a simple trio of economic policy instruments: liberalisation, deregulation, and privatisation. However, a more detailed look shows that the liberalisation process in Latin America was far more complex with respect to the phenomena of inclusion and exclusion. This was primarily related to the form of monetary stabilisation. In the 1990s, a new type of stabilisation programme developed, which connected anti-inflation programmes with the economic opening up to world markets. These programmes started with spectacular promises. They pledged to ensure monetary stability and growth at the same time, that is, to equally serve the interests of the political and the economic sovereign. In the 1990s, a multitude of Latin American countries opted for a more or less fixed pegging of their exchange rate in relation to the US dollar, the strongest currency of the region.15 The best known case is Argentina, with its radical currency board. From 1991 to 2001, the country’s exchange rate was pegged by law at 1:1 to the US dollar. Further to this, Brazil (with the Plano Real from 1994 to 1998) and Mexico (with the so-called Stabilisation Pact fom 1988 to 1994)16 chose the softer form of a relative exchange rate peg. Also, Ecuador, Paraguay, Uruguay, and Venezuela opted for a form of exchange rate peg, albeit in a more moderate form. Fixing the exchange rate requires a relatively high stock of foreign exchange reserves by the national central bank in order to defend the exchange rate peg. Thus, employing the exchange rate as a nominal anchor – or in other words, the fixing (or quasi-fixing) of the national currency to a strong foreign currency – was actually only feasible at that time since it was only at the beginning of the 1990s that international financial markets began to gradually open up to developing countries and thus provide access to foreign exchange reserves. The decisive advantage of the exchange rate-based stabilisation model was that monetary stability could be imported from abroad rather than being brought in at home with restrictive domestic monetary and fiscal policy. The fixed exchange rate ensured stable prices for imported goods from world markets. Thus, domestic suppliers were also forced into price stability. A precondition, however, was the considerable liberalisation of the economy, that is, price liberalisation in domestic 15

A detailed overview of Latin American stabilisation programmes via exchange rate pegs can be found in Singh et al. (2005, p. 48pp.). A number of Eastern European transformation countries as well as East Asian ‘tigers’ also followed an exchange rate– based stabilisation policy – albeit under different circumstances and in individually specific forms (cf. for example Bofinger et al. 1997 and Horn/Schrooten 1999). 16 For a systematic comparison of the exchange rate–based stabilisation programmes in Argentina, Brazil, and Mexico see Fritz (1999); Fritz (2002) provides a detailed analysis of the Brazilian Plano Real.

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markets and an economic opening up to world markets. Thus, the stabilisation programmes were a good opportunity for governments to enhance economic liberalisation. In most cases, the success of the exchange rate peg materialised immediately. Inflation rates were brought down from three- and four-digit to double-digit levels within weeks. Additionally, in the first months and years, a demand-driven economic boom could be observed due to overall higher demand and improved market expectations together with the end of the inflation-related losses of wage earners. Thus, in the beginning, ‘the best of all worlds’ was realised: an economic stabilisation without adjustment costs, which created a euphoric atmosphere and thus sustained further stabilisation and growth. However, one of the main problems associated with this kind of stabilisation programme, particularly when combined with an anti-inflation policy, is that it leads to an appreciation of the exchange rate. This in turn decreases the competitiveness of a country since exports become more expensive and import prices decline. This appreciation can be explained by the residual inflation that results from the initial rigidity of wages and prices. Thus, the fact that the low inflation level of industrial countries was not achievable overnight became the Achilles heel of the Latin American exchange rate-based stabilisation programmes. Within the first two years after the implementation of the exchange rate anchor, real exchange rates in Argentina, Brazil, and Mexico increased by an average of 25 per cent; between the introduction of the currency board in 1991 and its collapse ten years later, Argentina's real exchange rate appreciated by about 60 per cent (Singh et al. 2005: 51 pp.). This caused a tremendous increase in export prices on world markets and a parallel price reduction of imported goods in these three countries. No country in the region could compensate for the mostly erratic import increases with equally high export rates. Current accounts turned into deep deficits. In combination with increasing capital inflows – in other words, future liabilities vis-à-vis the rest of the world – this situation resulted in significantly rising trade deficits. Trade deficits again required new capital inflows in order to keep the economy solvent and to refinance foreign debt via new loans, whilst trade deficits were increasing. This situation made the countries of the region highly dependent on permanent capital inflows. However, the international capital market turned out to be rather volatile. Following the rapid increase of capital flows towards so-called emerging markets in the first half of the 1990s, a dramatic breakdown at the end of the century eroded market confidence in the solvency of those countries. Due to the increasing trade deficits of the debtor economies, the markets’ mistrust spread like a large-scale fire throughout the major developing economies in Asia, Eastern Europe, and Latin America. Thus, from the mid 1990s onwards, currency and debt crises became the other side of the coin of the initially quite successful exchange-rate stabilisation programmes. In 1994/95, the series of crises started in Mexico; Brazil followed in 1999, and in 2001/02, Argentina's currency board broke down – to mention only

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the largest Latin American economies. Drastic growth reduction, massive fiscal crises, and increasing unemployment were the results. However, even in the beginning, when economic growth rates were still high due to successful anti-inflation policies, the impulses for employment remained limited as jobs were partly destroyed by new imports. In the following section, I draw general conclusions on the exchange rate-based stabilisation programmes in Latin America with respect to the economic processes of inclusion and exclusion. b) The effects of anti-inflation policy, liberalisation, and financial crises on income distribution and employment in Latin America in the 1990s The first-phase effects of anti-inflation policy, liberalisation, and the financial crises on income distribution were not as clear as the impact that the subsequent currency crises had on income distribution and employment as a long-term consequence of the exchange rate-based stabilisation programmes. In the beginning, the reduction of inflation had positive effects for the poor. While the wealthier segments of the population had in the past developed a variety of mechanisms and institutions to protect themselves from inflationary losses, poorer people had only restricted, if any, access to banks and specific financial services. Among wealthier people, for example, credit cards were widely used; a certain amount of time passed between the payment and the billing by the bank, which reduced the real value of the respective expense. In fact, in high-inflation countries, low-income groups readjusted their expenditure practices too. For example, in order to avoid price increases in the following weeks after receiving their monthly salary, these people spent their income immediately on the monthly household shopping in the supermarket. With frequent price rises between 20 and 50 per cent this was of considerable importance. Nevertheless, poorer households had to cope with real income losses that were only absent at the beginning of the stabilisation programmes, when inflation rates came down sharply. These losses mainly resulted from, among other things, a mostly deferred or incomplete adaptation of nominal wages to inflation. However, the initial success of the stabilisation programmes was enormous. Since inflation no longer ate up parts of their income, low-income groups achieved a noticeably higher degree of purchasing power. In Brazil, for example, the demand for typical middle-class food products such as yoghurt and beer strongly increased – a clear indication of the upgrading of the underclass consumer demand. However, even in the case of Brazil, where this aspect was of particular importance due to the country’s especially unequal income distribution, the IMF subsequently concluded in a study that the progressive income distribution effects of the antiinflation policies were limited and only of a temporary nature. A sustainable improvement of the extreme social inequality would have needed more profound instruments such as the redistribution of land ownership, etc. The opening up of these countries to world markets had fewer positive impacts on the labour market. The simultaneous decrease in tariffs and appreciation of the

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currency quantitatively influenced the domestic production structure. In countries such as Argentina, one could observe a downright deindustrialisation process. The latter was only partially justifiable as an unavoidable adjustment policy of the ISI strategy, which aimed to complete national industrial production. Less visible but probably even more important was the noticeable flattening of the industrial depth, that is, the growth of maquiladora (assembly) industries as a reaction by national producers to increased competition.17 In addition, the relative importance not only of commodity products but also of commodity-based industries increased again (Benavente et al. 1996: 56pp.). The resulting employment losses could usually be only partially compensated for by increases in other areas, such as the services sector. Moreover, growth rates in Latin America were not high enough in the 1990s to initiate an inclusion dynamic via job creation that would be comparable to the 1970s. This development meant not only a higher vulnerability of the respective countries to fluctuations in commodity prices, but also that competitiveness had to be built up via low wages. Similarly, the de facto observable increase in productivity was mainly reached by rationalising and outsourcing employment to sub-enterprises rather than through new investments. Altogether, this led to a drastic increase in unemployment and informal work in the region. Yet, the unemployment rate has only limited explanatory power due to the absence of social security systems and the mostly informal forms of employment. A clearer indicator of the employment situation is the extent of informal employment: for example, in Brazil, the rate of informal employment increased from 52 per cent to more than 60 per cent of total employment during the 1990s.18 Today, informal employment in Latin America typically comprises a broad range of activities and remunerations. This includes the high-tech computer company in the backyard that evades taxes and duties as well as street vendors and rural day-labourers. Yet, the absence of a social security system, which affects all forms of employment, poses a much greater difficulty to lower-income groups. In the case of retirement, illness, or unemployment, these groups can only rely on small amounts of savings, if any. Falling living standards become a sincere threat if an informal work place ceases to exist or if income declines significantly. Not only were social security contributions shrinked by the increasing informalisation of employment. Additionally, spending cuts in the social budget and the general crisis of the welfare state led to significant upheavals in social policy. In this context, a new social-policy paradigm developed that focused compensatory public services on specific target groups of the deserving poor rather than defining 17

Messner (1996), for example, proves this in the case of the Argentine industry; Dussel (1997) describes the structural change in Mexico; Singer (1996) analyses the regression of the Brazilian industrialisation process. 18 The sociologist Beck was widely recognised for introducing the buzzword “Brazilanisation” into the debate about the future of employment in Germany. The term describes the ongoing informalisation of employment in Brazil (see for example Die Zeit, 25.3.1999: ’Wir sind alle Brasilianer’).

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formalised and institutionalised claims for benefits as the old system used to do. The effect was a partially and temporarily higher efficiency in poverty reduction. Yet, it was recognisable that such a target group-oriented social policy was strongly pro-cyclical. In the event of a macroeconomic crisis, discretionary programmes are the first ones to be cut for operational reasons; the absolute social security expenses per capita shrink in the context of increasing poverty rates and shrinking social product, respectively (cf. Hicks/Wodon 2001, cited in Hujo 2005: 168). This phenomenon was particularly evident in the context of the currency and financial crises during the second half of the 1990s. The latter resulted in significant economic collapses. Argentina experienced the most dramatic breakdown in national income – approximately 20 per cent – which led to massive, hitherto unknown, poverty problems after four years of severe crisis. In Mexico and Brazil, where the business cycles recovered relatively rapidly, negative growth rates also had to be accepted at the height of the economic crisis. Thus, the currency crises affected the wage level significantly; for example, in Brazil, the wage level declined by more than 10 per cent in real terms between 1999 and 2002 according to DIEESE (Departamento Intersindical de Estatística e Estudos Socio-Econômicos); in Mexico, real wages regained their pre-crisis level from 1994 only in 2001, despite interim phases of high growth rates. Further to this, price hikes in energy, and partly also in food prices, because of the depreciation of the exchange rate disproportionally affected low-income groups. All in all, at the beginning of the new decade, job losses, the informalisation of employment, a declining wage level, and new welfare state mechanisms that made public social spending highly vulnerable to economic crises had destroyed the economic progress that had been made during the first half of the 1990s in the course of successful anti-inflation policy together with economic growth. Between 1990 and 2001, the weighted Gini coefficient decreased only from 51.9 to 51.5 (World Bank 2003: 291); the poor segment of the population increased from 40.5 per cent to 44 per cent (CEPAL 2004:55). Thus, the economic policy project of the 1990s, which aimed to combine stability and growth through economic liberalisation and the opening up of markets, failed. Latin America remains a region where the interest of the economic sovereign in economic and, particularly, monetary stability on the one hand and the preferences of the political sovereign for inclusion on the other hand appear to be specifically incompatible. This is a severe heritage for the future of the continent.

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Literature Bacha, Edmar L./Taylor, Lance (1980): Brazilian Income Distribution in the 1960s: „Facts“, Model Results, and the Controversy, in: Taylor, Lance et al. (Hrsg.): Models of Growth and Distribution for Brazil, New York/Oxford: Oxford Univ. Press, p. 296-342 Baltar, Paulo E. de A./Dedecca, Claudio S./Henrique, Wilnês (1986): Mercado de trabalho e exclusão social no Brasil, in: Oliveira, Carlos E./Mattoso, Jorge (Orgs.): Crise e trabalho no Brasil, São Paulo: Scritta, p. 87-108 Benavente, José M./Gustavo Crespo/Jorge Katz/Giovanni Stumpo (1996): Changes in the Industrial Development of Latin America, in: CEPAL Review, N° 60, December, pp. 49-72 Bielschowsky, Ricardo (1998): Evolución de las ideas de la CEPAL, in: CEPAL cincuenta años (número extraordinario de la Revista de la CEPAL), p. 21-46 Bofinger, Peter/Flaßbeck, Heiner/Hoffmann, Lutz (1997): Orthodox Money-Based Stabilization (OMBS) versus Heterodox Exchange Rate-Based Stabilization (HERBS): The Case of Russia, the Ukraine and Kazakhstan, in: Economic Systems 21/1, p. 1-33 Bordo, Michael/Eichengreen, Barry (eds.) (1993): A Retrospective on the Bretton Woods System. Chicago: Univ. of Chicago Press Bresser Pereira, Luiz C. (1996): Crise econômica e reforma de Estado no Brasil, São Paulo: Editora 34 Cardoso, Fernando Henrique (1986): Entrepreneurs and the Transition Process: The Brazilian Case, in: O’Donnell, Guillermo/Schmitter, Philippe/Whitehead, Laurence (Hrsg.): Transitions from Authoritarian Rule (Bd. 3, Comparative Perspectives), Baltimore: Johns Hopkins Univ. Press, p. 137-153 Cardoso, Fernando Henrique/Faletto, Enzo (1969): Dependencia y desarrollo en América Latina. Ensayo de interpretación sociológica, Mexico D.F./Buenos Aires: Siglo XXI (deutsche Übersetzung: Abhängigkeit und Entwicklung in Lateinamerika, Frankfurt a. M.: Suhrkamp 1976) Cepal [Comisión Económica de America Latina y el Caribe] (2004): Panorama Social de América Latina. Santiago de Chile Cepal (1969): El pensamiento de la CEPAL. Santiago de Chile: Editorial Universitaria Córdova, Armando (1973): Strukturelle Heterogenität und wirtschaftliches Wachstum, Frankfurt a. M.: Suhrkamp Cortázar, René (1996): Sharing Risk in Volatile Labour Markets, in: Hausmann, R./Reisen, H. (eds.): Securing Stability and Growth in Latin America. Paris: OECD, p. 215-232 Deininger, Klaus/Squire, Lyn (1996): A New Dataset: Measuring Income Inequality, in: World Bank Economic Review 10(3), p. 565-591 Dussel Peters, Enrique (1997): La economía de la polarización. Teoria y evolución del cambio estructural de las manufacturas mexicanas (1988-1996), Mexico DF: Editorial JUS/UNAM

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Eichengreen, Barry/Hausmann, Ricardo (eds.) (2005): Other People’s Money – Debt Denomination and Financial Instability in Emerging Market Economies. Chicago: Univ. of Chicago Press Ferranti, David de/Perry, Guillermo E./Gill, Indermit S./Servén, Indermit S. (2000): Securing Our Future in a Global Economy Fishlow, Albert (1973): Some Reflections on Post-1964 Brazilian Economic Policy, in: Alfred Stepan (Hrsg.): Authoritarian Brazil, New Haven/London: Yale Univ. Press, p. 69-118 Franco, Gustavo H. B. (1998): O Plano Real em perspectiva de médio prazo, in: Velloso, João P. R. (Hrsg.): O Brasil e o mundo no limiar do novo século (Forum Nacional, 1997, Bd. II), Rio de Janeiro: José Olympio, p. 57-80 Fritz, Barbara (1999): Implikationen der Asienkrise für das lateinamerikanische Entwicklungsmodell der 90er Jahre, in: DIW Vierteljahreshefte zur Wirtschaftsforschung, Jg. 68, Heft 1, p. 22-35 Fritz, Barbara (2002): Entwicklung durch wechselkurs-basierte Stabilisierung? Der Fall Brasilien. Marburg: Metropolis Hausmann, Ricardo/Gavin, Michael (1996): Securing Stability and Growth in a Shock-Prone Region: the Policy Challenge for Latin America, in: Hausmann, R./Reisen, H. (eds.): Securing Stability and Growth in Latin America. Paris: OECD, p. 23-64 Herr, Hansjörg/Priewe, Jan (2005): Macroeconomics of Development and Poverty Reduction – Strategies Beyond the Washington Consensus. Baden-Baden: Nomos Hicks, Norman/Wodon, Quentin (2001): Social Protection for the Poor in Latin America, in: Cepal Review, Nr. 73, Santiago de Chile, p. 95-116 Horn, Gustav/Schrooten, Mechthild (1999): Twin Crisis in Asia: The Failure of Fixed Exchange Rate Regimes and Delayed Institutional Adjustment, in: DIW Vierteljahreshefte zur Wirtschaftsforschung, Jg. 68, Nr. 1, p. 10-21 Hujo, Katja (2005): Wirtschaftskrisen und sozioökonomische (Un-)Sicherheit in Lateinamerika, in: Fritz, B./Hujo, K. (Hg.): Ökonomie unter den Bedingungen Lateinamerikas. Franfurt a. M./Madrid: Vervuert, p. 153-174 Hurtienne, Thomas (1985): Wirtschaftskrise, internationale Verschuldung und Entwicklungspotentiale in Lateinamerika, in: Prokla 59, Bd. 15, Nr. 2, p. 34-64 Hurtienne, Thomas (1986): Fordismus, Entwicklungstheorie und Dritte Welt, in: Peripherie, Nr. 22/23, p. 60-110 Lara Resende, André (1990): Estabilização e reforma: 1964-1967, in: Abreu, Marcelo de P. (Hrsg.): A ordem do progresso: Cem anos de política econômica republicana, 1889-1989, Rio de Janeiro: Campus, p. 213-231 Lüken gen. Klaßen, Mathilde (1993): Währungskonkurrenz und Protektion. Peripherisierung und ihre Überwindung aus geldwirtschaftlicher Sicht (Studien zur monetären Ökonomie, Bd. 12), Marburg: Metropolis Mesa-Lago, Carmelo (1978): Social Security in Latin America: Pressure Groups, Stratification and Inequality, Pittsburgh: Univ. of Pittsburgh Press

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Messner, Dirk (1996): Wirtschaftsstrategie im Umbruch. Anmerkungen zu den ökonomischen und politischen Determinanten von Wettbewerbsfähigkeit, in: D. Nolte/N. Werz (Hrsg.): Argentinien (Schriftenreihe des Instituts für Iberoamerika-Kunde, Hamburg, Band 42), p. 149-176 Nitsch, Manfred (1993): Das Geld- und Finanzwesen in Lateinamerika: Skizzierung eines Forschungsprogramms, in: Stadermann, Hans-Joachim/Steiger, Otto (Hrsg.): Der Stand und die nächste Zukunft der Geldforschung. Festschrift für Hajo Riese zum 60. Geburtstag, Berlin: Duncker & Humblot, p. 459-470 Nitsch, Manfred (1999): Vom Nutzen des monetär-keynesianischen Ansatzes für Entwicklungstheorie und -politik, in: Schubert, Renate (Hrsg.): Neue Wachstums- und Außenhandelstheorie – Implikationen für die Entwicklungstheorie und -politik (Schriften des Vereins für Sozialpolitik, Neue Folge Bd. 269), Berlin: Duncker & Humblot, p. 183-214 O’Donnell, Guillermo/Schmitter, Philippe/Whitehead, Laurence (Hrsg.) (1986): Transitions from Authoritarian Rule (4 Bd.), Baltimore: Johns Hopkins Univ. Press Oliveira, Francisco de (1972): A economia brasileira: Crítica à razão dualista, in: Estudos (Cebrap), Nr. 2, Petrópolis: Vozes (cited from the 5th edition, 1987) Panizza, Ugo (2004): Original Sin and Monetary Cooperation. Paper presented at the workshop on “New Issues in Regional Monetary Coordination: Understanding North-South and South-South Arrangements” at the Institute for IberoAmerican Studies in Hamburg, Germany, from 5 to 7 of July 2004. Forthcoming in: Fritz, B./Metzger, M. (eds.) (2005): New Issues in Regional Monetary Coordination – Understanding North-South and South-South Arrangements. London: Palgrave Pochmann, Márcio (2000): Trabalho informal: desemprego disfarçado?, in: Rumos do Desenvolvimento, Jan., p. 16-17 Portantiero, Juan C. (1989): La múltiple transformación del Estado latinoamericano, in: Nueva Sociedad 104, p. 88-94 Prebisch, Raúl (1949): El desarrollo económico de la América Latina y algunos de sus principales problemas (abgedruckt auch in: Boletin Economico de América Latina, Bd. VII, Nr. 1 Febr. 1962); zitiert nach der deutschen Übersetzung: Die ökonomische Entwicklung Lateinamerikas und ihre Hauptprobleme, in: Prebisch, Raúl: Für eine bessere Zukunft der Entwicklungsländer, Berlin/DDR 1968, p. 9-69 Riese, Hajo (2004): Selected Essays. Edited by Jens Hölscher and Horst Tomann. London/New York: Palgrave Rodrik, Dani (2001): Why is there so much economic insecurity in Latin America?, in: CEPAL Review (Santiago de Chile), No. 73, p. 7-30 Sachs, Jeffrey (1985): External Debt and Macroeconomic Performance in Latin America and East Asia, in: Brookings Papers on Economic Activity, No. 2, p. 523-64

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Schelkle, Waltraud (1992): Konstitution und Erosion einer Geldwirtschaft: Entwicklungsprobleme Indiens seit der Unabhängigkeit, Schriften des DIE, Berlin, Bd. 102 Schneider, Ben R. (1991): Politics within the State. Elite Bureaucrats and Industrial Policy in Authoritarian Brazil, Pittsburgh: University of Pittsburgh Press Schvarzer, Jorge (2002): Die lange Krise der Verschuldung in Lateinamerika, in: Lateinamerika Analysen Nr. 2, p. 67-102 Singer, Paul (1996): São Paulo: Industrielle Krise und Deindustrialisierung, in: Gabbert, Karin et al. (Hrsg.): Offene Rechnungen (Lateinamerika Analysen und Berichte, Bd. 20), Bad Honnef: Horlemann, p. 117-138 Singh, Anoop/Belaisch, Agnes/Collyns, Charles/De Masi, Paula/Krieger, Reva/Meredith, Guy/Rennhack, Robert (2005): Stabilization and Reform in Latin America: A Macroeconomic Perspective of the Experience Since the 1990s. IMF Occasional Paper No. 238 Tavares, Maria da Conceição/Serra, José (1972): Além da estagnação, in (dies.): Da substituição de importações ao capitalismo financeiro. Ensaios sobre a economia brasileira, São Paulo: Zahar, p. 153-208 Williamson, John (1990): What Washington Means by Policy Reform, in: Williamson, J. (Hrsg.): Latin American Adjustment. How Much Has Happened?, Washington D.C.: Institute for International Economics, p. 7-20 World Bank (2003): Inequality in Latin America – Breaking with History? Washington D.C.

Exploitation as an International Legal Concept Susan Marks

In critical commentary on South Africa’s Truth and Reconciliation Commission, Mahmood Mamdani advanced an argument that became known as the ‘beneficiary thesis’. At stake was the question of whom the truth and reconciliation process should engage. The Commission’s work rested on the idea that “key to the injustice of apartheid [was] the relationship between perpetrators and victims” (Mamdani, 2001: 385). According to Mamdani, however, the pivotal relationship should rather have been that between those who benefited and those who suffered from the system itself. For the perpetrators were a relatively small group, when compared to apartheid’s many beneficaries, and so too were the perpetrator’s victims when compared to the vast majority of the population victimised by the system’s indignities, hardships and oppressions on a daily basis. “To what extent”, Mamdani wondered, “does a process that ignores the aspirations of the vast majority of victims risk turning disappointment into frustration and outrage [...] ?” (ibid.). Since apartheid was fundamentally a “program for massive redistribution”, postapartheid justice had to be “social justice, ... systemic justice”, and accordingly, what was called for was systemic change (ibid.: 387). In effect, though he does not use the term, Mamdani is speaking here of exploitation. He is saying that the TRC failed to grapple with the extent to which, and the ways in which, one section of society had prospered at the expense of another. It failed to grapple with apartheid as a system for using some people as a means for securing the advantage of others. And if its diagnosis was inadequate, then inevitably its prescription also fell short. Of course, Mamdani does not suggest that South African history is unique in this respect. Exploitation is by no means only a feature of apartheid, and the TRC is by no means alone in choosing not to see it. From a Marxist perspective, exploitation is indeed a structural feature of capitalism. It is also, of course, a key preoccupation in histories of imperialism, and in analyses of the global distribution of power and wealth in the contemporary world. In this paper I want to consider exploitation from the standpoint of an interest in international law. In doing so, what is most immediately striking is that, as in the case of the TRC, this is a phenomenon that goes to a large extent unremarked. There is much discussion in international legal circles of discrimination, injustice, exclusion, violence, indignity, and abuse. There is a great deal of talk about victims, vulnerable groups, marginalised communities, disempowered populations, and less developed countries. But there is very little mention of those on the other side of the equation, those advantaged in these processes and relations. To be sure, exploitation is not entirely absent from the vocabulary of international law. The exploitation of children is prominent on the international legal agenda, as is the

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sexual exploitation of women and, more generally, human trafficking. But while those are clearly very important and serious forms of exploitation, it is equally clear to many of us, I think, that they by no means exhaust the meaning of exploitation. How are we to understand the character and proportions of exploitation in contemporary conditions? That is obviously a very big question, which could be investigated in a number of different registers. My approach will be theoretical, and my guide will be a literature that begins with Karl Marx’s analysis of the workings of capitalism, and includes work by later scholars building on his insights. Against that background, I will then re-focus on international law. The upshot of my discussion will be the need for a new kind of international legal engagement with exploitation, more adequate to the realities of our rapacious world. But, since exploitation is not only an analytical concept but also a term of everyday speech, I should start by reviewing some of its many connotations.

Exploitation What is it to exploit someone? Dictionaries commonly distinguish between a positive or neutral meaning and a pejorative meaning. To exploit in the positive or neutral sense is to make use of, or derive benefit from, resources, assets, skills or opportunities. So, for example, I may exploit a patent, an oil field, or indeed my own talents. To exploit in the pejorative sense is to take wrongful advantage of another person for one’s own ends, to pursue one’s own gain at another’s unfair expense. This, of course, is the sense in which I have been using the term so far. On closer inspection, however, the distinction between these two meanings may not be so stable. Concerns about the impact of intellectual property protection for control over essential medicines, food seeds and indigenous knowledge, and about the social costs of natural resources extraction, remind us that exploitation in the positive or neutral sense may not always be positive or neutral. It too may involve the pursuit of one person’s or collectivity’s gain at another’s unfair expense. The term ‘exploitation’ is a relatively recent addition to the English language. I glean from the Oxford English Dictionary that the noun ‘exploit’, meaning a feat or marvellous deed, goes back a very long way – to the 16th century, and maybe earlier. As a verb, exploit apparently had a broadly corresponding meaning. To exploit was initially to accomplish, achieve, or act with effect. It was only during the mid and later 19th century that the modern meaning and especially the modern pejorative meaning began to develop, in tandem with the ‘process’ noun exploitation. Exploitation, then, entered the English language at the same time as the term ‘capitalism’ came into currency. That, of course, is not a coincidence, since it was above all in the debates and writings which culminated in the

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publication of Karl Marx’s Das Kapital in 1867 and its appearance in English in 1887 that the new concept took off.1 Marx’s Analysis Marx’s account of exploitation appears in the first volume of Capital, in the context of his discussion of how capital produces and is produced. To recall his basic argument, the starting-point is a distinction between necessary labour and surplus labour. Necessary labour is that which is needed for the worker’s own subsistence. Surplus labour is that which goes beyond what is needed for the worker’s own subsistence. Marx imagines the worker’s day being divided into two. In the first part the worker undertakes necessary labour. During this time, she is working, in effect, for herself, covering her own costs, reflected in her wages. In the remaining part of the day, the worker undertakes surplus labour. During this time, she is no longer working for herself; what she produces belongs to her boss. So while necessary labour reproduces its own value, surplus labour generates what Marx calls ‘surplus-value’, the basis for the accumulation of capital. The proportion of necessary labour to surplus labour determines what he terms the ‘rate of surplus-value’. In Marx’s analysis, exploitation is the extraction of surplus labour. And the degree of exploitation in any given situation is expressed in the rate of surplus-value (Marx, 1976: 320 et seqq.). In his celebrated discussion of the limits of the working day, Marx draws out some of the implications of this analysis. In the first place, capital accumulates by appropriating surplus-value, that is to say, in his terms by exploiting labour. With this in mind, Marx proposes that there is something uncanny about capital, something we intuitively feel is not right. In his memorable image, capital has a vampiric quality, and exhibits a strange kind of living death: “[c]apital is dead labour [ie. accumulated surplus-value reaped from labour in the past] which, vampire-like, lives only by sucking living labour, and lives the more, the more labour it sucks” (ibid.: 342). Further, as the last part of this passage suggests, the logic of capital accumulation is that it is always in the interests of the capitalist to exploit workers more, so as to raise the rate of surplus-value. The higher the rate of surplus-value, the more capital can be accumulated. One aspect of this concerns the length of the working day: the longer the working day, the more the rate of surplusvalue will rise. But just as the capitalist is driven to push for the addition of more hours, so too the worker will want to resist that. Faced with the prospect of having her labour not simply used, but abused or ‘despoiled’, the worker will want to demand fair limits to the working day (ibid.: 343).2

1

2

The first English translation of Das Kapital, by Samuel Moore and Edward Aveling, appeared in 1887. It was based on the third German edition of volume 1, and was edited by Friedrich Engels. (‘Using my labour and despoiling it are quite different things’.)

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Marx considers that exploitation is a feature of all modes of production based around a social division of classes. Thus, under capitalism, it is the fact that the ruling class own the means of production, while the working class own nothing but their own labour-power, that enables the ruling class to extract surplus-value. Workers are induced to undertake surplus labour for their employers because they know that if they don’t, there are others waiting on the sidelines – the ‘reserve army’ of the unemployed – who will. What, for Marx, is distinctive about capitalism compared to other class-based modes of production, such as slavery and feudalism, is that in the capitalist mode of production exploitation is masked. As economist Anwar Shaikh explains, the “historical specificity of capitalism arises from the fact that its relations of exploitation are almost completely hidden behind the surface of its relations of exchange” (Shaikh, 1997: 73). Whereas in slaveowning and feudal societies the exploitation of labour is readily apparent, in capitalist society labour is paid for and regulated according to a contract negotiated between two seemingly free and equal parties. It is only when we look behind, or beneath, that contract at the relations of production that we find “a world of hierarchy and inequality, of orders and obedience, of bosses and subordinates” (ibid.). We find a world in which the working class works to support the ruling class, and hence “to reproduce the very conditions of their [the former’s] own subordination” (ibid.: 71). The account of exploitation I have just described obviously aims at explaining the exploitation of labour as an aspect of capitalism. Some scholars have drawn a distinction between this ‘technical’ sense of exploitation and the ‘general’ or everyday sense of exploitation which I sketched out at the beginning of this discussion. The point is commonly made that in his various writings Marx used the term in both of these senses. On the other hand, one may equally argue that, even when he was using the term in its technical sense, Marx was referring to the general idea that the gain of some is being pursued at the unfair expense of others. In his chapter on the working day, Marx imagines what a worker protesting the excessive lengthening of the working day might say to his employer: “the thing you represent when you come face to face with me [ie. capital] has no heart in its breast. What seems to throb there is my own heartbeat” (Marx, 1976: 343). Exploitation in Marx’s account is expressed in this conceit. Capitalism is an exploitative system because the ruling class lives off the working class; it draws its life (or rather its strange, undead existence) from the working class. And the more the ruling class flourishes, the more the working class is debilitated. As Marx put it in an earlier work, “in the same relations in which wealth is produced, poverty is produced also” (ibid.: 799).3

3

fn. 23 Marx quotes here from his own earlier work, The Poverty of Philosophy.

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Exploitation Today Marx, of course, wrote in the milieu of 19th century Europe and specifically, in the case of Capital, Victorian England. Since that time, capitalism has obviously gone through many transformations. But the great changes affecting productive processes have not put an end to exploitation; they have only altered its character and contexts. As many have observed, the conditions of the Victorian factory have been not so much overcome as displaced elsewhere. Meanwhile, post-Fordism has brought with it new forms of exploitation, among them what Luc Boltanski and Eve Chiapello call the exploitation of mobility (“some people’s immobility is necessary for other people’s mobility” (Boltanski/Chiapello, 2005: 362)). At the same time, anyone interested in the concept of exploitation today needs to take into account Marx’s many interpreters and critics on this theme. An important and ongoing debate is concerned with the ‘labour theory of value’ that underpins his analysis (see e.g. Cohen, 1997: 94). I am going to leave that to one side, however, and highlight three other issues of more immediate salience to my discussion. The first concerns the centrality of class in Marx’s analysis. It is the fact that the ruling class own the means of production, while the working class own nothing but their own labour-power that enables the ruling class to extract surplus-value. In recent decades exploitation has been rethought in connection with inequalities arising from other social divisions, such as those based on gender, race and ethnicity. But Marxist scholars argue that the division of classes remains primordial, not because it is more serious or worrying than those other asymmetries, but because it mediates them, so that exploitation always remains impressed with the stamp of the capitalist mode of production. As Anwar Shaikh explains: “This does not mean that these other relations lack a history and logic of their own. It only means that within any given mode of production, they are bound to the system by the force field of this central relation, and characteristically shaped by its ever-present gravitational pull” (Shaikh, 1997: 74). So, for example, “capitalist patriarchy is distinct from feudal patriarchy precisely because capitalist relations of production are characteristically different from feudal ones” (ibid.: 75). The second issue relates to Marx’s emphasis on coercion. He writes of workers being ‘compelled’ to sell their labour-power, and depicts surplus labour as an instance of forced unremunerated labour.4 How are we to understand this emphasis on coercion? His interpreters have attached differing significance and weight to this aspect. However, most are clear that what is at issue is less the action of particular individuals than the impact of general constraints and influences. It is the force of circumstances within the capitalist order that makes people consent to take part in exploitative arrangements.5 While these circumstances may include the threat or use of violence, a key factor is likely to be the distribution of alternative 4

5

See further J. Reiman, ‘Exploitation, Force, and the Moral Assessment of Capitalism: Thoughts on Roemer and Cohen’ in K. Nielsen and R. Ware (eds.), Exploitation (Atlantic Highlands, NJ: Humanities Press, 1997), p. 154. See further A. Wood, Karl Marx, 2nd ed. (London and New York: Routledge, 2004), 253.

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modes of earning a livelihood. At the same time, ideology also plays an important part. I will return to that point in later discussion. Finally, there is the question of whether exploitation should be characterised as unjust. Marx definitely thought it was undesirable, but some readers have understood him as arguing that it cannot be regarded as unjust, inasmuch as concepts of justice are themselves rooted in specific historical circumstances.6 That is to say, there is no transhistorical standard of justice, only standards that co-occur with – because they are functional to – particular socio-historical contexts. From this perspective, exploitation is just in capitalist conditions. However, those conditions are themselves unjust when assessed against the possibility of transformative change. This points to the need to consider exploitation as simultaneously contingent and necessary – contingent, in the sense that things do not have to be as they are, but also necessary, in the sense that exploitative relations are not simply arbitrary or accidental, but belong with the logic of a system which must itself be brought within the frame.

Exploitation and International Law My focus to this point has been on exploitation in general. Let me now take up the question of exploitation as an international legal issue. When activists invoke international law to challenge exploitation, when lawyers advise on rights and duties regarding exploitation under international law, and when academics discuss the theme of exploitation in international legal writing, what is it that they have in mind? What do such people talk about when they talk about exploitation? Much of the time, reference to exploitation in international legal materials is to exploitation in the positive or neutral sense indicated earlier: the exploitation of oil and gas, the exploitation of fish stocks and forests, the exploitation of patents, trade marks and copyright, and so on. As I noted then, the distinction between the positive or neutral sense and the pejorative sense of the term ‘exploitation’ may not in fact be as stable as at first appears. Certainly, concerns about the negative impacts of mining, fisheries, forestry and intellectual property rights are reflected in international law, and in writing about it. Such concerns are, of course, the stuff of international environmental law, and are also very much on the agenda of international trade law, international human rights law, and the international law of indigenous peoples’ rights. What is important for present purposes, however, is that the issue in these arenas is almost never exploitation (in the pejorative sense) as such. Rather, it is non-sustainability, environmental degradation, expropriation of indigenous property, unfair trade, or the abuse of human rights. To give an example, the TRIPs agreement has been subjected to sustained criticism for its impact on access to drugs needed to treat HIV-AIDS. But while the point is undoubtedly in the background that the shareholders of pharmaceutical 6

See, e.g., ibid, chap. 9, passim.

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companies are being enabled to prosper at the expense of – quite literally, to drain life from – people infected with this disease, this point remains in the background. Front and centre are instead questions to do with the human rights of those infected and the measures that may be taken by governments in poor countries (compulsory licensing, etc.) to make the drugs available. Those who have benefited from patent revenues remain comfortably out of view. Beyond this engagement with exploitation in the ‘positive or neutral’ sense, there are also some contexts in which exploitation is used in international legal materials to name a problem, i.e. in a pejorative sense. In broad terms there are three such contexts. The first concerns prostitution and trafficking for sex and domestic work. The earliest treaty in which exploitation is mentioned is the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. Under this treaty states parties agreed to punish anyone involved in what had earlier been called the ‘white slave trade’ and ‘traffic in women’, and was now called ‘exploitation of prostitution’. More recent treaties carry forward the language of exploitation with respect to forced prostitution and trafficking for domestic labour and certain other purposes. The most important of these treaties is the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (the ‘Palermo Protocol’), which provides for the criminalisation of human trafficking, and obliges states parties to take measures to prevent the practice and provide protection for victims. The Protocol proceeds from a definition of human trafficking as non-consensual recruitment or transfer for the purpose of exploitation, itself defined to “include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” (Article 3(a)). The second context in which exploitation features as a problem in international law is in treaties concerning children, such as the 1989 UN Convention on the Rights of the Child7 and its Optional Protocol on the Sale of Children and Child Prostitution and Pornography, opened for signature in 2000. The Optional Protocol obliges states parties to criminalise the act of “offering, delivering or accepting, by whatever means, a child for the purpose of ... sexual exploitation” (Article 3 (1)). In fact, a very considerable proportion of current writing and activism on the theme of exploitation pertains to the exploitation of children, whether that takes the form of commercial sexual exploitation, non-commercial sexual exploitation, or nonsex-based child labour. In recent years, reports have surfaced of the sexual exploitation of refugee and displaced children, and of other children in conflict or ‘post-conflict’ zones – mostly girls – by members of peacekeeping forces, officials of humanitarian agencies, and aid workers. The abuses involve also adult women, and exploitation of this kind is today a preoccupation within international refugee 7

See esp. article 19(1).

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law and policy, the international protection of human rights, and the legal regulation of peacekeeping operations, among other domains. Finally, exploitation is addressed in treaties and other international instruments dealing with slavery, forced labour, and workers’ rights to fair pay and decent conditions. There is, of course, a long history of international law-making on these matters, especially within the framework of the International Labour Organization. But what is intriguing is that the term ‘exploitation’ is very rarely used in this context. On the ILO website there is an online thesaurus – described as a compilation of more than 4000 terms relating to all aspects of the world of work – but ‘exploitation’ is not among them.8 The only ILO instruments in which the word is used relate to indigenous peoples, people with disabilities and migrants. So, for example, in the Organization’s Indigenous and Tribal Populations Recommendation, adopted in 1957, it is advised that ILO member states should take administrative measures to “prevent the exploitation of workers belonging to the populations concerned on account of their unfamiliarity with the industrial environment to which they are introduced.”9 With regard to disability, there is a passing reference to exploitation in an instrument dealing with sheltered employment,10 and so too there are a few minor references to exploitation of particular sorts in instruments dealing with migrant workers.11 To return now to my question ‘what do people engaged with international law talk about when they talk about exploitation?’, a few points emerge from what I’ve just said. In the first place, it is clear that what is in question is very often sexual exploitation. Here exploitation is a form of violence against women or child abuse. Where trafficking is involved, it is also an important domain of transnational crime. The focus of international legal initiatives is accordingly on the creation of an adequate regime of crime control, and on the implications for human rights, the rights of refugees, the legal regulation of peacekeeping, and so on. At the same time, these initiatives are linked through the concept of exploitation to a history of international law-making that goes back to the moral panics about prostitution and ‘white slavery’ of the first half of the 20th century. 8

See www.ilo.org/public/libdoc/ILO-Thesaurus/english/. Indigenous and Tribal Populations Recommendation, 1957, ILO Recommendation No. 104, para. 36(g). The later Convention on Indigenous and Tribal Peoples in Independent Countries, 1989 (ILO Convention No. 169) is more demanding with respect to the guarantee of fair working conditions for indigenous employees. However, it does not use the term ‘exploitation’. See article 20. 10 Vocational Rehabilitation and Employment (Disabled Persons) Recommendation, 1983, ILO Recommendation No. 168, para. 11(m). 11 Employment Policy (Supplementary Provisions) Recommendation, 1984, ILO Recommendation No. 169, para. 43(b). Exploitation of workers in the maritime sector is also touched on in the ILO Maritime Labour Convention, 2006: see Guideline 1.4.1, para. 2(d) and (e). See also International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, article 43(1)(d), recognising the right of migrant workers to be protected from exploitation in the shape of discriminatory rents. 9

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Additionally, exploitation is associated in international law with forced labour and the denial of decent working conditions and of fair pay. On the other hand, the fact that the word ‘exploitation’ is not normally part of the ‘official’, formal discourse of the ILO and other organisations on these matters may suggest a perception that the concept of exploitation does not belong in the sphere of labour regulation, perhaps because it is too political, or too divisive, or simply too embarrassing. With regard to the exceptional contexts in which the word ‘exploitation’ has been used, labour standards in these contexts are hard to detach from the long history of paternalism towards indigenous peoples, people with disabilities, and other groups represented as incapable, helpless, and touchingly innocent of the ways of the world. Needless to say, this is a posture more conducive to justifying exploitation than to curbing it. If we compare all this with the account of exploitation which I outlined earlier, there are some commonalities, but also some important differences. To begin with the commonalities, exploitation is again understood as a matter of pursuing gain at another’s unfair expense. The core idea of treating someone as the instrument of one’s own ends is certainly there in international law. The differences start to appear as soon as we come to the question of what that entails. There are at least five aspects to this. First, international law insists, as I have recalled, that workers have rights to fair pay and decent conditions. In doing so, however, its implicit message is that exploitation is work gone wrong. Exploitative employment appears in international law as a kind of pathology of the labour contract. What the Marxian analysis brings out is that, on the contrary, exploitation belongs with the normal functioning of a system in which capital accumulation depends on labour exploitation. There is a systemic impetus, a momentum and an orientation towards practices and relations that are more and more exploitative. Second, international legal engagement with human trafficking and child exploitation has made vivid the relation between exploitation and inequalities in the sphere of gender. It has also highlighted the important point that these inequalities affect not only the extent, but also the forms of exploitation. Most obviously, women and girls are disproportionately exposed to exploitation for sex and domestic work. But which women and girls are disproportionately exposed? While the question of the ‘root causes’ of human trafficking is part of the debate, it cannot dispose of the much larger question of the socio-economic conditions in which this activity becomes possible and develops – not just as a category of transnational crime, but also, of course, as a branch of business. A third point relates to coercion. ‘Human being – not for sale’ is the slogan of the Council of Europe’s current anti-trafficking campaign. It’s a good slogan for an anti-trafficking campaign, but from another perspective, the sale of people compelled through the force of circumstances to alienate their own energy, time, and hence life – their ‘labour-power’, in Marxist terminology – is the quintessential capitalist transaction. The point here is not that wage-labour is indistinguishable from forced or trafficked labour – quite clearly, these forms of labour are distinguishable. Nor is it, more generally, that the degree and nature of labour

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exploitation remain always the same, and always objectionable in the same measure – again, that is clearly not right. The point is simply that account must be taken of the compulsion that comes not from violence, threats or deceit, but from the limitation of options and the denial of opportunities. Fourth, we may notice that in exploitative relations a redistribution occurs, such that the advantage of some is bought at the cost of the disadvantage of others. Some gain, while others lose. Thus, for Marx, the exhaustion of the worker corresponds to the enrichment of the capitalist. More generally, privilege is linked to deprivation. It follows that challenge to exploitation is itself a redistributive demand, a demand for a new allocation of what is collectively available. In the international legal materials we have surveyed, relatively little is evident of this ‘political’ aspect. Anti-trafficking initiatives aim at the implementation and enforcement of criminal sanctions, while the focus of efforts concerning child labour, forced labour and unfair employment is on regulatory action, backed up by public education. This approach is valuable but it carries the risk of depoliticisation and demobilisation. For if the problem and its solutions seem to lie in the domain of morality, culture, expertise, administration, or law, why bother with political struggle? This brings me to what is perhaps the central insight of exploitation theory – the insight that exploitation is contingent, but also, at another level, necessary. International legal scholars, and especially critically-minded ones, are very alert to the problem which some years ago Roberto Unger called ‘false necessity’.12 They are very aware that social realities are often made to seem like facts of nature when in fact they are historical artefacts which have been created and can be changed. Thus, (among innumerable other things) exploitative arrangements need not be as they are.13 That is, of course, the premise from which all activism for global justice proceeds. What is less frequently observed is the Marxian point that these arrangements are not simply random facts, but coherent elements within the dynamic totality of the world as a whole. Viewed in this light, the problem is not just false necessity, but also ‘false contingency’, as we might term it. Against the false contingency that leaves us to think of injustice as arbitrary or accidental, exploitation theory invites us to see that there are instead systemic logics at work. The Ideology of Mutuality If exploitation as an international legal issue maps only inadequately onto the much more pervasive reality described by Marx and later analysts, why is this so? How are we to account for such a disjuncture between international law and material reality? Quite obviously the explanation is to be sought in the play and interplay of 12 13

See esp. R. Unger, False Necessity (London: Verso, rev. ed., 2001). Perhaps more than any other international legal scholar, David Kennedy has thematised this issue of winners and losers. See, e.g., D. Kennedy, The Dark Sides of Virtue (Princeton, NJ: Princeton University Press, 2004).

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many different phenomena. Of these I am interested now in just one: ideology. This is a word that has been, and continues to be, used in a wide variety of ways. I use the term to refer to the rhetorical and other symbolic processes that help to sustain prevailing privilege by making it seem justified and legitimate. Of course, ideology is often associated with the notion of false consciousness. Note, however, that my usage does not assert that ideology involves error. On the contrary, it takes ideology partly to constitute the truth of the social relations sustained. While Marx thought that all class societies involved exploitation, his analysis brings out the point that what is distinctive about capitalism is that exploitation is masked. Whereas in slave-owning and feudal societies exploitation is entirely patent, in capitalist society it gets concealed behind the formal freedom and equality of the labour market. Hence Marx’s spatial image of surface and depth. On the surface is a “very Eden of the innate rights of man ... [in which the capitalist and the worker] contract as free persons, who are equal before the law” (Marx, 1976: 280). It is only when we move from the glare of exchange down into the depths of production that a different picture of wage-labour begins to emerge, a picture of unfreedom and inequality. This analysis remains pertinent, but I want additionally to consider another aspect of what legitimates privilege in the contemporary world. This aspect might be called the ‘ideology of mutuality’. Marx in fact touches on it in the passage I just cited. In the ‘very Eden’ that is the surface-level in capitalist society, not only are the parties to the labour contract free and equal; they also “work together to their mutual advantage, for the common weal, and in the common interest” (ibid.). If this idea could serve as ideology in Marx’s day, it has surely become absolutely central to legitimation processes in the 21st century, when the Zeitgeist is all about mutual advantage. Our talk is of ‘win-win’, ‘good for the planet, good for you’, and ‘a rising tide lifts all boats’. Synergies, interdependence, and teamwork are our abiding preoccupations, and when someone claims to discern a ‘zero-sum’ game, we say: try harder, there is always some angle from which everyone can be shown to be better off. In many ways we are actually quite aware of inequality today. To a much greater extent than in Marx’s time, we confront discrimination (albeit, of course, still very partially and inadequately) – even its subtle forms, like institutional racism. What we seem to find much more difficult to contemplate is exploitation. Fortunately, when the going gets tough, there are always economists, policy analysts and even philosophers on hand, ready to allay our fears by explaining that those who lose actually also win. What exploitation theory reminds us is that this is ideology. Concealed behind the veneer of mutuality is a reality in which (to repeat) “in the same relations in which wealth is produced, poverty is produced also” (ibid.: 799). I highlight this not, as indicated, because I think the ideology of mutuality is a novel phenomenon, but because within expert discourses, everyday talk and indeed unspoken ‘common sense’ it seems to me to have acquired new significance and new centrality. And if mutuality has become central to the legitimating ideology of capitalism today, then equally, exploitation must become

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central to the critique of that ideology. Against the ideology that asserts that ‘a rising tide lifts all boats’ etc. must be counterposed the critique of a distribution of advantages and disadvantages which is systematically asymmetrical. It bears some emphasis that the claim here is not that ideology involves falsehood. Perhaps a rising tide does actually lift all boats. I am not sure that I fully understand the implications of this phrase as it is used by economists and others, but I am willing to accept that it may be true. Rather, the claim is that ideology masks, conceals, or screens off other important aspects of reality; in effect, it takes up too much space and prevents us from seeing oppression. To return to the ideological phenomena with which Marx was concerned, the parties to the labour contract really do contract as formally free agents, and they really are equal before the law. But just as the freedom and equality of the labour market mask the unfreedom and inequality that prevails in productive relations, so too mutuality (however real) masks exploitation.

Conclusion Let me briefly recapitulate before concluding. I began by observing that the problem of exploitation goes largely unremarked in international law. Insofar as this problem is remarked, I have argued that international legal discussions do scant justice to the much richer concept explicated by Marx and later analysts. I have suggested that this may have something to do with what I have called the ideology of mutuality, inasmuch as that tends to obscure the extent to which enhancements of the life-chances of some are linked to limitations of the lifechances of others. The thrust of my analysis is that international law needs to develop a new kind of engagement with the problem of exploitation. What might this entail? In the first place, it would move to the centre of international law the question of beneficiaries. International law has long been preoccupied with victims – victims of human rights abuse, victims of discrimination, victims of war crimes. In recent years, with developments in the sphere of international criminal law, it has also become much preoccupied with perpetrators. But, as Mahmood Mamdani observes in comments I recalled at the beginning, beyond victims and perpetrators there are also beneficiaries. We should not be simplistic about this. If perpetrators are often also in some sense victims, and if victims are apt themselves to become perpetrators (as Mamdani himself showed in later work on Rwanda),14 so too beneficiaries may be advantaged in some contexts, while being disadvantaged in others. The category of ‘beneficiary’ refers less to a particular group of people than to a particular facet of human experience. To place the question of this facet of experience at the centre of international law is to shift onto the international legal 14

M. Mamdani, When Victims Become Killers (Princeton, NJ: Princeton University Press, 2002).

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agenda issues that include, but also go well beyond, those currently subsumed under the topic of exploitation. At the same time, a more adequate engagement with the problem of exploitation would also bring out the connections between these various issues, and orient international law to a vision of the world as a structured totality. Quite obviously, exploitation is only one of many critical concepts that can be deployed to throw light on the asymmetrical distribution of advantage within countries and across the globe. Other useful concepts include social exclusion and human rights violation. Social exclusion is helpful in pointing to the forms which deprivation can take. But it does not do much to illuminate who benefits from it, nor who has responsibility for redressing the situation; the focus is on easing personal misfortune.15 Human rights do fix responsibility: the state has the obligation to respect and ensure rights. But the obligations of the state are largely exhausted by regulatory measures. Again, no one seems to profit, so no need appears to arise for systemic change; the focus is on remedying official misconduct or inadvertence. What is distinctive about the concept of exploitation is that it re-specifies deprivation, not just as a matter of personal misfortune, and not just as an instance of official misconduct or inadvertence, but as a relational, redistributive, and ultimately systemic, problem the solutions to which must themselves be similarly systemic. All this said, simply grasping exploitation can be very hard. This is especially the case in our own time, when what is in question is so often, and perhaps to a greater extent than ever before, less a matter of face-to-face relations than of long and complex chains of interaction. Exploitation today frequently involves people at distant locations, acting in ignorance of one another and through many intermediaries. How is one to “relate the activity of a dealer in a trading room in London to the poverty of street-children in the shantytown of an African city”? (Boltanski/Chiapello, 2005: 373). Boltanski and Chiapello call attention here to the difficulty. Yet, in doing so, they also exemplify its evasion: the dealer is in London, while the street-children are somewhere in ‘Africa’. Finally, then, a more adequate kind of engagement with the problem of exploitation would point up the enormity and complexity, but also the irreducible specificity, of this facet of contemporary life.

15

For this point, see L. Boltanski and E. Chiapello, The New Spirit of Capitalism, G. Elliott, trans. (London and New York: Verso, 2005), p. 354.

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Bibliography Boltanski, L./ Chiapello E. (2005). The New Spirit of Capitalism. London/New York: Verso Cohen, G.A. (1997). “The Labor Theory of Value and the Concept of Exploitation”. In Nielsen K./ Ware R. (eds.). Exploitation. Atlantic Highlands/NJ: Humanities Press Mamdani, M. (2001). “Reconciliation Without Justice”. In De Vries, H./ Weber, S. (eds.). Religion and Media. Stanford: Stanford University Press Marx, K. (1976). Capital. Vol. 1, B. Fowkes, trans. London: Penguin Reiman, J. (1997). “Exploitation, Force, and the Moral Assessment of Capitalism: Thoughts on Roemer and Cohen”. In Nielsen K./ Ware R. (eds.). Exploitation. Atlantic Highlands/NJ: Humanities Press Shaikh, A. (1997). “Exploitation”. In Nielsen K./ Ware R. (eds.). Exploitation. Atlantic Highlands/NJ: Humanities Press Unger, R. (2001). False Necessity. London: Verso Wood, A. (2004). Karl Marx. 2nd ed. London/New York: Routledge

The European External Border Regime - FRONTEX and the Mediterranean Sea Jana Rieckmann & Ali Sungur & Sophie Wulk

1

Introduction

A shifted focus of control away from the internal borders towards the external borders can be observed throughout the European Union. The abolishment of internal border control led to the concentration of all forces at the edges of the Union. Due to this intensification of the external border control many voices equalize the European Union with a fortress or a gated community. FRONTEX, the European Border Agency has been established in 2004 out of the need that was seen to tackle irregular immigration into the European Union in a joint fashion and is envisioned to ensure community border control. Consequences of its methods and approaches as well as its workings are highly debated and questionable in terms of legitimacy and legality. The question is in how far the border regime in general and FRONTEX in particular can be regarded as legal and further also legitimate when it comes to its border control missions. In order to examine this phenomenon deeper, the current situation at the EU’s southern borders will be analyzed in the first part of the paper. The second part will show how joint European border control is approached. The last part will discuss the question of legitimacy as well as legality of such actions of increased control and its methods applied. Legality here wants to underline in how far actions taken are in accordance with international law, whereas the question of legitimacy examines in how far the agency is accountable to, if not national governments then at least to the European Union institutions and thus in the end its citizens. The conclusion will provide a summary of the most crucial points of the argumentation and will provide a basis for further discussion on this topic.

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The EU’s southern external border and irregular migration

2.1

Shifting the focus of control

The increased focus on border control due to the supposed increase in irregular immigration, trafficking and terrorism is often blamed to be an effect of globalization. 1 1

Normally, instead of “irregular migrant” the term “illegal migrant” is used for migrants who enter the EU undocumented. We decided not to talk about “illegal migrants” since

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The term ‘globalization’ carries a notion of a quasi borderless world where ambits dissolve. However, Walters underlines that the actions taken in today’s globalized world indicate contrary to the expected ‘debordering’ nothing else than an actual “[…] ‘rebordering’ of the state” (Walters, 2006: 187). For him, the globalization tendency of [debordering] is being accompanied in many places by a partial rebordering in the form of enhanced policing […].Thus it might be more accurate to say that the importance of territoriality is shifting rather than simply diminishing” (Andreas, 2000: 3 in: ibid: 187). 2.2

Coming to Europe

This tendency can also be observed on European level. The Schengen Agreement for example led to the abolishment of internal border control between most Member States of the European Union. It has been realized in steps starting from 1995 onwards. A similar ‘debordering’ took place within the European Union with the completion of the internal market in 1992, which guaranteed European citizens the freedom of mobility of labor, capital, goods and services across the EU territory. The lessening of the importance of internal borders has had the consequence that the surveillance of the European Union’s external borders was increased considerably leading to an enormous ‘walling-off’ of the EU member states so that “[…] both Member States and the EU itself have increasingly adopted a technical, quasi-military approach to border control” (Spijkerboer, 2007: 127). Van Houtum and Pijpers (2006) make an analysis of the reasons for closing up from the neighbouring countries and what it is that is tried to be protected from the outside world. They see in the rebordering activities of the EU nothing but a „territorialization of wealth and potential“(ibid: 59) which serves the protection of national interests, thus the preservation of the citizens’ comfort and life style. Thus although the overall aim of the European Union is stressed to be to guarantee the well-being of people throughout the globe as it is expressed for example in the preamble of the Charter of Fundamental Rights the EU seems to guarantee those priorities primarily to its citizens with the rest of the world having to bear the consequences rather than being entitled to them equally. Although borders might always have had a selective function, Walters (2006) argues, one should still consider that there are some crucial elements that have changed in contrast to the old perception of borders as “they functioned not just as gateways into the territory, but points of arrival, reception and integration” (ibid: 198). Today, there are only perceived as purely exclusionary, as a gate that prohibits legal entry to those who are not desired. When talking about irregular migration flows, one of the first pictures that comes to mind is the migrant crossing the Mediterranean from Morocco to Spain. And it is true that “[since] the late 1980s, the Spanish-African borders, epitomized the term carries an unjustified notion of crime and thereby contributes to the common trend of criminalizing undocumented migration.

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by the narrow Strait of Gibraltar, have been a focal point of migration pressure toward Europe from the South” (Carling, 2007: 316). Still, despite the enormous media coverage of this topic spreading the news of an avalanche of illegal immigrants flooding the European Union Member States and the indeed catastrophic situation in this context, one should not forget that migrants arriving per boat on European Union territory make up no more than ten percent of the entire irregular immigration. Another issue is that generally Africans are not the majority of immigrants arriving in Spain. The main group of immigrants stems from Latin America and also increasingly from Asia and enters with forged documents (ZapataBarrero, Ricard and De Witte, Nynke, 2007: 88). Therefore, the picture created seems hysterical compared to the facts, and is just justifiable in the light of the suffering the migrants experienced. One can also question whether this scandalization is politically intended to be able to justify an increasing budget and to implement strengthened policies for (border) control. At the beginning of the 21st century, the EU decided that only unilateral approaches to migration management are no longer sufficient, as the complexity of relations at different levels, such as national, regional and continental has increased especially with Schengen and the internal market realization (ibid, 2007: 338). Borders with third countries are no longer solely national borders but also European borders (ibid: 89). In order to further strengthen these common external borders, the EU is cooperating closer with third countries and the Member States among each other; that is where the newly established agency for external border control FRONTEX comes into play which will be dealt with in the subsequent part. Before however, it can be stressed that the lack of a common foreign and security policy makes the control of the EU’s external border rather difficult. “Ironically, the absence of a common immigration policy highlights a lack of vision on political community and borders within the EU” (ibid: 90). Still, and despite missing common policies, the urgency is seen to tackle irregular immigration in a joint manner in order to increase the benefits that stem from it for all Member States. Still, it seems obvious that the actions taken remain within the realm of the legal basis of the EU. However, after getting to know more about the actions undertaken one might truly question their legality and moreover even their legitimacy. After having described the current outlook, the following part of the paper will deal more concretely with this border in terms of joint European border management. Thus, the recently established European Border Agency FRONTEX will be the focus of the following pages.

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Agency for External Border Control – FRONTEX: Libertas, Securitas, Justitia...

The slogan “Liberty, Security and Justice” is strongly emphasized on the FRONTEX homepage, which gives the impression that those are the main principles which guide its actions. Considering that names like Zeus, Hera or Poseidon

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are used for external border operations one might think that FRONTEX wishes to reflect an image of itself as valiant protector of Europe. The question remains however, in how far it can stick to those promises and in how far this is actually desired by part of the EU as reflected in its legal set up and the checks it underlies – or not. The following general overview on the FRONTEX Agency will shed light on its actions and its legal basis and will enable the reader to get a clearer picture of what FRONTEX might actually represent and what its actual ambitions are. FRONTEX was founded in 2004 as a means to manage the joint external border of the European Union. It started operating in October 2005 and is headquartered in Warshaw, Poland. It controlling irregular migration has been high on the agenda for all EU institutions2. The fact that the internal borders lost significance as control here was abolished, has led the Member States to engage in cooperating in matters of the joint external border of the EU. Cooperation was seen as an advantage for increasing efficiency. The founding of FRONTEX is also a result of the Member States’ desire for a “strong hand” to coordinate policies concerned with external border control. Originally, every Member State is responsible for its own external border. The creation of FRONTEX has at its aim to interfere in these responsibilities to foster collaboration, also including cooperation with Non-Member States, support the Member States by integrating national border security systems and moreover ensure that all members adopt coherent control mechanisms. The overall aim is thus to realize an “Integrated Border Security” as expressed on the official FRONTEX homepage which entails the following tasks: 1. “Carrying out risk analysis. 2. Coordination of operational cooperation between Member States in the field of management of external borders. 3. Assistance to Member States in the training of national border guards, including the establishment of common training standards. 4. Following up the development of research relevant for the control and surveillance of external borders. 5. Assistance to Member States in circumstances requiring increased technical and operational assistance at external borders. Providing Member States with the necessary support in organizing joint return operations” (Council Regulation (EC) No. 2007/2004, Article 2, Chapter 2). 2

See: 2001 Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration (COM/2001/0672final), three 2002 Council Action Plans on illegal immigration, border controls and return, The Hague Programme adopted by the European Council of 4/5 November 2004, The European Council of 15/16 December 2005, 2006 Commission Communication on Policy priorities in the fight against illegal immigration of third-country nationals (COM (2006) 402) (http://ec.europa.eu/justice_home/fsj/immigration/illegal/fsj_immigration_illegal_en.htm).

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Additionally, the agency is explicitly charged to coordinate and link intelligence and police services, and shall get access to a wide range of databases, among them also databases of Europol (Fischer-Lescano and Tohidipur, 2007: 4-8). 3.1

Structure

The legal basis for FRONTEX is the Council Regulation (EC) No.2007/2004 of October 26, 2004 which underlines its legality as a community body with an operational and budgetary autonomy. It is administrated by its own Management Board which is made up of two main groups: operational heads of national border guard services and representatives of the European Commission. The Board is responsible for budgetary decisions and of appointing the Executive Director and his Deputy. Majority voting is the standard voting process in the Management Board. The Executive Director however does not take part in the voting. This can be perceived as limiting his powers, yet one has to consider that on the other hand he seems fairly independent in his actions. This is also stressed in the following extracts from the Council Regulations: “The agency shall be managed by its Executive Director, who shall be completely independent in the performance of his/her duties” (Council Regulation (EC) No. 2007/2004, Article 25.1). He is only accountable to the Management Board as expressed in Article 25.4 which states “[t]he Executive Director shall be accountable for his activities to the Management Board”. What is noteworthy here is that the European Parliament has very weak control possibilities which will be further analyzed in chapter 5. The Executive Director is elaborating annually working programs. After a statement given by the Commission, it has to be approved by the Management Board. Afterwards it is transferred to the Parliament, the Council and the Commission again. Additionally, FRONTEX has to publish an annual report and, if required, report to the Parliament and Council whereby certain subjects are closed for reporting (see chapter 5). 3.2

Resources

The budget of FRONTEX is constituted of Community as well national-based contributions plus of fees charged for services provided (Council Regulation (EC) No. 2007/2004, Chapter 4, Article 29.1). It is more than noteworthy that the budget has increased tenfold in less than three years, from 6.2 million Euro in 2005 to around 70 million Euro in 2008 (FRONTEX, Amending Budget 2005-2008). It is not only the budget that is of remarkable size, also the resources available in terms of staff and equipment are more than notable, currently comprising 110 personnel, a number that is rapidly growing and being fitted with a whole array of military equipment. The equipment is not owned by FRONTEX, but provided by the Member States: 27 helicopters, 21 fixed wing aircraft, 117 vessels, and 392

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other border control equipment, including three mobile radar units, 23 vehicles, 71 thermal infrared cameras, 33 mobile carbon dioxide detector, eight heartbeat detectors, and one passive millimeter wave imager (Berglund, 2007). In this context it might be also important to consider that the standard surveillance methods range from radars and electro-optical sensors to vessel tracking systems, including various sensors and other detection systems, biometrics and electronic ID documents, etc. (FRONTEX, 2006). When reading this it seems to be a small-sized fighting force more than a simple border control unit. In sum, one can see that FRONTEX, as a relatively newly founded agency of the European Union, is increasingly holding ground in the area of external border control of the EU in an apparently quite aggressive and not necessarily legitimate manner. In this context it seems important to remind the reader about the vague control mechanism that watch over FRONTEX missions. Therefore it would be appropriate to more closely analyze some of its procedures, i.e especially the relatively free hand of the Executive Director and its access to individual data, as well as the increasing budget on the one hand with yet the lack of control by the European institutions on the other hand. The weak control possibilities by the European Parliament strongly raise the question of FRONTEX’s actual legitimacy. The control mechanisms, the checks and balances seem to be strongly defective. In the next part, a further analysis of the question of the EU border regime’s and FRONTEX’s legality and legitimacy will therefore be given.

4

Legality of the EU external border regime

Against the background of the described EU external border regime and the border agency FRONTEX serious concerns have been raised by scholars regarding the legality of the actions undertaken by the EU and Member States’ institutions to deal with irregular immigration. Among the most doubted practices are the refoulement of migrants, agreements for readmission and cooperation with third countries, and joint operations with third countries. In the following, the lack of legality of the EU external border control regime in general and FRONTEX in particular will be exposed. 4.1

Connection between Increased External Border Control and Migrant Death

In the context of increased border control, especially in the Mediterranean Sea, scholars are examining its effects on migrants trying to reach the EU territory across the sea. Thereby, research results seem to indicate that there is a correlation between increasing border control and raising death tolls of migrants at sea (Lutterbeck, 2006: 75). During the 1980s the main migrants to Spain were Moroccans, this however has changed and Morocco itself became a destination for transit migrants originat-

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ing from Africa with destination Europe (Carling, 2007: 318). “Sub-Saharan Africans now account for roughly half of the boat migrants intercepted along the Spanish coasts after departing from Morocco or Western Sahara” (ibid: 318). Out of financial shortcomings, “[…] many Sub-Saharan African transit migrants have become de facto immigrants in North Africa” (ibid: 318). All in all “[the] main arrival areas for maritime migration are the Canary Islands, the Straights of Gibraltar, Sicily, Malta, Cyprus and the Aegean Sea” (Spijkerboer, 2007: 128). Immigrants arrive in small boats, the so-called pateras. There are several problems with this type of irregular migration. Those who choose crossing the Mediterranean Sea by boat mostly do not have the financial means to pay for forged documents necessary for safer means of travel as air planes or regular ferries (ibid: 128). With the implementation of Integrated System of External Vigilance (SIVE, Span.: Sístema Integrado de Vigilancia Externa) and increased border control at the Street of Gibraltar, border-crossing became more difficult. “Since the late 1990s, Spain has invested heavily in maritime border control, and developed a model for the rest of the European Union” (Carling, 2007: 324). This model is entailing principles of early detection and central command. It is “[a] system of fixed and mobile detection devices (radars, infrared cameras, and video cameras) […]” (ibid: 325) mainly preoccupied with surveillance (ibid: 336). Within the last decade, the area covered by SIVE was constantly enlarged and now comprises large parts of the concerned Spanish coast and the Canary Islands (ibid: 325). The increased control of this passage has led to severe consequences concerning the migratory activity in that area. What has been observed is a shifting of routes across the Mediterranean in order to avoid the patrols. Choosing different paths however bears several drawbacks as “[migrants] take longer and more dangerous routes” (ibid: 327). Nowadays, boats increasingly start from the Western Sahara or even Senegal and are aiming at the Canary Islands. “[Redirecting] patera routes [also] means diverting migrants away from areas where there is an established humanitarian infrastructure to receive them” (ibid: 327). Moreover, the consequences of increased control are that the smugglers, to ensure their personal gain, increase the number of passengers and often install them at the helm of their boats in order to not get caught themselves. Knowing that the boat will be lost is an incentive to build it cheaply and to use improper material which has led to poisonous illnesses among the ‘travelers’. Besides, not having to carry fuel for the return trip gives room for even more migrants in the boat (ibid: 327). Another consequence of the reinforced controls along Italy’s coast, which has greatly increased the risks for the undocumented immigrants, is that the smugglers, in order to avoid being intercepted by the police, have started to force the migrants out of the boats before actually reaching Italy’s shores (CENSIS, 1999). This is highly problematic when considering that many of the immigrants are not capable to swim and instead simply drown (Carling, 2007: 329). The number of migrant fatalities is high, yet, “[migrants] deaths at sea are particularly difficult to quantify because the bodies are often missing” (ibid: 330). “The number of migrants found dead or known to be missing can therefore be seen as minimum estimates” (ibid:

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330). There are different numbers circulating. Following “United for Intercultural Action”, which is a “European network against nationalism, racism, fascism and in support of migrants and refugees”, the documented death rate at the entire border of the EU between 1993-2006 counts 7,182 people, but it can be assumed to be much higher in reality (Spijkerboer, 2007: 136). If a correlation between increasing border control and rising death tolls could be proven, these forms of external border control could be questioned in general. Spijkerboer (2007) raised the question of the legality of the EU external border regime and came up with the following: States cannot be held responsible for fatalities due to border control, because border control itself is legal. But they can be accused of death caused by concrete measures of border control, like shooting at illegal migrants or using landmines as in the border-zone of Turkey and Greece (ibid: 137). He is deducing his statement from the Osman-case, where the European Court of Human Rights, following Art. 2(1) of the European Convention on Human Rights, stated “that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction” (L.C.B. v United Kingdom, 23413/94; ECtHR 24 October 2002). This means that certain measures of the EU are illegal, also the so-called refoulement, which will be analyzed later on. Unfortunately, it does not tell about the legality of border control measures beyond EU territory. In general, the author states that the effects of external border control of the EU need further assessment, but the correlation with death tolls for him is proven (Spijkerboer, 2007: 138). Assessment should orientate towards increasing information to be able to determine the right migration policies. Because information on fatalities at borders is scarce, Spijkerboer (2007) demands an improvement of this situation which he regards as a precondition to assess the legality of border control in the future. Unlike the former, Carling (2007) is not too sure about a proven correlation between tightened border control and increasing death tolls. From his analysis he draws the conclusion that “it is difficult to claim that the control measures are directly responsible for the increasing number of fatalities. Apparently, the growth in the number of death results from an increased number of migration attempts, combined with a constant or slightly falling of risk of dying on the way” (ibid: 340). If one reads these differing results, Spijkerboer (2007) might at least be right regarding one thing: The necessity for further information and assessment. 4.2

Cooperation with Third Countries

The Member States are increasingly trying to combat irregular immigration through bilateral agreements with countries of origin and transit countries for the readmission of irregular migrants. Originally, countries of origin were against such agreements, because they partly rely on money which is sent back by migrants to their families (ibid: 131). So they have no interest in hindering their people to leave

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for the EU. Also the transit countries have no interest in keeping transients from reaching their destination. Nowadays, this attitude is changing because cooperation with the EU has been connected to financial aid, in the manner of an exchange: Irregular migrants and strong borders against financial and political support (Houtum/Roos Pijpers, 2006: 53). Examples are agreements between Morocco and Spain or Italy and Albania. Cooperation and agreements with third countries situated at the EU border shall help to build “buffer states” (Lutterbeck, 2006: 73) around EU territory to keep away irregular migrants. Often, migrants are sent back without even having considered their application for asylum. One problem here is that the contract partners of the EU Member States are not regarded as being safe countries before international law. That means, once they are out of EU territory, it cannot be ruled out that they will face persecution. Moreover, according to Article 16 of the International Law Commission, states are held responsible if they assist or support other countries in committing what has to be considered a crime before international law (FischerLescano/Tohidipur, 2007: 25). Assistance and support include the provision of infrastructure, technical assistance, financial means, and even political statements (Fischer-Lescano/Löhr, 2007: 19). According to this paragraph it cannot be legal neither, that EU Member States are cooperating and carrying out border patrols with third country authorities to prevent migrants from leaving the shores of third countries and to detect facilitators within these countries (FischerLescano/Tohidipur, 2007: 25). And who knows what is going to happen to the latter once detected? 4.3

Prohibition of Refoulement

A highly discussed issue of EU external border control is the prohibition of refoulement of migrants at open sea. Here, refoulement means preventing migrants’ boats, also by force, from reaching the Union by driving them off to non-European countries (Lutterbeck, 2006: 68). This is especially important for migrants from Africa trying to reach the EU across the Mediterranean Sea. Some officials defend this practice by arguing that the migrants are just being brought to the nearest harbor. Another appalling argument is that outside EU territory member states officials do not have to stick to international regulation, like the Geneva Refugee Convention (GRC) (Fischer-Lescano/Tohidipur, 2007: 19). Like the former minister of home affairs of Germany, Schilly, once explained: “[A captain] picks up people in distress. […] If there is a respective agreement with a third country the people rescued are being brought to the harbor of this third country. There will be […] an institution composed of officials of EU Member State’s asylum –agencies which examines: do the refugees have a reason following the Geneva Refugee Convention which impedes return to their home country. If not they have to go back […]

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There has to be no juridical control necessarily. We are outside of the EU’s field of law”3 (Interview Süddeutsche Zeitung, 02.08.2004). Among scholars the legality of such action is questioned. By looking at international legislation [like the GRC, Committee Against Torture (CAT), European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), European primary and secondary law] Fischer-Lescano and Löhr (2007) claim that refoulement is illegal. First, according to international law, every human being has the right to leave her or his country and it is illegal trying to impede this (ibid: 18). Second, without examining a refugee’s application for asylum, the EU member states are not allowed to send migrants to countries where their safety cannot be guaranteed. Countries are regarded as safe if the migrants do not have to fear persecution: “No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (GRC, Art. 33 I, in: ibid: 4). Besides the EU, this just applies to Norway, Iceland and Switzerland, so called “super safe countries”, and can therefore be left aside as a real option here. Therefore, refugees have to be brought to EU territory to guarantee their safety (ibid: 28). Third, access to legal means, a fair process and effective legal protection have to be assured which again leaves no real option to the EU (ibid: 25). By examining the respective paragraphs and indicating how they should be interpreted, Fischer-Lescano and Löhr (2007) show that international legislation applies both within the territory of the EU as well as outside. Within the territory also means within a 12-mile-line at sea which belongs to every country. Outside the territory means within the 12-mile-line of a third country, water not belonging to any country, or another countries territory (ibid: 4-14). Expressed simply, this means that EU officials have to stick to law wherever they are. In regard to the reasoning of the nearest harbor, the authors argue that legislation here refers to the nearest, safe harbor. This again means EU territory (Fischer-Lescano/Tohidipur, 2007: 30). The International Convention on Maritime Search and Rescue (SAR), the International Convention for the Safety of Life at Sea (SOLAS), and the United Nations Convention on the Law of the Sea of 10 December 1982, further describe how migrants at sea have to be treated by other boats coming across. In case of emergency they are obliged to provide as much aid as possible without considering a passengers nationality or status. They have to assure the provision of medical and any other help and take them to a safe location. Following the explanation above, a safe location would apparently be the territory of the EU again (FischerLescano/Löhr, 2007: 27).

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Additional Concerns about the Border Regime’s Legality

There has been considerable doubt about how operations at sea are being performed. Officially, they are declared as measures to rescue and help immigrants at sea. But “[an] inherent problem with the current functioning of the SIVE is the inconsistent approach to its humanitarian dimension. On the one hand, its lifesaving capacity is stressed by the Guardia Civil and the Ministry of the Interior. At the same time, the operative units of the Guardia Civil are neither equipped, nor staffed, nor trained for large-scale maritime rescue operations. Consequently, many of the recent drowning accidents have happened right before the eyes of the Guardia Civil, who have only been able to rescue a few of the migrants once they have fallen into the water […]” (Carling, 2007: 337). And: “[It] has been shown by the above-mentioned human rights organization APDHA […] that in 2004, the second largest number of deaths (71 out of a total of 289) has occurred at the moment of interception at sea by Spanish authorities, which suggest that such operations constitute a considerable risk for the migrants” (Lutterbeck, 2006: 69). This leads to the conclusion that the main purpose of the boats is another: “Although the authorities now use different boats, surveillance is expressly stated as being the main mission, saving lives being only secondary concern” (Spijkerboer, 2007: 135). This contradiction between the official mission, the way the operations are performed and the question of in how far Frontex is involved here is still left to (public/judicial) dispute. Following Spijkerboer, projects encouraged by the European Council “contain an approach that combines development and migration, but the short term aim of the proposal is to combat migration, while development is clearly relegated to the distant future” (ibid: 132). All in all it is clear that the control mechanisms seemed to have missed their point, and thus “failed to deter other migrants from leaving for Europe” (ibid: 131). Joint operations of FRONTEX are also problematic because the coast guards belong to different nationalities and therefore are subordinated to both international law and the law of their respective nation (Fischer-Lescano/Tohidipur, 2007: 16). Regulations of nations can differ and it is quite possible that therefore also international law is implemented differently in every Member State. Hence, migrants caught up by a joint patrol do therefore not even know which law is applied on them. In the legal framework of FRONTEX, the rights of coast guards have been extended generally. Among other issues, they have been authorized to take decisions upon whether a refugee is allowed to get into the EU territory or not. Complaints have to be addressed to the respective agencies of the Member State the guard belongs to (ibid: 17). Like mentioned above, this can hardly be in accordance with international law which determines access to legal means, a fair process and effective legal protection. Additionally it is hard to imagine that a refugee, once deported, will have the opportunity to sue against a Member State.

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Legitimacy of FRONTEX

In general, the integration of European administration comes along with a loss of influence of the Member States. This bears problems like the loss of democratic steering and the assignment of responsibility, and increases even more when agencies like FRONTEX and conjunctions of administrations are involved. The inclusion of national agencies and the nationally mixed occupation of agencies will not change this situation much. Fischer-Lescano and Tohidipur (2007) are questioning whether existing measures are sufficient to build a counterweight to the loss of control and surveillance. Besides parliamentary control, these measures include the principles of good governance in the “White Book” of the EU and legal protection. Following the “White Book”, good governance includes transparency, good administration, and data protection. In the following we will adopt the scheme which the above-mentioned authors present in their paper “Europäisches Grenzkontrollregime. Rechtsrahmen der Grenzschutzagentur FRONTEX”. Parliamentary control comes into play when considering that the border agency FRONTEX has been equipped with considerable power to enforce their mission of combating irregular immigration at the EU’s external border. These ranges from extensive access to (personal) data to close cooperation with secrete services, from high technology equipment to the authorization to coordinate operations at sea. Here, the questions of its legality and legitimacy arises when one considers that the agency is nearly no subject to parliamentary control. There are only two chances for the Parliament to get an insight into the work of FRONTEX: The agencies obligation to publish an annual report and to report to the Parliament and the Council when required. Thereby, certain topics, like the field of operations, are closed for reporting and therefore not subject to control (ibid: 33). The only control which is left to the Parliament is the control of the agency’s budget. In the case of FRONTEX this is alarming because of the direct impact it has on individuals, be it EU citizens or not. The disposal of personal data and the lack of accountability to the public even prompt Fischer-Lescano and Tohidipur (2007) to draw a line to the intelligence service of the USA, the CIA (ibid: 16). Transparency is needed to be able to control the legality of the agency’s undertakings in an effective way. Concerning FRONTEX, transparency would mean access to public documents, some kind of public relations, and that citizens have the right to receive answers to requests. In how far FRONTEX will stick to these rules is questionable if one listens to the words of the Executive Director of FRONTEX: “The best operation is the one kept secret“4 („Die Festung Europa und ihr Hausmeister“, Die andere Zeitung, 01. 11. 2006, in: ibid: 31). Also the demand for effective public relations seems unlikely for an agency dealing with intelligence issues (ibid: 31). Good administration refers to a clear structure, including hearings, the presentation of decisions, access to documents justifying a decision, compensation, 4

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and responses in the language of the applicant. Here, time will show how FRONTEX will handle these requirements. Due to its recent establishment an evaluation is not possible yet. But increasing use of technology, also in the administration, makes the handling of delicate information and personal data gain importance which leads us to the next point (ibid: 31). The use of individual data bears a contradiction between the right of data-protection and the efficiency of security policies. Thereby, the tendency towards increasing cooperation in the security sector and the mixing of intelligence and police service is hard to combine with common standards for the use of individual data. Not much seems to be left of the (German) right to determine the use of one’s own data. Not even the place where data are being saved is certain. The danger for the individual which results from non-transparent and anonymous communication within political institutions has to be counteracted. A legal framework for the use of individual data in the security sector of the EU by the Council is urgently needed. The last measure to counteract against the lack of control and surveillance of political institutions is legal protection. Legal protection is especially important when the rights of individuals are concerned. FRONTEX, unlike other agencies, does not dispose of internal control mechanisms. Besides suing, the only option left for complaints is the European Ombudsman. But the responsibility of an Ombudsman consists mainly in reporting grievances to the Parliament. Undertaking measures for legal protection in individual cases does not belong to his tasks. Additionally, she or he is just responsible for EU citizens. (ibid: 34-35) The only option left though is judicial protection. The responsible courts would be the European Court of Justice (ECJ), national courts, and the European Court of Human Rights (ECHR). Following Fischer-Lescano and Tohidipur, the ECJ could possibly make important decisions, but in how far it is responsible here is difficult to say. Also competencies of national courts are not clear. They are responsible for their own public servants, which also includes border guards working at sea operations. Officials of FRONTEX instead do explicitly fall under jurisdiction of the Union, because of the supremacy of EU law (ibid: 38). The ECHR seems an appropriate address for suits in the field of external border control, especially when violations of law outside the EU’s territory are concerned (ibid: 39). Until now, there have been no claims regarding the external border regime of the EU and FRONTEX in particular. First suits will have to be awaited to be able to draw further conclusions. For migrants who are denied access to the EU, this might indeed turn out to be difficult. Concerning the special case of data protection, only a suit by the Commission or the Member States against the Management Board of FRONTEX is feasible. The reason would be failure of control. The Management Board elects and controls FRONTEX’ Executive Director. Why can there be no individual claims? As explained above, FRONTEX is authorized to access (personal) data of other agencies and institutions. Here, the intertwining of competencies makes it hard for externals to retrace which data have been exactly taken or transferred, and where

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they have been saved. That is why an individual claim does not seem possible since it would be hard to prove who caused the misuse of data and in how far this has led to an individual damage of a person (ibid: 35). After this excursion on matters of FRONTEX legitimacy, the strongest failures of the EU external border regime are now being summarized in the conclusion and an outlook will be given.

6

Conclusion: Libertas, Securitas, Justitia?

The handling of borders has reached political priority in times where irregular immigration, human trafficking, terrorism and organized crime in general are treated daily in news coverage. The focus has shifted to the external borders of the European Union as the internal border control has been mainly abolished through the Schengen Agreement and the finalization of the internal market. Yet despite the demands of globalization to provide a sphere of rapid interaction and efficient trade, at the same time the demand for security rises as the common fear of irregular migration, terrorism and organized crime is growing. This security shall be provided through extensive border control at the external borders of the European Union. As has been shown above, there is serious concern that also in the way the EU and the Member States perform external border control they violate international law. This includes practices like the prohibition of refoulement or denying asylum seekers access to (all) legal means. The development towards increasing authority of coast guards is alarming and will worsen the refugees’ situation of legal insecurity and illegal deportation. The practices of FRONTEX can be even more questioned as the agency seems to lack legitimacy due to blurred accountability, as well as unclear check and balance mechanisms. All in all one can say that the increased control at the external borders did not lead to a decrease of migratory flows, but to a divergence to different routes which are often longer and more dangerous. What is important in terms of border control is that its actions are being made public. Keeping the actions of FRONTEX in a grey zone with limited public access severely makes this institution lacking legitimacy which it desperately needs in order to better comply with legal norms. Keeping its actions secret should no longer be the general rule. Public scandalization of circumstances is urgently necessary. As considered by Fischer-Lescano and Tohidipur, a possible step to be taken might be the need for a lawsuit by an irregular migrant at the European Court of Human Rights which has so far never been done. It would be interesting to see how the Court would decide in such a case. This might also be interesting in connection to data protection where the competencies and responsibilities are clarified neither. Against the background of a missing clear legal framework, this seems more than necessary. What is needed in general is more information and more research, first, for the purpose of effective and more humanitarian migration policies, second, to

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increase overall transparency and third, to evaluate the legality of the border regime in general. Unfortunately, the media is not of much help here and merely providing blurred pictures of what is actually going on. All in all, when really having the aim to ensure liberty, security and justice, the focus of border management must be directed towards a humanitarian dimension of saving lives instead of simple interception. So far however, it seems that FRONTEX’s slogan neither applies to irregular migrants nor to the residents of the ‘gated community’.

References Berglund, E. (2007). “Protection of EU borders”. Retrieved from the world wide web on January 18, 2008 from http://www.asd-europe.org/Objects/2/Files/ WSK%20Erik%20Berglund.pdf Carling, J. (2007). “Migration Control and Migrant Fatalities at the SpanishAfrican Borders.” International Migration Review, 41 (2), 316-343 Council of Europe (2007). Convention for the Protection of Human Rights and Fundamental Freedoms. Retrieved from the world wide web on January 15th, 2008 from: http://conventions.coe.int/treaty/en/Treaties/Html/005.htm European Commission (2004). Council Regulation 2007/2004 Establishing the Agency, Art. 25-26 Fischer-Lescano, A., Löhr, T. (2007). “Rechtsgutachten. Menschen-und flüchtlingsrechtliche Anforderungen an Maßnahmen der Grenzkontrolle auf See.” European Center for Constitutional and Human Rights (ECCHR) Fischer-Lescano, A., Tohidipur, T (2007). “Europäisches Grenzkontrollregime. Rechtsrahmen der europäischen Grenzschutzagentur FRONTEX.“ ZaöRV (4) FRONTEX (2006). No title. Retrieved from the world wide web on January 20th from: http://www.FRONTEX.europa.eu/ FRONTEX (2006). Origins. Retrieved from the world wide web on Ocotber 25, 2008 from: http://www.frontex.europa.eu/origin_and_tasks/origin/ FRONTEX (2006). FRONTEX Annual Report 2006. Warshaw. Lutterbeck, D. (2006). “Policing Migration in the Mediterranean.” Mediterranean Politics, 11(1), 59-82 Monar, J. (2007). “Justice and Home Affairs.” Journal of Common Market Studies, 45, 107-124 Süddeutsche Zeitung (2004). "Ich finde nichts Anstößiges daran, Menschen zurückzuführen". Interview with Otto Schilly, (02.08.2004), retrieved from the world wide web on January 27, 2008 from: http://www.sueddeutsche.de/deutschland/artikel/379/36343/3/ Spijkerboer, T. (2007). “The Human Costs of Border Control in European Journal of Migration and Law.” European Journal of Migration and Law, 9, 127-139 Van Houtum, H., Pijpers, R. (2006). “The European Community as a Gated Community: Between Security and Selective Access”. In Wesley, Scott (a.o.) (ed.).

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EU enlargement, region building and shifting borders of inclusion and exclusion. Ashgate 2006, 53-62 Walters, W. (2006). “Border/Control.” European Journal of Social Theory 9 (2), 187-203 Zapata-Barrero, Ricard, De Witte, Nynke (2007). “The Spanish Governance of EU borders: Normative Questions.” Mediterranean Politics, 12 (4), 85-90

Justice and Gender in the Family Anne Reichold

Introduction The family is not the classical place where justice issues are discussed. It is not, inter alia, since intra-family relations are marked by particularity, intimacy and spontaneity. Within families, individual moral obligations are adopted, for instance parental responsibilities, responsibilities out of love, or duties of care (Jeske, 1998; Rachels, 1997). These specific moral obligations applying within the family are related to familiar roles. Parental responsibilities, for instance, are related to own children but not to all children in general. Justice, however, shows a certain degree of universality and impersonality and deals with other persons anonymously in the sense that it is not guided by personal bonds or emotions. As the supreme political virtue, justice relates to representative persons and institutions. Justice designates a relation existing among all citizens, thus precisely not looking at the specific perspective of the individual, but expects of people to judge and act from a generalizable standpoint (Rawls, 1971). Tensions do exist between the universal structures of justice on the one hand and the particular and exclusive moral structures within the family bestowing a privilege on individuals on the other, resulting in the thesis that justice poses a threat to the family (Blankenhorn/Bayme/Elshtain, 1990).1 Particularly within love and marital relations, issues of justice are regarded as tokens of the decay of love (Waldron, 1993). Theories of romantic love are characterized by the desire of the loving ones to create a new entity, a "We", in which the interests and needs of the other one become genuine part of one's own interest structure (Delaney, 1996). Considerations on justice, by contrast, assume partners conceived as separate from each other, both having their own interests and solving, inter alia, issues of compensation and distribution. But yet, there are good reasons for raising the issue of justice as related to intrafamily relations and for showing that justice is a relevant moral category within familiar relations. Existing inequalities between men and women in terms of working hours, career opportunities, child care and house work raise the question as to justice between the genders. In this context, justice by all means is also a moral category mentioned in everyday language between partners within a family. Partners for instance discuss the distribution of times of child care, working hours, mutual support as to profession and career with a reference to justice. Also in the way parents deal with their children, justice constitutes an approved moral scale, 1

This position is critically discussed by Kleingeld/Anderson, 2008, 286-291.

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for instance when fair educational opportunities of siblings or even-handed attention and care towards all children are concerned. In addition, parents teach their children to fairly share among siblings. Based on these findings, efforts were made to combine justice and family in a theory of the "justice-oriented family" (Kleingeld/Anderson, 2008). According to this theory, family relations inter alia are bound to norms of justice, and it is argued that love and justice are not in a relation of constitutive tension towards each other. The justice-oriented family is characterized by (a) the self-conception as being justice-oriented, (b) the awareness that human needs may change, and thus, fair distributions need regular intra-familiar negotiation, and (c) the recognition of human limits resulting in the need of procedures promoting justice. Feminist discussions on theories of family and marriage, however, show, that injustices between the genders are deeply rooted in the theoretical concepts of family and marriage. There does not exist any other area of life, where genderspecific designations are as central as in theories of the family and the closelylinked theories of marriage. Central categories within the family are not "human being", "individual", or "person", but "man" and "woman". The term "family" replaces the older one of "wife and child"; the core of the family is formed by the marriage in which the gender distinction between man and woman takes up decisive theoretic space (Frese, 1972, 899). To date, matrimonial law includes a gender individuation of the married couple: Only man and woman can enter into marriage. Although in accordance with Article 3, Paragraph 2 of the Basic Law the gender relation is meant to be equal, gender individuation of people in the family area does not seem superfluous. The justice issue within the family, thus, is not only directed at the relation of any two loving persons, but also at the relation between man and woman. In the history of philosophy, however, precisely this issue has structurally been precluded in many theories of justice. The reason for this preclusion inter alia lies in theories of marriage and family, that is in the theoretical concept of the gender relation. When looking at theories of family and marriage during the history of philosophy, not only gender distinctions become apparent but clear hierarchizations of men and women. Gender relation is not an equal juxtaposition but a relation of the man dominating the woman. Distinctions between men and women in theories of family often serve the purpose of super- and subordination. In "The Subjection of Women", Mill stresses that the man himself even if he wants so has no chance to renounce the power implied in the marriage contract (Mill/Mill/Taylor, 1981). Hierarchization is continued in the history of philosophy in a subordination of the family under the political community or the state. Theories of family and marriage, thus, are not only opposing theories of justice in the political field; in the history of philosophy, they often rather form a foundation, a basis or prerequisite for political theories and theories of equal rights of the citizens. The family is conceived as the nucleus of society, as the place where children are engendered, cared for and educated, and where social relations are learned which already mint the ideas of the political individual. The hierarchically-designed areas of life of the

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family and marriage found and establish the political community although they themselves are situated in a pre-political, private sphere. Therefore, the thesis has been advocated in the feminist discussion that political theories of equality and justice and the conceived notions of the individual and the person are structurally bound to relations of patriarchal domination of men over women within families (Pateman, 1988). Against this setting, notions of equality and justice, as well as of the individual or the person, cannot easily be credited a critical potential for discussing the gender relation. From this perspective, both family and justice are concepts with a long unjust tradition. How then, may the question as to the justice between the genders within the family, which appears so essential, be raised at all? Feminist philosophy gives various answers to this question, some of which I would like to introduce and discuss in the following. This will render clear that the issue of justice within the family requires sui generis a reflection of the gender distinction and of the relation between the genders. Theories of marriage and family assume a natural gender hierarchy within the family which from the justice standpoint is problematic. A central issue in this context is how the gender relation within the family can be conceived in a non-hierarchical manner. A de-hierarchization of the gender relation within the family, however, justifies the use of the term of justice in feminist contexts in the first place. Only if there does not exist any structural dependence between theories of justice on the one hand and a hierarchical gender relation on the other, notions of equality and justice can develop a critical potential as to the gender distinction at all.

1

Justice Depending on Hierarchical Family Structures

In the following, I would first like to exemplify how theories of justice build on hierarchical theories of the family and, thus, at least display a tendency towards gender injustice. Are the gender distinctions and the super-ordination of the man over the woman a historical-contingent fact in the history of philosophy, so that the argumentative contents, the political concepts and theories of the family remain untouched? Or are the argumentation structures and concepts themselves structurally bound to a gender hierarchy? 1.1

Aristotle: Justice and Gender Hierarchy

In his "Politics" Aristotle founds justice in hierarchical family structures and in particular in a patriarchal relation between men and women. He begins with an investigation of the natural foundation of the state: the reproduction relation between man and woman and the relation of domination. "The first coupling together of persons than to which necessity gives rise is that between those who are unable to exist without one another, namely the union of female and male for the continuance of the species (and this is not of deliberate purpose, but with man as with

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the other animals and with plants there is a natural instinct to desire to leave behind one another being of the same sort as oneself), and the union of natural ruler and natural subject for the sake of security […]." (Aristotle, Politics 1252a). Aristotle renders unmistakably clear that there is a clear hierarchy in the gender relation: "Also, as between the sexes, the male is by nature superior and the female inferior, the male ruler and the female subject." (Aristotle, Politics 1254b). Aristotle also justifies the relations of rule between freemen and slaves, as well as between men and children. These three hierarchical relations: husband-wife, master-slave, father-children form an extra- or pre-political area, the oikos, forming in accordance with Aristotle both the material and the conceptual foundation of the state and the free citizen. While Aristotle extensively justifies and distinguishes slavery in politics, subordination of the woman under the man does not seem to be a moral problem for Aristotle, for it is considered natural and is not further substantiated.2 The notions of law, justice and equality develop only against the "natural" setting of the hierarchically structured oikos. The political realm itself, however, with Aristotle is not structured by relations of rule but by equality and freedom. It is the realm of politics in which the human being can lead a good life in the full sense and in which he can understand himself as a moral person. "Justice […] is an element of the state; for judicial procedure, which means the decision of what is just, is the regulation of the political partnership." (Aristotle, Politics 1253a). For Aristotle, only freemen – that is masters of an oikos, who must not work themselves are free for politics. Justice as virtue is not relating to every human being, but exclusively to other citizens in the field of politics: that is freemen. Frame of reference of justice is the field of "political justice. This is found among men who share their life with a view to self-sufficiency, men who are free and either proportionately or arithmetically equal, so that between those who do not fulfill this condition there is no political justice [...]." (Aristotle, The Nicomachean Ethics, V, 1134a). Both, the notion of justice and that of the human being with a view to the foundation of the political in the hierarchical oikos, here, proves to be particular and exclusive. The more free citizens do not dedicate themselves to work, the dire the necessity to integrate slaves. The political realm of the polis is dependent on a reproducing, working realm, forming the natural foundation of the political. For the Aristotelian concept of justice in which some structures of universalist argumentation are preformed, asymmetric relations of rule are constituent. Brunkhorst describes the relation between polis and oikos as one of center and periphery: the center is the field of political equality and justice, free of rule. Only in this central field of the political the notion of justice has its place, and it is here where it creates the – to date – influential links to the notion of equality and virtue relating to others. However, equality becomes feasible only through a periphery where neither equality nor justice exist or might be made a subject of discussion at all. Rule is 2

As to the interpretation of the relationship between women and men with Aristotle, see also Elshtain, 1993; 41-54.

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externalized to the societal periphery (Brunkhorst, 2000; 56). Gender hierarchy and justice do by no means preclude each other; on the contrary, they depend on each other. There can be freedom of the citizen only against the setting of a reproductive field of the oikos, in which, however, issues of justice and political right do not rise due to the natural hierarchies. 1.2

Martha Nussbaum: Justice and Gender in Liberalist Political Theory

Is it then possible to separate the notion of justice from its hierarchical periphery? Political philosophy, inter alia in liberal social contract theories has conceived a version of equality and justice no longer requiring a field of rule as natural foundation in the Aristotelian form. In the liberal tradition, relations among political subjects are based on contracts voluntarily concluded. Feminist discussion, however, is controversial as to whether in liberal social contract theories gender injustices can be avoided or made a subject of discussion. Can a universal use of the notions "individual" and "justice" criticize existing gender injustices and, thus, extend equality to both sexes? Or are hierarchical gender relations also underlying social contract theories, so that a universal standard cannot be met? According to Martha Nussbaum, the notions of equality, justice and the individual in the liberalist political philosophy receive universal argumentative strength. The gender injustice in these theories can at least in principle be repealed. According to Nussbaum, the goal is to formulate a gender-independent concept of justice. "In an important sense, the views expressed in this volume are not really about women at all but about human beings and about women seen as fully human. [...]. But no theory of justice could plausibly call itself such if it did select out one group for favorable treatment on the basis of a contingency of birth. This, then, is a theory of human justice, and of feminism as a humanism." (Nussbaum, 1999a; 9). Nussbaum, here, claims full humanity for all humans, regardless of their sex. She turns the notions of equality and justice against the conceiving political theories themselves and underlines that these notions have a universalistic meaning that – in particular with regard to the genders – does not take an adequate effect in many political theories (including that of Rawls for instance). At the theoretical level, Nussbaum here perfects liberalism as to its claims by liberating it from the factual misogyny which has never been substantiated by theory. This way, the liberalist political theory wants to render itself profitable for the issue of women's rights. Sex, defined by Nussbaum exclusively in the sense of a natural contingency given by birth, in the interest of gender justice should particularly be irrelevant. Like racial differences, gender differences belong behind the veil of ignorance. "The version of liberalism here begins from the idea of equal concern and respect: [...]. The crucial addition liberal feminism makes to the tradition is to add sex to that list of morally irrelevant characteristics. It should have been there all along, for no liberal thinker ever presented a cogent argument to justify the subordination of women to men while opposing feudalism and monarchy.

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Subordination by sex was simply seen as natural, and the entire subject was basically ignored in theories of political justice." (Nussbaum; 1999a; 10) In this sense, it is precisely a focus on the sex, a description of a human being as man or woman, which must be avoided for the discussion on justice. Nussbaum regards problems of injustice between the genders as a profound empirical issue which in principle can be made a subject of discussion by the universalist means of her capability approach. Nussbaum also defends the universalistic aspiration of the liberal, atomist concept of the individual. Feminist criticism can take advantage particularly of this concept for it assists in criticizing attribution of characteristics and behavior like for instance: women do live more in relations and care for others than men. Following MacKinnon, Nussbaum interprets the being in relationship (with somebody/others) which is attributed to women also in feminism, in part as moral peculiarity, as the result of oppression. The disposition to care for others – in particular children and ancients – and to think in relationships is not a natural characteristic of women but in part the result of the factual oppression and power conditions. MacKinnon argues that inequality comes before difference. "From women's point of view, gender is more an inequality of power than a differentiation that is accurate or inaccurate. […] Inequality comes first; difference comes after. Inequality is material and substantive and identifies a disparity; difference is ideational and abstract and falsely symmetrical. If this is so, a discourse and a law of gender that center on difference serve as ideology to neutralize, rationalize, and cover disparities of power, even as they appear to criticize or problematize them." (MacKinnon, 1989; 218/219) Emotions and needs, especially from the feminist perspective, must not be acquiesced as natural constants, but they are political in the sense that they mirror existing hierarchies and attributed distributions of tasks. Nussbaum stresses that even at the fundamental level of physical health and nutrition an objective need for strength cannot be assumed. Women knowing nothing else than malnutrition do not necessarily develop an appropriate need for food. "Especially if they have been told that women are weaker than men, they may not be able to form a desire for the health and strength of which they are capable. The absence of such a desire should not convince policymakers that health and strength are not important goals to be promoted for these people." (Nussbaum, 1999a; 11f. ) This is the point where Nussbaum's capability approach applies, which determines a list of basic goods that need to be available to all humans so that they can lead a human life (Nussbaum, 1999b). That which is good for a human is not determined exclusively from the subjective perspective of the individual, which – in particular when living in unjust conditions – is far from being able to feel or express adequate needs and desires. For Nussbaum, hence, the basis of justice is the objective list of basic goods. Here Nussbaum links the political considerations on justice to a universalistic anthropology. Also with a view to marriage and family Nussbaum argues in favor of a genderneutral definition. Neither marriage nor having or raising children are bound to a

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heterosexual partnership. "Gays and lesbians have and raise children." (Nussbaum, 1999a; 204). The family based on a heterosexual relationship in terms of fairness can even learn a lot from same-gender couples since here for instance household chores are distributed more fairly (Nussbaum, 1999a; 202). These few remarks indicate that injustices within the family have to do with the sex of the partners but leave open why this is so and how a heterosexual family could be just. Nussbaum's focus on marriage is directed towards the issue of homosexual rights; it criticizes the political injustice of privileging by law the heterosexual family. 1.3

Carol Pateman: Social Contract Theories and Patriarchal Domination

In feminist political philosophy it has been argued against universalistic liberal theories that the notion of the human or the individual in the political field cannot be conceived in a gender-neutral way. This criticism combines with a criticism of contractarianism. Is it gender-neutral to think of the origin of society and the state as lying in a contract? Carol Pateman argues that contracts are based on an extrapolitical "natural foundation" which in the social contract theories themselves is often simply presupposed (Pateman, 1988; 189). A contract claims to be concluded among free individuals whose substantial attributes are (seemingly) left out of consideration (for instance whether it involves men or women). Social contract theoreticians here often begin after physical creation and human development. They start with a concept of the individual already endowed with certain characteristics, as for instance the knowledge of the significance of faithfulness and trust as the fundamental condition for concluding contracts. "[…] most of the pictures of the state of nature contain the non-contractual conditions necessary for infants to thrive and grow; love, trust and the family life are assumed to be found naturally." (Pateman, 1988; 182) One problem of social contract theories therefore is, that they do not justify themselves. The contract has a place in social life, but cannot found it. Any example of social contracts proceeds from the assumption that contracts must be complied with. Trust and mutual faithfulness are presupposed. Individuals understand what it means to conclude a contract only since each contract is an element of the broad practice of concluding contracts. At this point, a significant link between the realm of the political and that of the family becomes apparent. Social contract theory is dependent on relations among humans being not contract-like. As soon as in the social contract theory forms of relations like trust or faithfulness are presupposed, it must face questions as to where and how individuals experience these or have learned them; and here again, it is the realm of the family which supports the social contract theory. The question as to the political justice between the sexes, thus, in structural terms leads to the question as to the relation between the sexes within the family. The political discussion about the social contract theory continues as the question as to how family structures are to be described and justified. What is the foundation of the bonds resulting inter alia in the long-term upbringing of children and providing the framework within which humans learn trust and faithfulness as the

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prerequisite of social contract thinking? Can marriage itself be conceived as social contract and, thus, the political form of justice be transferred to the private realm of the family? Pateman's central thesis, now, is: "The original contract is not merely a social contract; it is a sexual contract which constitutes men's patriarchal right over women." (Pateman, 1988; 178) For illustrating this position, Pateman takes recourse to Hegel's theory of the family and his criticism of the Kantian contractarian theory of marriage.3 According to Kant, marriage is "the union of two persons of different sexes for lifelong possession of each other's sexual attributes." (Kant, 1996, § 24; 62) Marriage is a voluntarily concluded contract involving rights and duties. Kant creates the category for marriage "on Rights to Persons Akin to Rights to Things". He elucidates this as the right "of possession of an external object as a thing and use it as a person." (Kant, 1996, § 22; 61). In the marriage contract, an individual receives the right of a person who this way becomes a thing. But since both contractual partners become a thing and each one the possession of the other, both regain their status as rational persons. They make use of each other not as things, but as persons. According to Pateman, Kant's view of marriage is a good example of the simultaneous rejection and affirmation of the thesis, that women are "individuals" or "persons". On the one hand, everybody due to his/her being human has common sense and thus the capability to act in line with universal moral principles. On the other, this capability is differentiated as to the sexes. Women are lacking civic and political reason. Women are passive citizens only, lacking the capability of vocalization, since "all women and, in general, anyone whose preservation in existence (his being fed and protected) depends not on his management of his own business but on arrangements made by another (except the state). All these people lack civil personality and their existence is, as it where, only inherence." (Kant, 1996, § 46; 92). Hegel conceives Kant's underlining the sexual function within marriage as rude reduction. He contra-poses Kant's contractarian theory by a concept of marriage as a relationship of transformation and appreciation. To regard spouses as possession means to misunderstand completely marriage and its position in modern society. As a contract, marriage is open to the volatile, the unpredictable. For Hegel, by contrast, marriage is the definite shape of moral life, constituted by a principle of union which is far from being a contract. "For the precise nature of marriage is to begin from the point of view of contract – i.e. that of individual personality as a self-sufficient unit – in order to supersede it [ihn aufzuheben]". (Hegel, 2008; § 163) In contrast to Kant, where persons are left untouched by marriage, the marriage contract for Hegel changes awareness and status of man and woman. They stop being autonomous individuals. They become one person. "[...] its objective origin is the free consent of the persons concerned, and in particular their consent 3

Frese labels Hegel's criticism of an allegedly contractarian theory of marriage as a misunderstanding. C. f. Frese, 1972; 899. Whether Kant's reception by Hegel – and here by Pateman – is correct or not, shall not be discussed here.

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to constitute a single person and to give up their natural and individual personalities within this union." (Hegel, 2008; § 162) Marriage is not an external agreement on a mutual exchange of wealth but an internal union. Marriage is not aimed at the mutual use of sexual characteristics; sexual desire is only part of the marriage. The union is accomplished by "legal-ethical love" transcending the volatility of romantic love. (Addendum to 161) To Hegel, marriage is an ethical obligation. "Marriage [...] is one of the absolute principles on which the ethical life of a community is based;" (Hegel, 2008; § 167). Ethical life depends on marriage since marriage is the origin of the family. Although Hegel criticizes Kant's marriage contract, he adopts gender-specific statements into his understanding of manliness and womanliness, which he justifies by referring to "nature". He assumes a natural vocation of the sexes which he justifies in his theory of the family as reasonable: "the natural determinacy of the two sexes acquires an intellectual and ethical significance by virtue of its rationality." (Hegel, 2008; §165) The family in public is represented by the man. "Man therefore has its actual substantial life in the state, in learning [Wissenschaft], etc., […] so that it is only through his division that he fights his way to self-sufficient unity with himself. In the family, he has a peaceful intuition of this unity, and an emotive [empfindend] and subjective ethical life. Woman, however, has her substantial vocation [Bestimmung] in the family, and her ethical disposition consists in this [family] piety." (Hegel, 2008; §166) Here, Pateman argues that the dialectic of recognition performed by husband and wife is not a fight following the pattern of master and slave. These are all men and can transcend the fight in the recognition as self-conscious subjects in the philosophy of law. Women are standing outside this fight, but are part of the civil society. Men's self-consciousness is not only the awareness of free, civil equals, it also is the awareness of patriarchal masters. Family and state this way are separated and inseparable at the same time. According to Pateman, the Hegelian argumentation shows the dilemma of the political notions of equality, individual and contract; they require a foundation in a pre-political realm of the family which in its turn cannot be conceived in a social contract-theoretical manner. Thereby they are structurally bound to a hierarchically conceived sexual contract. Feminist theories intending to render marriage more just through social contract-theoretical elements, thus, structurally run astray. Just as Nussbaum tried to transfer equality and universality from the political to the private field of the family, Pateman points to the subliminal hierarchy also in apparently universal political concepts of contract, the individual and of justice. Any reference to the individuals of a contract is backed-up by the reference to hierarchically organized family structures. The egalitarian contract between free individuals, thus, is structurally undermined by gender hierarchies thought of as being natural, which from the standpoint of the contract do not come into sight. This way, however, also the contract thinking contrary to one's own aspiration is no longer gender-neutral.

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Pateman's argumentation, then, well shows structural parallels between contractual thinking's depending on a hierarchical sexual contract in the family, and the Aristotelian foundation of politics in a hierarchical field of oikos. Feminist reflections on marriage and family are not a contingent section of a study on justice, but, due to the tradition of political philosophy being bound to the realm of the family and its master, the breeding ground presupposed as "natural" and extrapolitical. That which is so obviously hierarchical also shows in the link between political thinking and marriage and family theories of modern political philosophy. A universalistic interpretation of the notions "human", "citizen" and "individual" from the feminist perspective does solve the issue of justice as related to the genders only, if these notions also suffice for analyzing family structures and gender relations, since otherwise concealment of gender hierarchies by universalistic terms – as highlighted by Pateman – can go unnoticed.

2

Family Beyond Gender Distinction

Why are gender distinctions central to family theories, no matter whether they are conceived hierarchically or in an egalitarian manner? One decisive factor within marriage and family theories, here, are sexuality and reproduction. This is exemplified in the Aristotelian accentuation of the natural community of man and woman for the purpose of reproduction, in the marriage theory of Kant, but also in the reasoning around same-sex marriage. Theories of marriage are a core of the theory of family, since they do not exclusively concern the relations between two individuals – as is for instance the case in theories of friendship – but since the relation does not remain confined to both partners, but bears the potential of producing, integrating, and bringing up children. In this linking of partnership and reproduction lies a key reason for the basic role marriage plays for family and society. Here the history of philosophy shows a structural link between marriage and family on the one side and sexuality and reproduction on the other. It is exactly these links which render necessary a gender individuation of the partners, then resulting in the hierarchical structures described. In the following, I would like to discuss two theories on the re-conceptualization of the family in which family and marriage structures are tackled especially by referring to justice of sexuality and reproduction. These theories illustrate in particular how the familiar relation of care-taking can be conceived without an orientation to gender differentiation. 2.1

Iris Marion Young: Family Independent of Sexuality and Reproduction

Iris Marion Young advocates the thesis that the legal privileging of marriage is unjust not only with a view to the internally conceived gender relation but also regarding the exclusions it produces. Single mothers or fathers, gay couples or handicapped persons live in structures not profiting from the legal advantages of marriage. Since marriage in essence fulfils a function of legitimization in the fields

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of sexuality, parenthood and property, other forms of living are disqualified as illegitimate or deficient. According to Young, the institution of marriage is "fundamentally unjust" (Young, 1997) and should be abolished. She drafts a theory of the family by introducing a fundamental separation between family and sexuality.4 "Sex is neither a necessary nor a sufficient condition for families." (Young, 1997; 109). This eliminates the patriarchal idea of man having sexual rights over woman just as the linking of parenthood to biological motherhood or fatherhood, or of the ideas of care-taking and life-long responsibility to concepts of sexual love. Young defines a family "as people who live together and/or share resources necessary to the means of life and comfort; who are committed to taking care of one another's physical and emotional needs to the best of their ability; who conceive themselves in a relatively long-term, if not permanent, relationship; and who recognize themselves as a family." (Young, 1997; 106) Decoupling the family from structures of sexuality means that also siblings, female friends or single parents with children can be legally full-value families if they decide so. The proposal shows that structures of reproduction must not necessarily be bound to those of child education; and care-taking not to sexuality and natural parenthood. But a specific form of love is not talked about here, either.5 Young does not deny that romantic love is different from the love among siblings or that of friendship. But she claims that the specific familiar commitments for reasons of justice should not be derived from a privileged form of love. The commitment to a long-run care-taking for others is no longer ascribed to an underlying form of romantic or sexual love between sexually individuated partners but results from the self-conception and the consent to family structures. The hierarchical gender contract criticized by Pateman in concepts of marriage and family is destroyed by the removal of sexuality from concepts of the family. Sexuality is entirely private, it is not required for the consummation of marriage and in particular, there do not exist any rights of sexuality in the family. According to Young, the gender hierarchy results from linking marriage and family to sexuality and reproduction. According to this theory, classical heterosexual families with children continue to exist, but they are no longer legally privileged as they were previously. It is a political question which other, more just ways to support families with children can be conceived, and marriage in its current form is certainly not the best way to do so. In her argumentation, Young presupposes that child-rearing and care-taking are not bound to specific forms of sexuality, reproduction and love. Classical gender roles and stereotypes describing women as caring, nourishing and supporting lose their foundation by decoupling family relations from sexuality and reproduction.

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Moreover, Young criticizes an exclusively distributive understanding of justice which can poorly grasp familiar and gender-specific issues of sexuality or custody. (Young, 1997) As to romantic love, see: Neil Delaney: Romantic Love and Loving Commitment: Articulating a Modern Ideal. In: Honneth: Von Person zu Person [From person to person]. 105-140. Roger Scruton: Sexual Desire. New York 1986

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Here, however, the question rises, how then family bonds with their responsibilities can be explained and motivated. Why do people enter family relations committing themselves inter alia to long-term relationships of care? The above definition of the family suggests that it is a voluntary union. This element of Young's theory reminds of social contract-theoretical considerations on voluntary agreement. Young for the purpose of justice argues in favor of legally decoupling the family from sexuality and reproduction and of an equal legal recognition of all types of family mentioned. She does not explain of which kind family relations are, as for instance care-taking. 2.2

Juliet Mitchell: Sisters Instead of Mothers

Like Young, Juliet Mitchell stresses the increase in justice theories of the family bring about by decoupling them from theories of reproduction. Her psycho-analytical focus is directed at the relation of care-taking which in many theories is paradigmatically conceived in the relation of the mother to a child. This way, care-taking appears as a relation primarily befitting women, and in fact women as mothers. Both, womanhood and care-taking itself are, thus, conceived vertically in their relation to children. But what about the many women not having and not intending to have children? According to Mitchell, feminism so far has almost exclusively concentrated on the vertical relations of reproduction, i.e. motherhood, in determining what a woman is. The current demographic change towards families without children, women who are not mothers, by contrast brings horizontal relations of women as sisters to the fore. It is not primarily motherhood in which women learn social relations of care-taking, but it is the horizontal relation of sisterhood in which a social identity is developed. Care-taking is not bound to motherhood. "We think of mothers as all important caretakers, forgetting that they were sisters first." (Mitchell, 2007; 181) Mitchell argues that care-taking is a relation towards others which every child involuntarily must learn in sibling relations and which at the same time is the foundation of sociality of every human being. The decisive paradigm, here, is not the vertical care-taking by a mother of her child but the horizontal care-taking by the child of siblings. Like Young, Mitchell decouples the relation of care-taking from the relation of reproduction, opening it for both sexes this way. From the psychoanalytical perspective she argues that Child/Child-caring, that is the care-taking of peers and siblings, is primary to the care-taking as a mother of the children. It is not the vertical, generation-spanning relation of reproduction which is underlying care-taking, but the horizontal sibling relation. Mitchell, here, completely decouples gender identity from a sexual identity. She relocates an important point in time of gender formation to early childhood, when the sexual identity barely plays a role, yet. It is not the question whether you are a mother or a father that forms the social individual, but the question of how the relations to peers and siblings look like. "My argument is that these lateral

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gender groups, as distinct from the sexual difference derogated from maternity and paternity, are, like the latter, set up in earliest childhood, through differentiation of siblings, peers, school-children." (Mitchell, 2007; 173f.) This illustrates that the horizontal relation of care-taking not only is about relations among siblings, but also relations to peers. Classical psycho-analysis, however, remains in the vertical paradigm of reproduction, as is clearly demonstrated by the theory and narrative of the Oedipus complex. The drama takes place among son, mother and father. Mitchell points out that a newborn does not only develop his/her identity in conflict with the parents, but also in relations with siblings and peers. "I suggest that there is both oedipal reproductive sexuality […] and lateral non-reproductive sexuality with its own prohibitions and permissions which produces non-sexual sisterhood and brotherhood, or sexual but non-reproductive partnership, same gender or not the same gender;" (Mitchell, 2007; 177). Gender formation, here, is conceived as being independent of sexuality or reproduction. Mitchell psycho-analytically describes the transformation of a little child expecting or getting a sibling baby as "rite de passage". (Mitchell, 2007; 179). The arrival of a new baby is a trauma for the elder child no matter how well ever it copes with this transition. "Yesterday's baby is baby no longer – she must become girl or boy, sister or brother." (Mitchell, 2007; 179). This transformation, "the replication of oneself who has to become other than oneself" turns a child into a social being. It recognizes that there exist others like itself. "Toddlers are being pushed out of babyhood into caretaking childhood by helping to socialize the new baby. Looking laterally, socialisation is, among other concerns, in itself about caretaking – by both genders." (Mitchell, 2007; 181f.) This question as to a theory of the family in which relations of justice can be thematized, this relation of "Child/Child-care" is interesting for several reasons. Against the backdrop of the controversy described above about contractarian theories of marriage or theories of recognition, Mitchells concept of sisterhood marks a third alternative: sisterhood constitutes a transformative, involuntary, traumatic kind of relation underlying the active social individual. The elder child is expelled by a sibling from its native place as asocial being and finds another than itself at the place of the baby. This being expelled is a trauma from the adaptation to which the child emerges transformed. The conflict with the sibling baby does not as with Hegel result in sublation of the person and in becoming one. The children instead remain separated individuals related to each other. Relatedness to a sibling child is not a voluntary choice to one's own advantage that could be reversed in case of need, but it is a traumatic challenge the child cannot escape. The relation to the sibling child forms the identity of the individual in such a decisive way, that the entire social identity is marked by the structures of horizontal relations with others. By detaching the sibling relation from clear gender attributions, moreover, a naturalization of gender differences is avoided. Both, boys and girls are in the relations of being siblings and the sociality of both is based on relations of care-taking, the Child/Child-care.

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Starting Point for Justice Within the Family

Which potential for issues of justice within the family are then opened by theories of the family getting along without a central reference to reproduction? Mitchell herself views a link between the theory of sisterhood and justice: "lateral, horizontal relations… have egalitarian possibilities in a way that vertical relationships do not." (Mitchell, 2007; 184). Equality, brotherhood and sisterhood against this backdrop can be related to both sexes, without exposing themselves to the issues of universalistic notions of social contract theories: it is not a hierarchical family structure that is behind the only apparently gender-neutral notion of the individual, but it is a theory of sisterhood in which gender is conceived as independent of reproduction. "It is this potentiality for equality that inspires the sisterhood of feminism, as it inspires feminism's aim: equality of sisters with brothers." (Mitchell, 2007; 184) In this context, she criticizes Pateman who sees patriarchal structures here everywhere. Pateman's thesis refers to the familiar paradigm of reproduction, not to the sisterly one of care-taking. Sisterhood is neither an anonymous contractual relation, nor a patriarchal gender relation, but a kinship relation of both sexes in which elements of involuntariness and of the trauma are combined with elements of care-taking, competence, of activity and individuality. Here already lie decisive differences to the social contract theory. The sibling relation is not voluntarily chosen, but the child is confronted with the requirement of the relation to a sibling or peers. The notion of the individual, here, is not conceived atomistically but as a sibling he/she is in horizontal relationships. Here, the child learns that which in social contract theories remains mere assumption: caretaking, relatedness to others not springing from a voluntary choice but transforming the individual itself to become a social being, capable of entering relations. Do these concepts help as to the concrete issue of justice between the genders/sexes in the family? They help insofar as they destroy role attributions and gender stereotypes based on the biological sex and in particular question the classical attribution of care-taking and child-rearing to women. They hence distinguish between sex and gender in such a way that the biological sex does not permit any statements on positions, roles or tasks within the family. That which in the political field is conceived in liberal theories, namely the gender-neutral attribution of rights and duties, becomes thinkable in the realm of the family on another foundation. Care-taking as fundamental category of family and child-rearing in the concepts of Mitchell and Young is open to both sexes. A reference to the biological sex of the individuals of a family, thus, does not receive any essential function. This way, the attribution of natural differences between the genders as to care-taking and childrearing is questioned. By decoupling the relation of care-taking from reproduction, care-taking opens itself to both sexes, so that on this basis family theories can become plausible the gender individuations of which do not simultaneously imply attribution of a specific position within the family structure.

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At the same time, family subjects in this context are not conceived as political individuals or persons, but as persons raised and stamped within the sibling relation and among peers, who have learned to take care for others in these relations and have undergone an involuntary process of inner transformation to become a social individual. So the social contract-theoretical question does not arise whether it is in our interest to care for others, but we take care – and this is a basis for the family and political life. The sibling relation, hence, develops equality between the genders that can also form the basis for considerations on justice. Concepts of romantic love or sexuality are not replaced or masterminded by the sibling relation; they are, however, regarded as being secondary in view of the relations of caretaking within the family and the ensuing issues of justice. They do not form the basis for care-taking and the ability to be a subject within a family. This form of denaturalization of gender stereotypes in the fields of family, child-rearing and sexuality is an essential subarea in terms of justice between the genders within the family. This does of course not mean that gender issues within the family have been settled. In particular, the question is whether a sharp separation of reproduction and family is not based on an implausible separation of biological features (sex) and social attributions (gender). Referring to Foucault, Butler has argued that biological categories of the body, too, are historical and social categories (Butler, 1993). Not just gender assignments are normative, but also physical ones. A strict separation of sexuality and gender introduces a separation of body and spirit which in parts is implausible with a view to gender assignments and the family life. Sexual relations, pregnancy and birth are not biological processes which are preceding or exempted from social communication. Even if they do not form the basis for theories of family, marriage or gender assignment, they remain central, intersubjective relations referring to which questions of justice may be raised.

Bibliography Aristotle (1995). The Nicomachean Ethics. Transl. by William David Ross/ J. L. Ackrill/J. O. Urmson Oxford: Clarendon Press Aristotle (2005). Politics. J. Henderson (ed). The Loeb Classical Library, Aristotle XXI, transl. by H. Rackham. Cambridge/London: Harvard University Press Blankenhorn, David; Bayme, Steven; Elshtain, Jean B. (ed) (1990). Rebuilding the Nest. A New Commitment to the American Family. Milwaukee, WI: Family Service Association Brunkhorst, Hauke (2000). Einführung in die Geschichte politischer Ideen. München: Fink Verlag Butler, Judith (1993). Bodies that Matter. New York: Routledge Delaney, Neil (1996). "Romantic Love and Loving Commitment. Articulating a Modern Ideal." American Philosophical Quaterly, 33 (4), 339-356

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Elshtain, Jean B. (1993). Public Man, Private Woman. Princeton: Princeton University Press Frese, Jürgen (1972). "Familie, Ehe". In Joachim Ritter (ed). Historisches Wörterbuch der Philosophie, 2, 898-901 Hegel, Georg W.F. (2008). Elements of the Philosophy of Right. Transl. by H.B. Nisbet. 13th printing. Cambridge: Cambridge University Press Jeske, Diana (1998). "Families, Friends and Special Obligations." Canadian Journal of Philosophy, 28 (4), 527-556 Kant, Immanuel (1996). The Metaphysics of Morals. Transl. by M. Gregor. Cambridge: Cambridge University Press Kleingeld, Pauline; Anderson, Joel (2008). "Die gerechtigkeitsorientierte Familie: Jenseits der Spannung zwischen Liebe und Gerechtigkeit." In Axel Honneth, Beate Rössler (ed). Von Person zu Person. Zur Moralität persönlicher Beziehungen. Frankfurt am Main: Suhrkamp, 283-312 MacKinnon, Catherine A. (1989). “Sex Equality: On Difference and Dominance.” In Catherine MacKinnon. Toward a Feminist Theory of the State. Cambridge, London: Harvard University Press Mill, John S. (1981). The Subjection of Women. Cambridge: MIT Press (7. print.) Mitchell, Juliet (2007) "Procreative mothers (sexual difference) and child-free sisters (gender)." In Jude Browne (ed). The Future of Gender. Cambridge: Cambridge University Press, 163-188 Nussbaum, Martha C. (1999a). Sex & Social Justice. Oxford: Oxford University Press Nussbaum, Martha C. (1999b). "Menschliche Fähigkeiten, Weibliche Menschen." In Martha Nussbaum. Gerechtigkeit und das gute Leben. Frankfurt am Main: Suhrkamp, 176-226 Pateman, Carol (1988). "Feminism and the Marriage Contract." In Carol Pateman. The Sexual Contract. New York: Polity Press Rachels, James (1997). "Morality, Parents and Children." In Hugh Lafollette (ed.). Ethics in Practice. An Anthology. Oxford: Blackwell, 195-206 Rawls, John (1971). A Theory of Justice. Cambridge: Harvard University Press Waldron, Jeremy (1993). "When Justice replaces Affection: The Need for Rights." In Jeremy Waldron (ed). Liberal Rights: Collected Papers 1981-1991. Cambridge: Cambridge University Press, 370-391 Young, Iris M. (1997). "Reflections on Families in the Age of Murphy Brown." In Iris M. Young. Intersecting Voices: Dilemmas of Gender, Political Philosophy and Policy. Princeton: Princeton University Press, 95-113

Ethical Leadership Required to Lead a Diverse New Europe Kurt April & Eddie Blass

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Introduction: Limits of self and community

Globalisation is seen in various parts of the world as imposing a hegemonic, Anglo-American-oriented, consumerist culture that uproots and abrogates existing difference in the name of apparent, unexamined progress. According to King (2000: 143) “… such notions of supposed ‘progress’ prioritize a social ethic of integration that permits no understanding of the culture-systemic character and mode of functioning of ‘race’ as ideology”. Globalisation discourse, for many, has sought to eliminate notions of ethnicity, identity, intention and purpose, and have sought to obscure the contextual application of power and its related, supporting knowledge-infrastructures. Narrowly applied diversity management theory and techniques seek to enable further globalisation, and seek to benefit the ‘few’, not the ‘many’. Gaudelli (2001) argues that some scholars who theorise about the potential outcomes of globalisation suggest that identities will not be lost in this era, only reconfigured. “Local groups often reshape their local identities when they meet challenges related to globalization processes, but they do not abandon these identities…. What was ‘local’ becomes redefined as a modified form of ‘local’ that can work in conjunction with the supra-local forces” (Stromquist & Monkman, 2000: 21). Others have argued that globalisation does not necessarily forebode the demise of traditional cultures, as individual identity is still a matter of individual development and choice (Parmenter, 2001: 240). The global constructs of public, private and organisational life, therefore, have largely been defined by an American hegemony which has impacted on business life in the European Union, primarily through the key dimension of leadership1. This is reflected through patterns of behaviour in organisations that differ to the cultural norm of the nation state, or indeed cultural interpretations within the nation state. For example, the ideas of Weber (1957) and Durkheim (1915; 1918) adopted a positive science approach leading to organisational forms being drawn around the core principle of efficiency. Indeed, Weber’s notion of bureaucratic rationality was initially thought of as an ideal type and adopted as a paradigm by American sociologists, particularly Taylor (Brown, 1978). American theory, therefore, has had a positivistic emphasis on behaviour and the behavioural aspects of the rational sys1

Note the use of American and not Anglo-American as we do not want any confusion to arise here with the Anglo element being taken to reflect England, when it refers to the ‘white’ American rather than the ‘native’ American society.

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tem, and hence has had an ongoing reluctance to look into the ‘interior’ of individuals with regard to their interests of intentions. As a result, society and organisations have become structured and are operating in a way which is incongruent with the way in which individual and collective consciousness is, and is becoming, structured. Recent times have seen leaders in Western societies faced with conscious laden dilemmas, be they ethical business dilemmas, moral decisions relating to war and terror, increases in crime, perplexing economic issues, rampant globalisation, or emotional ethnic fervour and apparent loss of faith in governments. Such dilemmas have also impacted on the role of leadership as workforce courage in the face of such labour uncertainty has not diminished, and individuals are still prepared to maintain mobility in the labour market. Leaders are thus tasked with the challenge of shaping desirable organisations and societies, where the underlying ethical philosophy is to collaborate and work in the presence of the ‘other’, rather than maintain a style of leadership that is imposed upon the other. In the emerging global knowledge-intensive economic zone the significant challenge for the next generation of leaders will be the promotion and advancement of science, technology and business to serve the interest of all of human development rather than the sole interests of efficiency. This will be the case particularly in Europe, where the national and EU collective culture is diverging further from that of local, traditionalist norms. The nature of work within the mechanisms of the EU is seeing new upheavals and paradoxes emerge, which could etch away the very fabric of Western society as indigenous and immigrant populations within individual national boundaries are conflated, ‘traditional’ and ‘modern’ work roles become more extreme, and differing cultural norms try to converge in a single, open labour market. For example, many Eastern Europeans have travelled to Britain in search of work since the recent expansion of the EU, and they are picking up the lower paid, unskilled tasks that many British workers prefer not to engage with, creating a dual labour market within Europe. The question of who is central and ‘matters’ in this newly defined dual labour market and who is ‘marginal’ raises issues around power, meaning, dignity, status, perceived and practiced justice, equity and democracy, living standards and virtues, and the value of all life in an allegedly free society. The EU is thus needing to adapt to incorporate ethical principles and practices pertaining to issues of diversity, transcultural dynamics and human development for all who live within and sustain such a multivariate geographical zone. Leaders within Europe are finding themselves at the forefront of needing to initiate the discourse and deconstruct the issues relating individual and national identities, and self and group identities, in order to maximise the economic and social benefits that will work for everyone. They need to take account of the traditional bastions of power while considering the newer, nebulous forms of power, balance positivism with constructivism, individualism and collectivism, and instrumental reason and commoditisation in the face of sub-community outcries in search of the common good.

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For Marx (1967) such leadership responsibility, doing the right thing, involves stripping away feudal myths relating to the bureaucratisation of industrial life, to unpack the inherent instrumental rationality for using and/or abusing people, and lay bare the larger irrationality of exploitative relations that alienate people. Weber (1957) would clearly disagree, arguing that leaders are bound to orient and focus the rationality of modern bureaucracies towards solving problems, and thus the leaders’ main tasks are to set goals and organise work so as to create human relations which serve the short-term good (Brown, 1978). The failure of the manifestation of the Weberian rationality paradigm led to a resurgence in Durkheimian interpretation (1915,1938) which made sense of the anomie through instrumental reasoning, drawing on the complex divisions of labour characteristics in industrial societies (Parsons, 1951; Merton, 1957). This line of reasoning leads to the recommendation that organisations become humanised through an enhancement of affective relations in the workplace, securing a better understanding and interrelatedness between the concepts of self, community, and work – a concept that conflicts with that dualistic nature that the current EU labour market is fostering. Given the concept of the European Union as a boundaryless community, Black (2001) highlights the difficulties associated with defining the limits of the self and the community, a conflict which European leaders in particular have a responsibility to resolve. However, Black also warns that there is a tyranny of silence surrounding these matters, and bringing such matters to the forefront should therefore be regarded as a moral choice. It is all too easy to remain silent and ignore this underlying turmoil, but a lack of resolution now will lead to greater divides and further breakdown in the community at a future date. This therefore remains the challenge for European leadership – to foster a sense of community that breaks down the emerging dual labour market – but it is not something that political leaders can do alone. Leaders in organisations are the ones who will make the difference in practice, and the first challenge is their recognising that there is an issue that needs addressing. Identity groups (such as the individual nations within the EU) gain power through individuals adhering to their group (Walzer, 1997). As the European workforce demographics have rapidly expanded and changed with the internal migration of the new Eastern European member states, we are beginning to see a new form of leadership-evoked ‘diversity management’ evolve. This has developed to absolve the guilt, shame and ethical responsibility for the misguided and selfish actions that we are currently witnessing against the left-out, left-behind, unwelcome, different and left-overs in European society. While there has always been the potential for this problem to arise, it has not been a serious issue previously because the advantage of open borders between the EU states has not led to vast numbers moving. Rather the majority of individuals have chosen to remain within their own nation states, and so issues around community, inclusion and cultural differences have managed to remain below the surface. This backlash against the newer member states, however, has brought the issues to a head: mass internal migration has oc-

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curred within the EU as the Eastern Europeans have sought a better lifestyle by moving to the founding member states. While EU law is robust in terms of equality of opportunity, there is much that organisations can do in terms of diversity and inclusion policies and practices to shape the operation of that law. It is possible, for example, for organisations to operate their diversity practices so that they both stabilise the issues of psychological emancipation of the diverse group while appeasing guilt-ridden morality that erodes identity by implementing minimum processes that are barely sufficient, and appeasing practices that ensure a form of stability and comfort, and the continuance of sublime discriminatory practices. Examples include organisations that require a diversity quota when it comes to recruitment interviews but the selected candidate is never from that quota group, or organisations where dress codes or uniforms are restrictive to some religious communities. There are also organisations that monitor diversity and have great statistics, but when one looks around them there are certain minority groups that are still not accounted for (particularly in senior management and executive positions). The recent expansion of the EU has forced the diversity issue in Europe and the time is now right for a different kind of discussion to be engaged in regarding the inter-subjectivity of ethics, diversity and leadership – one that incorporates a compelling European vision of a knitted, collective future that works for all its citizens. To contribute to this conversation, this paper seeks to start the dialogue around four fundamental questions: 1. Why is it important for leaders to continually focus on issues of diversity management (i.e. why can they not take their eye off this ball)? 2. Why have we not got diversity management right, and why can we not get it right? 3. If we are not getting it right, why do we keep doing more of the same, just harder and with greater effort (i.e. why do we not change the mental/cognitive and emotional constructs)? 4. What are our individual and collective levels of awareness when we do eventually get some diversity management results (i.e. do we know what we have actually done to get it right)?

2

Managing the construction of difference

Diversity management is already an established theme in the business lexicon, managerial ideology and in the leadership development of leaders in Europe. There may even be a danger of it evolving into a resource-leveraging exercise through which leaders and managers seek to further exploit human potential through maximum extraction managerialist philosophies that see the myriad of possibilities that differences can potentially offer us. Such a view exploits the benefits of diver-

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sity to an extreme state, and while it may ensure that diversity practices occur, the extreme nature of the motivation behind the implementation may result in some of the true benefits being lost. Such a bottom line attempt to capture the experience of “self” and “other” brings it within the sphere of managerial control and treats it as yet another problem to be solved, or a pathology (Costea & Introna, 2004) which works against the concept of diversity itself, as it focuses on the nature of the difference. Such a managerialistic paradigm views “others who are different” through narrow lenses which are superficial, destructive and morally questionable, as human diversity is substituted with the perception of difference. Hence organisations may feel that they have evidence to demonstrate that they are achieving great heights with regard to diversity, when the reality is they have become good at exploiting difference. This leads to peoples’ behaviour being based solely on the superficial evidence of how they physically appear (Gaudelli, 2001), leading to assumptions about how they think, what they value and how they are likely to behave. In essence, it becomes a self-fulfilling circle driven by misperceptions and stereotypes, which can escalate to societal unrest as has recently been witnessed in France, Britain and the Netherlands. Our personal experience of diversity, though, is that when done right, it is inclusive, mysterious, intensely personal, and engenders the suspension of ego and our narcissistic tendencies. It is the basis for attraction to others, particularly talent (Ng & Burke, 2005). It affects our curiosity and learning outlook, and while it certainly can be a source of tension and it often takes discipline, it always enlarges the possibility of what could be. It is therefore, in our view, not pathological, nor a problem to be dealt with, and it does not lead to disorganisation (Costea & Introna, 2004). Rather it leads to, and creates the basis for, new forms of organisation and new potential for leveraging the unexplored “network holes” that diversity presents. It sets the stage for broader arrays of ideas and information to be assimilated, provides “licence” for the re-negotiation of new forms of identity and civil alignment, and ultimately in organisations, it is the root for higher levels of inventiveness. Leaders in Europe are battling with integrative emergence with little in place in terms of support mechanisms. Business schools offer models of development and growth that have been developed within the American management fraternity as this has been the source of the steady stream of leadership and management ideas and practices that have flooded into Europe. The American dominance of the canon of knowledge in this area has led to the development and adoption of models which strive for the economic superiority of exploiting diversity without critically examining the real needs of individuals, organisations and the new European society. Such uncritical acceptance of socio-cultural, economic and political realities in a transitioning Europe cannot be assumed to guarantee any anticipated outcome, because the environment, context, history and desired future for the region is fundamentally different from that on which the American models are based. As exploitation persists, alienation becomes greater, and people retreat further into the groups or communities where they can find some shared cultural understanding,

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empathy and opportunity to express themselves. This resulting pattern has led many in Britain, in particular, to start to question whether ‘multiculturalism’ as a policy is working (see for example Alagia, 2006). Yet rather than challenging the appropriateness of the models, we are instead reminded by Leadbetter (2000) that strong communities can be pockets of intolerance and prejudice. The challenge shifts therefore to how one defines ‘communities’. Settled, stable communities are the enemies of innovation, talent, creativity, diversity and experimentation. They are often hostile to outsiders, dissenters, young upstarts and immigrants, and require conformity, resort to nostalgia, and become the enemy of knowledge creation which is the wellspring of economic growth. That form of community is not what we are seeking to achieve. It is a community of conformity rather than diversity – regardless of which group it represents, be it an ethnic community, religious community, class community, or socially defined community – if its excludes on the grounds of non-conformance, it is a community that can indeed become a pocket of intolerance and prejudice. Therefore it is paramount that communities become inclusive and not exclusive. Chomsky (1996:107) argued that Americans have been “… drowned in ‘enduring truths’ about our altruism and awesome benevolence, and the ingratitude of a hostile world,” which has led to the “othering” of people who appear different, particularly those from the developing and underdeveloped world. The United States, though, is not unique in its creation of identity that marginalises or sees the “other” as a less-than equal participant. Rather than constructively using the well established Anglo-Saxon models existent in Europe, as well as Eastern-European models, the Southern-European approaches, African, Middle-Eastern and FarEastern, Nordic and native-culture knowledge and insights to help inform the design of divergent, context-relevant and appropriate constructs and frameworks, many leaders in these parts of the world have, instead, uncritically opted to use convergent, American-designed diversity practices to normalise heterogeneity through active and purposeful governance. This is operationalised through organisational practice. Roberts (2002) describes such practice as “expert suppression of contradiction”, and includes such practices as prescribing organisational values, using standard feedback mechanisms, using standard job grades and categories to manage people’s careers, managing their emotions – in essence imposing “normality” because of a fear of the unpredictable. In this leader-developed paradigm, people expend their emotional energy seeking to please other people, playing out roles in an attempt to please management and leadership, protecting themselves and seeking self-gratification while engaging in power struggles (overtly or covertly). Foucault (1994) takes the argument further claiming there is no real man, only the organisation of power-knowledge that, through dividing practices, makes each of us a subject of varying sorts. Dividing practices refers to the manner in which diverse individuals are drawn into an otherwise undifferentiated mass, based on a particular commonality (Gaudelli, 2001). This practice tends to victimise the person, leave them in states of dependency or disempowerment of being, as their

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classification is imposed upon them by others. This dependency can be indicative of low levels of moral maturity in leaders, organisations and societies (Riskas, 1997). Hence moral immaturity can result in the loss of individual identity as organisational systems and power-knowledge processes encourage a normality of performance which stamps out difference and diversity. If the mere process of organisational systems can have such a supposedly profound effect, questions arise as to the strength of the nature of difference in the first place. Is the strength of individual difference and diversity being over-stated? Psychological literature (see, for example, Craik & Lockhart, 1972; McGuire, McGuire, Child & Fujioka, 1978; Shavitt & Brock 1984), indicates that individuals, through social comparison (Bearden & Rose, 1990), may differ in their selfconcept, self-knowledge, self-perception and self-thought which will influence their information processing and emotional responses (Markus & Oysermen, 1988; Wang & Mowen, 1997). This ultimately leads to the activation of their categorisation – a subjectification of self, or self-referencing (Debevec & Iyer, 1988; April, Macdonald & Vriesendorp, 2000). Hence individuals seek to find belonging in a number of categories or groups, or what we would like to call communities. Foucault (1994), in particular, found this fascinating: not the way that humans sort and are sorted, but rather, the ease by which people allow themselves to be categorically determined and impose categorisations upon others. We find equally fascinating the way in which leaders help construct milieus that determine people’s self-concepts for encouraging and enhancing, rather than critiquing and deconstructing, such categorisations. Jen (1997: 19), an Asian-American writer, in highlighting the limits she faces in dealing with society asserted: “… a person is more than the sum of her social facts”. Self-concept affects our intention, and often our moral courage for publicly acting out/on our intention. Depending on social, economic and political milieus, we tend to exhibit selectivity in our self-perception. Subjectification, unlike dividing practice, is less a process of being acted upon and more a matter of acting upon oneself, that is automatically categorical and self-essentialising (Foucault, 1994; Gaudelli, 2001). According to McGuire et al. (1978: 512), “Distinctiveness probably affects the self-concept both directly and indirectly: directly, by our noticing our own distinctive features; indirectly, by others perceiving and responding to us in terms of our peculiarities and our adopting others’ views of ourselves … we are conscious of ourselves insofar as we are different and we perceive ourselves in terms of these distinctive features.” The process of self-categorisation involves a process aimed at self-understanding, but reliant upon an external authority figure (Rabinow, 1984: 11) which, in the reality of the Western world, is often a leader. In answer to the question of whether diversity is over-stated, it is probably the opposite that is true. Diversity is likely to be understated as individuals have a psychological need to belong and hence want to conform to some categorisations. The real power in society, organisations and individuals therefore lies with whoever or whatever it is that defines the categorisations that the individuals conform, or belong, to.

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The extent to which these constructions of difference impose a hierarchy of power is particularly disturbing to us. Our research has highlighted the fact that if one alters a person’s social or economic milieu so that different physical or intentional characteristics becomes distinctive, within a peculiar context of power and knowledge, one can alter that person’s self-concept – empowering some, while disempowering others. Like many contructivists, we disagree with the existence of a permanent truth or permanent categorisation, and argue for truth construction in particular temporal, spatial and power contexts. According to Gaudelli (2001), societies always ascribe to a “regime of truth” about the manner in which they are identified, theorised, and utilised. Leaders in the new Europe therefore have a responsibility to make the emerging discourse acceptable and articulate, and must put in place modes of enquiry to achieve, and be publicly held to account for, declaring such a “regime of truth”. This would establish a regime of truth that is appropriate to, and congruent with the fluidity of the region. Otherwise, Europe will regress into isolated communities defined by self-nominated categorisations that will tend to serve their own purposes rather than the needs of the wider community.

3

Critically deconstructing our models of practice

The concept of the European Union is embedded with paradoxes in practice. There is a need for leaders to acknowledge the chaotic mix of complicated social histories and simple patterns for forging forward, the ever-present hybrid and collectivist values, the embedded social dualism and psychological dualism conflicting against that, the pressures for individual progress and community upliftment, and the complex intertwining of politics and business that is inherent to this geographical region. Leaders within Europe continually need to consider management practices and techniques that allow them to tend to contradictions allowing them to replace “or” with “and.” Even though many leaders and their organisations/institutions voice common sense visions of diversity, in their recruitment, talent management and retention practices they are not achieving this. Ultimately the use of sophisticated 360 degree feedback processes, performance reviews, and cultural-intensive acclimatisation practices, is leading to the cloning of individuals by them continually receiving messages which clarify what is sought in behaviour within the organisation/community, and equally by making explicit what is not acceptable within the organisation/community. This is then combined with consequences/punishment for not performing as the rest of the organisation/community desires, often described as incentives such as bonuses and financial schemes for towing the organisational line, or citizen benefits for towing the community-line. It is this lust for comfort and doing more of the same that makes old leadership paradigms irrelevant and morally questionable in the 21st century and ultimately threaten the sustainability of organisations/communities and societies, particularly in high-flux transitional societies in the EU. They cannot have more of the same – the concept of the EU makes that an impossibility.

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The rhetoric, slowly being treated as common sense in Europe, informs us that a free, liberated, emancipated subject is ideologically desirable, but common practice informs us that it is to be treated managerially as a source of tension, conflict and problems. The assumption behind this managerialist thought is that the inherent, creative, life-giving tensions driving human systems of activity are not desirable (in terms of identity and self-worth, collaborations, quality relationships, and meaningfulness), and that they are a pathological manifestation of loss of harmony in social systems, or potential symptoms of dysfunctional social organisms (Brown, 1978; Costea & Introna, 2004). The paradoxical question we are left thinking about is: “How can unique individual potential be truly acknowledged, celebrated and developed if it is at the same time seen as a source of deviancy, a source of tension, and/or seen as a potential threat to normality and what has always succeeded around here?” What is more, this paradoxical position does not seem to deter anyone either working and researching in the leading of diversity domain, or writing about the domain. They appear to just carry on, uncritical in moving forward, because that is how things have always been done. Indeed they are conforming to the American-driven canon of knowledge that determines how “best practice” companies and countries do it, accepting how much we currently understand given the narrow lenses through which the current discourse is presented, in a limited “cognitive space” (Chomsky, 1993: 44). In this paper, we have set aside to really think about, and interpret, the issue – the socially constructed space to which the field of identity is inextricably linked, and to question whether all that has come before has been viewed through pro-conformity (anti-diversity) lenses. If this is the case, there is a major change required in the way in which we educate. Multicultural diversity, filled with generalisations about the nature of people in certain groups, is increasingly evident in university and business school curricula, the training ground for many leaders, and before that in the school curriculum. Fuelled by such training and education, we begin to readily and naturally categorise in order to come to terms with the incomprehensible diversity existent in humanity. Once we have established categories, we continue to prejudge on the basis of those constructs (Gaudelli, 2001). More often than not, such categories have implicit degrees of membership that suggests “better representatives” and “worse representatives” of the categories. For example, when speaking of human categories, people most often refer to an essentialising of socially recognisable identity categories rather than saying people are human (higher categorisation) or talking about them as individuals (lower categorisation). Essentialising people according to broad, social categories, often rejects the uncategorisable as those who do not easily fit within the dominant schema (ibid). Considering every member of a group as endowed with the same traits saves us the pains of dealing with them as individuals (Allport, 1954). Lakoff (1987: 56) examined prototype effects in human categorical thought, and argued that humans tend to think of “best representations” of categories, adding an evaluative dimension to their groupings. Rationalists argue that identity

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has social significance because people are, in some ways, reducible to some transcendent, essential facts (Wilkin, 1999). These variable, essential facts, be they culture, race, ethnicity and gender, or a combination of these identities, help organise thinking about otherwise incomprehensible diversity in both individuals and groups, as they change in time. Hirschfeld (1996) reminds us that that there is an innate grasp of these essential facts from an early age, and dominant rationalist motives, fuelled by biological predisposition and bounded reasoning banish such a grasp to our subconscious. This is aided through the schooling process, university and business school development of leaders, and the scripting of social forms of organisations. Hence while we may be born with a recognition of diversity, our upbringing, schooling and society pushes down a path to consciously categorise rather than treat everyone as an individual, in essence because it is easier for us. Rationalist tendencies to universalise human cognition and totalise the individual have been countered by constructivists who claim they essentialise humanity in a probabilistic and predictive manner that undermines human agency and a human’s limitless capacity for self-invention (Wilkin, 1999). Hobsbawm (1996: 1067) claims “the concept of a single, exclusive, and unchanging ethnic or cultural or other identity is a dangerous piece of brainwashing. Human mental identities are not like shoes, of which we can only wear one pair at a time”. Hence categorising not only limits human capacity and potential, but has the added danger of miscategorisation, as individuals are likely to belong to more than one category at any one time and all would need to be taken into account. There still appears to remain an unease and unwillingness amongst current European leaders to improve conversations that could help us unearth the cognitive tapes (Cialdini, 1988; Lackoff, 1987) and the very presuppositions that lie beneath the public and private discourse. Cialdini (1988) identified some basic social psychological cognitive tapes that are culturally imbued and readily reverted to when information becomes too vast and complex. Hirschfeld (1996: 4) claims that race, for example, is commonly encountered in contemporary discourse as a human categorisation that “encompasses beliefs about inner nature as well as outward appearance”. To shift from categorical thinking to critically deconstruct our models-of-practice, we will be required to examine our more often than not racist presuppositions (Hirschfeld, 1996), and this will require us to acknowledge that they exist in the first place. Davidson (1996: 3), critiquing extant identity discourse, argued that “taken to an extreme … [racial identity] implies that the meanings, behaviors, and perceptions associated with a specific background are relatively fixed, exerting a constant influence [on an individual]”. According to Gaudelli (2001), what separates rationalists from behaviourists in this regard is that, while people are inclined to act in a certain way (i.e., to automatically cluster other people on the basis of superficial information), they are not driven to do it. Agreement about which presuppositions are valid is not necessary, as both modes of thinking have value. The answer lies not in having one side “win” the identity debate, but in raising the dimensionality of it within pubic discourse and heightening the awareness of leaders, scholars of leadership and practitioners to confront

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the ambiguous, make explicit their incongruous assumptions and consider their fundamental beliefs regarding the construction of “identity towards marginalisation”, and its relation to power in particular. Indeed, they need to account for their identity in their personal, work and societal lives as a starting point. There is a lack of awareness and deep insight into the fact that “equalisation” will ultimately benefit everyone of every persuasion, in what Giddens (1991) termed “democracy of identity”. We all, particularly leaders, have to come clean and acknowledge the ways in which many of us have been damaged in the past and in the present. Equally, many have been affirmed in the past and still enjoy the benefits of that affirmation. Indeed many were afforded benefits, mainly social and economic, that still persists today and will take a very long time to “equalise”. However, if nothing actionable is done, we may just end up with social breakdown, possibly modern revolution, where the economically marginalised majority will forcibly take strides towards equalisation. Just to clarify terms – this is equalisation we are talking about, not communism, and it is not just for those within the EU member states. As well as the expanded EU countries, there are also tension-filled diversity issues in the broader sense with people from Turkey, the DRC, Morocco, Zimbabwe, Nigeria, Cameroon, Iran, Afghanistan, etc., who are treated as “problems” or “potential problems”. “Asylum seekers” has become a negative label rather than a positive acceptance of allowing someone previously banished from their former homeland, to express their diversity. Being focused on minimum, legalistic standards, many organisations/institutions have not even begun to strategise more broadly about an all-encompassing diversity agenda – and so comments such as “We’re currently focusing on the issues of equality as far as natural Europeans are concerned” is what a lot of foreign nationals and immigrants are experiencing in their discussions within corporate EU. Management ideologies predicated upon a total abhorrence of tension are not new; indeed they form the basis for much of mainstream management theory. However, if tension is undesirable then it must follow that diversity too is undesirable, as diversity leads to tension. To continue without tension, the continued dividing of the world is a desirable and acceptable outcome. All difference leads to tension, but tension need not be a bad thing. As one diversity-aware manager said, “If two people think the same, one of them is unnecessary!” Willinsky (1998: 259) examined sources of learning and found that the tendency to “other” is a particular product of hierarchical Western education, particularly management education. He argued that “what needs to be made clear is that, as the schools have contributed to racialized identities, so they need to be engaged in study of their own historical construction”. It would appear that one of the roots of our leaders’ unwillingness to make responsible, moral choices with regard to diversity is in the formal schooling they receive. This may be a useful place to start the inquiry and deconstruction process in order to help them understand what such divisive learning has created and continues to create, and what thinking in efficient categories have come to mean. The enduring impact of the choices that leaders make (purposeful or other-

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wise) is not what they eventually get in return, but essentially who they become as people. Hence we need to mentor, coach and help these individuals to build moral courage before they need to practice it in the world of consequences driven by market demands. This requires us to re-examine the basis of our reasoning.

4

Deconstructing our instrumentally-reasoned identities

For modern human beings, instrumental reason has become the overriding, if not the only, principle by which they live, and it determines, justifies and insists on stable and predictable social, political and economic relationships (Ortega Ruiz & Mínguez, 2001). Public, business and civic society leaders are all under an apparent pressure to resonate to market demands, and are seemingly powerlessness to some external force that will not, or more correctly, should not be questioned. Individuals and peoples have seen themselves stripped of their identity, become objectified in favour of the market, and ultimately suffered the accompanying loss of their genuine and open anthropological sense that quite naturally exists in human relationships of difference. The supremacy of this concept and its impact on the loss of recognition of the intrinsic value of the human being has produced the greatest split in ideology in contemporary Western society (Ortega Ruiz & Mínguez, 2001). Costea (2000: 5) argues: “… as a self, the human learns, develops, acts, has agency; it changes its self and the world around it. This is the horizon of everyday practices as they are in the real world of leadership, management and organisations. The reduction of this horizon to functional-economic models leads to the abandonment of the very reality these models purport to represent”.

It is our experience that the sense of difference between ones “self” and the “other” is a dynamic/temporal phenomenon, and cannot be stabilised in formal, rational and linear categories. Many have raised concerns about the manner in which identity is engaged and its implications for various social phenomena. Identity has been criticised as being essentialised (Allport, 1954, 1979; Appiah, 1992), engaged with in a manner that is automatically categorical (Cialdini, 1988; Hirschfeld, 1996), or lacks recognition of the power-knowledge dynamic (Black, 2001; Carneiro da Cunha, 1992; Fiereman, 1990). Identity has also been used to divide and marginalise (Ogbu, 1998; Willinsky, 1998), subsume the individual in a totalising manner (Davidson, 1996; Jen, 1999), and been used to foster an unhealthy individualism (Taylor 1991). Humans are existentially competent, dynamic and complex from birth (Bogdan & Introna, 2004; Brown, 1978; Stacey, 2004). In relationships we continually and dynamically negotiate and renegotiate our multiple identities, by confirming and unconfirming self-views. This dynamic process of identity evolution is always defined in dialogue with, and often in struggle against, the identities of our significant others (April, 1999), e.g., our parents and family, our bosses and organisational leaders, our peers, our community leaders,

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and so on. According to Taylor (1991), even when we outgrow some of the significant other-defined dimensions of identity and they disappear from our lives (Mead, 1934), like our parents and others who matter to us, or when we move from geographically-engendered norms, the inner, dialogical conversation with them continues within us as long as we live (Bakhtin, 1984; Holquist & Clark, 1984; Wertsch, 1991). Our relationships therefore impact strongly on our identity. Classical cultural theorists have attempted, often in unconscious orientation, to use this inner dialogicality as the basis for dealing with people through purely culturally-defined categories, by shutting out the greater concerns that transcend the self, developing homogenising, narrowing, theories of practice premised on the belief that language, art, gesture, identity, love, relationships, and the like, are culturally bound and are fairly static throughout an individual’s life. According to Gaudelli (2001:65), “When the incomprehensible diversity of individuals is subsumed under broader cultural headings, the streams of discourse are submerged into what appears to be a broad, homogenous river of culture that is, in metaphorical terms, an intricately constructed levy and dam system created by those who stand to benefit from its operation.” Hence if one shuts out the impact of the individual relationships, one is left with individuals identity being shaped by the cultural norms and categories that preside over them. In Western societies this is instrumental reasoning, and hence it has come to be a dominant presence in the formation of individual identity, stifling difference through the need for commoditisation. The problem becomes one of how to deconstruct such an identity when one has been brought up, educated and socialised within it. The power of the logic of instrumental reason is great as it appears rational and the propaganda heralds it as a success, hence it is difficult for those who subscribe to its philosophies to even comprehend questioning it. How then does anyone find a voice for those cultures, groups, identities and individuals who fundamentally believe otherwise? Could this be a root cause fuelling the increase in extremism? As people cannot find a voice within the boundaries of instrumental reasoning, new forms of power are emerging and change is required.

5

The responsibility of leadership toward a just Europe

Diversity management cannot be subjugated to mere training programmes that superficially deal with multiculturalism, as we commonly find in organisational life. They cannot be justified solely for instrumental reasons, or serve to further enhance the continued soft despotism of the embedded managerial dominance over every aspect of people’s lives. The conscious-created contexts within which we find ourselves and our organisations draw our attention to our sources of power, because power is central to our interaction with each other, and power emerges from the interactions of people. Power is not a thing that someone has more of, and someone else has less of. Power is simply a constraint. It both enables and mutu-

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ally constrains/disables (Stacey, 2004), and it is not equally distributed. People continuously and unconsciously sustain certain patterns of power relations. Power, almost always, is dependent on needs and intent: needs with regard to power as a pattern of relating that shifts, depending on how much we need each other; and intent with regard to power as being given and taken from others, manifesting in in-groups and out-groups, in congruence with our current, and future, intent (Hogg, 2001). As a result of the mitigating effect of intent on our power, power therefore does not always apply only to individuals. It also affects groupings (an inevitable, conscious or perceived pattern of inclusion and exclusion), and it is those patterns of inclusion and exclusion that give us our very identities. We fear, like some in the recently expanded Europe, that leaders will gain power by expanding their ethnic base, or dominant culture, and thereby perpetuate the primacy of ethnic identities. Some civil society activists argue that actions which at first sight appear to be concerned with the maintenance of culture and traditions, are in fact propelled and concerned with the unequal distribution of power. Some countries in modern Europe require immigrants and foreign nationals to learn their language, their cultures and their ways of doing things. Ask people who they are, and they inevitably begin explaining which groups they belong to, along with which groups they feel they have to belong to, and/or want to belong to. The need to maintain an identity base to assert one’s power is not unique to plural democracies in the West, but also in places like Africa (Carneiro da Cunha, 1992: 289) and Asia (Hendricks & Huang, 2004). “I” and “we” groups can not be separated out – so we become very passionate about the groupings that we consciously and unconsciously belong to and do not belong to, or groupings that other people, correctly or incorrectly, ascribe to us. These grouping are usually sustained through ideology (norms and values), and ideologies make it feel more natural to operate in certain patterns of power (Stacey, 2004). If we truly want to live in a different world, we must start by being critical about our mental models and constructs of practice, become aware, operate authentically, understand our interdependence, engage with others in meaningful ways, and be realistic about the state we are in. We must get to grips with the repressed historical complexes that have been driving us to collective schizophrenia, and we must consider the need for [collective] cultural psychotherapies (McIntosh, 2002). Fiereman (1990) encountered many instances where individuals’ actions contradicted their moral beliefs, as explained in their exegesis of their “culture”. Power is often gained by the construction of groups (e.g., “cultures”) where previously the discourse to name a group as such did not exist. Organisations need to recover their repressed histories, understand how and why their “being” has been constructed and (in some instances) distorted, and notice how it has shaped their organisational ideologies and behaviours. But it is not just a matter of changing the outlook of individuals (hearts and minds), nor is it just a matter of changing organisational understanding (path dependencies and processes). Change in this domain will have to be institutional as well (societies,

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laws and structures), and that requires purposeful action, continual, explicit focus and sustained effort on the part of leaders. Individual citizens also cannot just stay home, enjoy the benefits of societal progress, enjoy the satisfactions of private life, as long as their paternalistic governments and organisational leaders produce the means for these satisfactions and ensure that they are beneficiaries of such “leadership” – and therefore contently live disengaged and semi-conscious lives. This, as Tocqueville (1981: 385) warns, opens the danger of soft despotism in which everything will be run by an “immense tutelary power”, a group who constitute the dominant categorisation. Hence the importance of the individual cannot be overshadowed by the relative ease that categorising offers, as opting for the easy-life shifts the balance of power.

6

Conclusions

It is these power patterns, shaped by ideology, that European leaders should focus their attention on if they stand any chance of disengaging from the dominant American meta-paradigm to move from “understanding to control” (e.g., the narrow efforts of culture) to “understanding to allow tension, unpredictability and possibility”. We question and challenge the uncritical, single-minded focus on culture by leaders and their initiated diversity management practitioners in Europe. Culture is merely one strand of the multiple dimensions that make up individual identities, and thus the multiple identities exist within organisations, institutions and societies. Consequently, more effort and critical practice is needed in the area of individual identity, work, power, society, context and actioned intent if the diversity management agenda is to move forward. It is the rich and varied identities of human beings that allow for the variety and multitude of ways in which we differ (whether that be in gender, socio-economic background, ways of thinking, sexual orientation, life experiences, tenure in organisations, beliefs, ethnicity, ability and disability, religion, values, upbringing, schooling and education, propensity for uncertainty and ambiguity, functional and technical specialisation, heritage, talents, family status, perspectives, and so on). By focusing our thinking about diversity through the lenses we have presented above, we can get to a fuller comprehension of the multi-faceted human condition of which we all are partakers. Only when private organisations can maximise the coalescence of the rich dimensions of diversity mentioned above, will they then reap the benefits from sustainable competitive advantage they all long for, and lay the foundations for a sustainable Europe. Humans are fundamentally hermeneutic creatures, seeking to understand the three fundamental terms of their condition: world (context and meaning); finitude (possibility); and individuation (wholeness). The moral prerogative for leaders in respect of the world, is to set the basis for such meaning for individuals; in respect of finitude it is to critically deconstruct the reasons, need and continuance of rampant instrumental reason; and with respect to individuation it is to regard moral

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choices carefully to ensure that they continuously safeguard individuals against the loss of freedom. In many ways, modernity has obscured for us the moral choices to be made. There are many reasons for leaders to continue forward paradigmatically locked in pathways of efficiency and expediency, following the bounds of instrumental reasoning. In summary, individuals seek to critically reflect on the world, and want to be reflected meaningfully and favourably by it. Therein lies the ethical challenge for incumbent and emerging leaders in Europe who need to demonstrate responsible leadership as the starting intent, not the guise of humanness post-instrumentality. Through meaningful, critical practice, extended-language, and expanding the metacognitive awareness of individuals, leaders can assist individuals to sense-make their relationships with other people, other perspectives, other practices, other institutions, other landscapes. The by-product will be a more engaged Europe, that ultimately impacts the sustainability of this exciting region and ensures that it truly does become a Union of countries, and a role model to other regions

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Holquist, M./ Clark, K. (1984). Michail Bakhtin. Cambridge, MA: Harvard University Press. Jen, G. (1997). “Who’s To Judge?.” The New Republic, Vol. 216, 18-19. Jones, M.L. (1989). “Management Development: An African Focus.” International Studies of Management and Organisation, Vol. 19, No. 1, 74-90. King, J.E. (2000). ”Race”. In Gabbard, D.A. (ed.). Knowledge and Power in the Global Economy: Politics and the Rhetoric of School Reform. Mahwah, NJ: Erlbaum Associates, 141-149. Lackoff, G. (1987). Women, Fire, and Dangerous Things: What Categories Reveal About the Mind. Chicago: University of Chicago Press. Leadbetter, Charles (2000). Living on Thin Air. London: Penguin. Markus, H./ Oysermen, D. (1988). ”Gender and Thought: The Role of the SelfConcept”.I In Crawford, M./Hamilton, M. (eds.). Gender and Thought: Psychological Perspectives. New York: Springer, 100-127. Marx, K. (1967).Writing of the Young Marx on Philosophy and Society (Trans. Lloyd D. Easton and KurtH. Guddat, and Eds.), Garden City, NY: Doubleday. McGuire, W.J./ McGuire, C.V./ Child, P./ Fujioka, T. (1978). “Salience of Ethnicity in the Spontaneous Self-Concept as a Function of One’s Ethnic Distinctiveness in the Social Environment.” Journal of Personality and Social Psychology, Vol. 36, No. 5, 511-520. McIntosh, A. (2002). Europe, Globalization and Sustainable Development (Keynote Address at the Europe, Globalization and Sustainable Development International Conference, Department of Politics, University of Dundee, 19th-21st September 2002). Mead, G.H. (1934). Mind, Self and Society. Chicago: Chicago University Press. Merton, R.K. (1957). Social Theory and Social Structure. New York: Free Press. Ng. E.S.W./Burke, R.J. (2005). “Person-organisation fit and the war for talent: does diversity management make a difference?” International Journal of HRM. Vol.16, No.7, 1195-1210. Ogbu, J.U. (1998). ”Voluntary and Involuntary Minorities: A Cultural-Ecological Theory of School Performance with Some Implications for Education.” Anthropology and Education, Vol. 29, No. 2, 155-188. Ortega Ruiz, P./ Mínguez, R. (2001). “Global Inequality and the Need for Compassion: Issues in Moral and Political Education.” Journal of Moral Education, Vol. 30, No. 2, 155-177. Parmenter, L. (2001). “Internationalization in Japanese Education”.I In Stromquist, N.P./ Monkman, K.(eds.). Globalization and Education: Integration and Contestation Across Cultures. Lanham, MD: Rowan & Littlefield Publishers, 237254. Parsons, T. (1951). The Social System. New York: Free Press. Rabinow, P. (ed.) (1984). Foucault Reader. New York: Pantheon Books. Riskas, T. (1997). Working Beneath The Surface. Provo, UT: Executive Excellene Publishing.

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Roberts, R. (2002). Religion, Theology and the Human Sciences, Cambridge: Cambridge University Press. Shavitt, S./ Brock, T.C. (1984). “Self-Relevant Responses in Commercial Persuasion”, In Sentis, K./ Olson, J. (eds.). Advertising and Consumer Psychology. New York: Praeger. Stacey, R. (2004). Power & Relationships (Lecture, Oxford Strategic Leadership Programme, Templeton College, Oxford University, November 2004). Stromquist, N.P./ Monkman, K. (2001). “Defining Globalization and Assessing its Implications on Knowledge and Education”.I In Stromquist, N.P./ Monkman, K. (eds.). Globalization and Education: Integration and Contestation Across Cultures. Lanham, MD: Rowan & Littlefield Publishers, 3-26. Taylor, C. (1991). The Ethics of Authenticity. Cambridge, MA: Harvard University Press. Tocqueville, A. De (1981). De la Démocratie en Amérique. Vol. 2. Paris: GarnierFlammarion. Wang, C.L./ Mowen, J.C. (1997). ”The Seperateness-Connectedness Self-Schema: Scale Development and Application to Message Construction.” Psychology & Marketing, Vol. 14, No. 2, 185-207. Weber, M. (1957). The Theory of Social and Economic Organization (Trans. A.M. Henderson and Talcott Parsons; Talcott Parsons, Ed.), New York: Free Press. Wertsch, J. (1991). Voices of the Mind. Cambridge, MA: Harvard University Press. Wilken, P. (1999). “Chomsky and Foucault on Human Nature and Politics: An Essential Difference?” Social Theory and Practice, Vol. 25, No. 2, 177-210. Willinsky, J. (1998). Learning to Divide the World: Education at Empire’s End. Minneapolis, MN: University of Minnesota Press.

Contradictions of Social Responsibility – German Business Elites and Globalization Peter Imbusch

1

Introduction

Business elites are facing criticism. There is increasingly frequent talk of social injustice in society and of business elites failing to fulfill their social responsibilities. There are complaints on the moral erosion brought to the business community by globalization driven by profit maximization, shareholder value obligations, and the profit interests of anonymous shareholders. This would likely lead to a dehumanization of business that is reflected in the breaking of social ties and in the collapse of human solidarities; it encourages a sort of “rogue capitalism” that will dispose of the bourgeois world together with its values. Others have criticized the growing power of capital and the total economization of life, which aids and abets shortsighted profit mentalities and loses sight of people on account of its quarterly success reports. “Locust capitalism”, the craving for maximum shareholder value, “unpatriotic behavior”—there are abundant examples of this in the course of globalization. Executives announce high profits and mass dismissals in the same breath; they relocate production abroad, while simultaneously taking advantage of tax breaks; they hike up their salaries while levels of pay for the broad population have been stagnating or even declining for years. Not without reason did the legendary victory sign flashed by Josef Ackermann to the media before his appearance at the Mannesmann/Vodafone trial come to symbolize self-confident arrogance. Opposed to this negative image, we find emphatic expressions on the part of business representatives with regard to corporate social responsibility and corporate citizenship, sustainable growth strategies, environmentally and socially acceptable rules, and the protection of stakeholder interests (Carroll, 1999; Braun/Kromminga, 2001; Wieland/Conradi, 2002; Bohnet-Joschko/Schiereck, 2002).1 Business elites frequently acclaim themselves as socially responsible players. In recent years, even the World Economic Forum in Davos (Switzerland) has at times given the impression of being a philanthropists’ club. Employers have always rejected their critics in this regard. They called them tasteless and unac1

It has now become almost impossible to keep track of the richness of such initiatives and associated services, events, brochures, and reports; the same applies to publications on the topic of corporate social responsibility. The subject has become a major “growth industry” in its own right having its own periodicals (e.g. the Journal of Corporate Citizenship and the Forum Wirtschaftsethik).

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ceptable, considered them as a sort of political sloganeering that was guaranteed to stir up debates on redistribution and envy. These events lead right to the core of the question of corporate social responsibility. For about the last two decades, business elites in advanced industrial nations of Western Europe have favored a neo-liberal modernization project embedded in accelerated globalization trends. It essentially comprises measures serving liberalization, deregulation, denationalization and corporate rationalization. These measures are legitimized by business leaders as a necessary means of maintaining profitability under globalized competition conditions and are in principle supported by most governments. The neo-liberal project and globalization then appear to be forces of circumstance (“Adapting to the laws of the market”; “There is no alternative”; “Globalization is not the problem but the solution”) to which business leaders are just as subject as all other groups in society. Without them, Germany would face massive economic disadvantages and in the long-term risk losing its industrial base. Critics of this position claim that executives and business associations used globalization as a threat in order to justify far-reaching power shifts in society that result in social division and disintegration, exacerbate tension between and within countries and undermine the traditional conditions of reproduction in political economies and nation states. The elites are said to be blind to social issues and to exercise their power without responsibility, while the unlimited mobility of capital and the formation of global markets saw a dramatic decline in local and regional loyalties and in civil responsibility (Lasch, 1995; Bourdieu, 1998). Managers and business leaders and their actions are coming under increasing criticism in the public eye – “business” is considered at least partly responsible for numerous problems, crises and processes of disintegration. But what is the real picture as regards the social responsibility of employers and executives? And why should they assume social responsibility in the first place? In the following I will give a brief explanation about the underlying research project and its methods. Then I will examine the different definitions of social responsibility and introduce a few essential findings of our research. Thereafter I intend to examine the disparate practices of business elites on the front stage and on the back stage. I will finish with a series of summarizing theses to illustrate the landmark changes that globalization has brought to business elites’ understanding of responsibility.

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The Research Project and its Methodology

Before I elaborate on these issues, I would briefly like to introduce the research project “Business elites between globalization and social responsibility” funded by the BMBF and the methods it has incorporated.2 The project has centered on the following issues: -

How business elites see the relationship between business and society,

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How models for society represent business elites,

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How business elites define their own social responsibility, and

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How business elites actually realize social responsibility.

In order to gain satisfactory answers to these questions as opposed to mere superficial findings, it was necessary to combine a variety of methods. First, we conducted a quantitative content analysis of two daily newspapers (Frankfurter Allgemeine Zeitung (FAZ) and the Süddeutsche Zeitung (SZ), covering several years in a period from the mid-1960s to 2002. The intention here was to determine which issues elites comment on in public and who speaks (and in what manner) about assuming responsibility within the sociopolitical debate. Second, we assessed two journals published by business federations and selected corporate citizenship reports from the top fifty companies in order to gain an impression of the range of social commitment, concrete examples of taking responsibility, and resistance to allegedly illegitimate allocations of responsibility. Third, we carried out problem-centered interviews with more than fifty representatives of business elites in accordance with a most-different sample. The aim was a concrete assessment of corporate concepts of responsibility in order to determine responsibilities and to get concrete examples in the representatives’ own words. The final part of our investigation comprised case studies that enabled us to expand on the insights gained within the scope of an initial exploration of material published by the media and business associations. The cases were selected using the method of theoretical sampling, while the categories themselves were determined inductively within the scope of the content analysis. The case studies cover

2

The reflections contained in this article go back to a research project that I conducted together with my colleague Dieter Rucht (Wissenschaftszentrum Berlin (WZB)): “Business elites between globalization pressure and social responsibility”. Some of his thoughts were incorporated into this essay. The Ministry for Education and Research (BMBF) supported the project from 2002 to 2005 as part of the Bielefeld research association on “Disintegration processes”.

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selected examples of concrete responsibility (Rucht/Imbusch/Alemann/Galonska, 2007; Imbusch/Rucht, 2007a).3

3

The Social Responsibility of Business

Elites are by virtue of their position and/or function detached from their environment (Hradil/Imbusch, 2003: 99–144; Hartmann, 2004; Wasner, 2004). They stand out through their influence on decision-making processes affecting society as a whole; they have access to power; and their power is largely institutionalized. However who belongs to the business elites – aside from the group at the very top end comprising a few dozen “captains of industry” from the biggest corporations – is not clearly defined. Our study covered two groups: (a) top management at major companies and the owners of larger family businesses; (b) leaders of business associations that are present in more than one federal state. Social responsibility is far harder to define than elites or business elites. It is not at all necessary to share the positions of St. Gallen’s business ethics theorist Peter Ulrich in order to assign responsibility to companies as “quasi-public institutions” or for this purpose to point to the German Constitution (Grundgesetz) and its stipulation of ownership-related social obligations. Even conventional elite theories portray employers and top executives as sociopolitical players; business activity is not neutral in social terms, and employers play a part in the shaping of society (Hoffmann-Lange, 1992; Bürklin et al., 1997). This gives rise to a social responsibility that goes beyond company interests. Another undisputed point is that the political spheres and the fields of action that can be shaped and influenced by employers and top executives in the course of globalization – understood in pragmatic terms as the global interlinking of economic and social activities (Beck, 1997; Giddens, 1995) – are growing, and these players are now established strategic/political forces at the international level. The privileged position of business elites leads to expectations that they should give something back to society (Lunau/Wettstein, 2004). In addition, business elites themselves assume to take 3

Our research provides examples of a range of responses to the question of social responsibility, and these can be broken down into different types in an inductive process. The spectrum covers outright refusal of responsibility, various forms of quid pro quo activity, the exercise of coercion, and independent, proactive commitment. The case studies examined the following examples of different degrees of social responsibility: the Mannesmann/Vodafone case; the cigarette industry and its defensive battles; the compensation fund supported by the German industry for enforced labor during the second World War; the German Corporate Governance codex; the gender-equality code of the German industry; a labor conflict at Volkswagen, which resulted in the model 5000x5000, granting working places for the acceptance of new wage structures; the introduction of the European Eco-Management and Audit Scheme (EMAS) as an environmental management system; the Boston Consulting Group’s business@school project; and the “shock advertising” of Benetton.

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leadership in public debates, and they are frequently assigned a model status that assumes an obligation not only toward shareholders, but also toward stakeholders, i.e. those affected in the broadest sense by corporate decisions. We have to differentiate gradual forms of social responsibility. It is important to acknowledge that the term responsibility has recently been overused – especially in connection with the debates concerning corporate citizenship and corporate social responsibility; nearly everything that can be communicated in positive terms is rapidly remodeled as responsibility. In my opinion, sponsorship and other marketing measures that serve solely to promote an image or to advertise products cannot be considered a realization of social responsibility. Nor does social responsibility include the personal responsibility of top executives and employers for their immediate environment or the economic responsibility inevitably resulting from their professional role. The term social responsibility should only be applied where representatives of the business elites provide help that goes beyond their genuine obligations; that has a supportive or enhancing impact on society as a whole; that attempts to influence specific groups or areas of society, or tackle such problems that lie beyond their immediate corporate horizons. The motives and interests can be very disparate. A minimum precondition for social responsibility, however, is the recognizable presence of an obvious benefit for other groups in society or the public at large in addition to any benefits for the company itself. This last point would at the same time be a benchmark for assessing whether and to what degree social responsibility is displayed. For this reason, social responsibility should hereafter be generally understood as a position that is assigned to a businessman or accepted and put into practice by these top executives themselves with the aim of improving the situation of disadvantaged social groups or of society as a whole (or at least trying to prevent conditions worsening). This kind of commitment normally involves money. Whether such funds are expended is ultimately down to the decision of the players – who will admittedly see themselves as being subjected to the expectations of their environment. Therefore one can identify three levels with regard to social responsibility: (1) there is an obvious obligation to assume responsibility that results from legislation or generally recognized standards of proper behavior; (2) assuming social responsibility comprises socially desirable actions that cannot be litigated but that, when neglected, can generate pressure of legitimacy; (3) or there are activities that exceed expectations and which are perceived as exemplary or selfless. The various concepts of social responsibility among business players can be localized on a broad scale and differentiated along ideal-typical lines as follows: Social responsibility in its narrowest sense involves focusing exclusively on commercial cost considerations. This involves the absolute rejection of any responsibility beyond the interests of the company and – in modern-day Manchester-style – a focus on the unbridled generation of profits. The employees of a company are seen not as indispensable human capital but merely as a cost factor that can be rationalized at will. Seen from this perspective, ethics and a feeling of responsibility do not constitute economic categories, so responsibility is neither expected nor

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justified. This is reflected in the broad repertoire of defensive positions toward allocations of responsibility and corresponding patterns of legitimacy. The free-market position, on the other hand, recognizes assumption of responsibility in the sense of successful business for the shareholders. This viewpoint envisages a convergence of commercial activity and responsibility in the sense of the commercially efficient management of a company within the context of a binding societal framework being seen as genuine proof of social responsibility. This shifts the focus onto the fulfillment of managerial tasks, the generation of income, and the provision of high-quality products. As Milton Friedman put it: “There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits.” (Friedman, 1962: 133) Further-reaching social commitment, meanwhile, is seen as extraneous to business and is declared to be a personal matter of employers and executives. A third position with regard to social responsibility involves a fundamental recognition of the necessity of assuming social responsibility, although the latter is to varying degrees defined by economic pragmatism. It is emphasized, for example, that profits must first be generated before redistribution can be envisaged, or that social commitments are an “investment” in a particular social milieu, which then gives rise to win-win situations (Habisch/Meister/Schmidpeter, 2001). This is also the base for the very disparate views and concepts of corporate citizenship and corporate social responsibility. These range, as we know, from an intrinsic social responsibility (with the intention to adjust profits to outlays for social concerns) to moral responsibility in the sense of charity (giving without wanting to receive), to the principle of completely instrumental social investments (giving in the expectation of receiving). Social responsibility in its broadest sense extends to far more than commercial considerations; it is not limited to observing norms and abiding to the law and does not allow responsibility to be lost in the anonymity of capital markets. Far more relevant is a strong orientation to stakeholders, a high level of sensitivity to social problems and increasing disintegration tendencies, and a considerable degree of self-reflection in business decisions with regard to the possible consequences of actions (sustainability, moral attitudes to responsibility etc.). Accordingly, corporate action is all the more obliged to assume social responsibility, even where this means concessions in terms of profit interests (Ulrich, 1999, 2000). In the case of business elites, finding a meaningful concept of social responsibility requires this responsibility to represent a range of actions that point beyond genuinely commercial activities and must as such be separated analytically from economic responsibility, especially from concern for the preservation of the company and all actions directly derived from this. In practice, however, making this distinction is not always easy due to the many potential areas of overlapping for both aspects in the course of normal business activity. In principle, it means that the term can be applied to those positions and actions of business elites that do not inevitably result from commercial activities (e.g. the creation of jobs as a consequence of a commercially necessary investment), and which instead require spe-

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cific efforts, possibly sacrifices as well. The title “socially responsible behavior” assumes that ethical criteria (abiding to the law, consideration for disadvantaged groups, or the public good) outweigh the interest in competitive success and profit maximization. Here we are confronted with contradictory criteria and a decision in favor of social responsibility based on an ethical principle. There are also conceivable win-win situations in reality so that moral dictates and internal profit interests go hand in hand, meaning that social commitment at the same time brings economic advantages.

4

Selected Empirical Findings

In recent decades, and more acutely in the last few years, Germany and other Western European countries have experienced a clear shift away from the traditional model of the nationally oriented “Rhenanian capitalism” to the model of globalizing, neo-liberal capitalism (or “Anglo-Saxon capitalism”). At the same time, interventionist nation states pursuing proactive economic policies have lost a lot of ground. Most governments see themselves in economic terms not as an authority that defines restrictions for commercial activity but rather as service providers that must optimize the conditions for global competition by way of greater flexibility, denationalization, deregulation, and tax cuts for business. The transition from the “Rhenanian” to the “Anglo-Saxon” model of capitalism has had serious consequences, especially in terms of employment conditions and labor relations. What is for the great majority of the population a core area of society and has in Germany been a traditional cornerstone of social integration has recently experienced dramatic distortions whose implications also affect the middle classes (Boltanski/Chiapello, 1999; Polterauer, 2004; more generally cf. Sennett, 2006). This involves not only an increase in precarious employment conditions but also escalating poverty, resulting in social exclusion, and a gradual polarization that gives rise to severe processes of disintegration (Castel, 1995; Schultheis/Schulz, 2005; Dörre et al., 2008). The new model is subject to criticism, not least due to these accompanying symptoms. This is evident in the analysis of daily newspapers and can also be inferred from a recent survey conducted in twenty countries for the World Economic Forum. Confidence in “global companies” is significantly lower than that in all other collective players (from “high” in the case of NGOs to “low” in the case of national governments). And there are indications of a downward trend: “Trust in global companies is now at its lowest level since tracking began” (World Economic Forum, press release, December 15, 2005, www.weforum.org). What insights does the research on business reveal with regard to the fundamental positions and attitudes of business elites related to social responsibility? Here are a few selected findings (Imbusch/Rucht, 2007b; cf. also Schmucker, 2005):

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Business Elites have very Disparate Views of Globalization. A closer look at the opinions expressed by the business world on globalization reveals that, in addition to the very wide range of views of globalization, there are divergent positions on the process of globalization. Those who unconditionally advocate the globalization process can be found in the Top 100 of German business, all of which have a considerable international dimension and are established leading players on world markets. For most of these companies, globalization is considered a natural form of internationalization; even if the executives stress that the costs and benefits of globalization could change in future. Accordingly, those in charge of these firms emphasize the “increased freedoms for the individual” and the potential for growth and profit for the company through free trade. For the majority of the companies, on the other hand, globalization is seen in rational terms as an inevitable consequence of worldwide market changes that has to be dealt with by employers and managers in order to survive. It is repeatedly emphasized that there is no alternative to globalization, but that there is a need to shape the latter. Only a small group of companies and managers have a skeptical attitude to the extremely varied advantages and disadvantages associated with globalization. There is, however, point-blank rejection of the arguments and actions of alter-globalization movements such as Attac or opinions expressed by the World Social Forum (Imbusch, 2007). The Public Debate over the Responsibility of the Business World is Increasing. As time passes, the social responsibility of business elites is becoming increasingly prominent in the public debate. The same applies for the opinions of business elites as expressed in the media. Since the mid-1960s, corporate social responsibility has become an increasingly important issue. This trend is probably related to the fact that, in an era of accelerated globalization, the behavior of business leaders is inseparable from issues concerning society at large, while it is becoming increasingly clear that the commercially oriented decisions taken by business elites have farreaching consequences for society. Although this was always the case to some extent, the consequences today – after the end of the era of full employment and widespread job security and after the end of the consensus over the “social principles of the market economy” – are far more negative, especially as the proposed formulae for resolving the crisis, if anything, appear to be exacerbating the problems. Accordingly, external assessments of business elites have likewise shifted from a slightly negative average rating in 1965 to progressively worse levels. The Environment and the Labor Market are the Prevailing Issues as Regards Corporate Social Responsibility. The period of analysis saw the clear emergence of two major issues in newspaper reports and within business associations. Problems related to employment and the environment, are by far the most frequently covered in stories about corporate social responsibility, even if with fluctuating importance over the course of time. When it comes to the issue of employment, in particular, business elites emphasize

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that adapting to the conditions of globalized competition manifests itself in technological developments and technical revolutions but at the same time calls for institutional adjustments – i.e. deregulating industrial relations and the labor markets – that more or less result as practical necessities. Critics, however, counter that this triggers a “race to the bottom” that would ultimately lead to conditions akin to early capitalism. Business Elites themselves are Assigned a Prominent Role when it Comes to the Issue of Social Responsibility. The analysis of corporate social responsibility as reflected in the two daily newspapers under examination showed that business elites are the most frequently heard voices. They are responsible for around half of all opinions on the subject of responsibility. The other half are representatives of the government, political parties, and the media. Representatives of industry associations play a more significant role here than corporate spokesmen. BDI, BDA, the German Chambers of Commerce and Industry remain as the central associations the spokesmen of the business community. A closer look, however, reveals significant differences in the positions of the individual associations. The positions assumed by the BDI, for example, are in general more radically free-market than those of the BDA. Another finding is that business elites generally tend to be mentioned within a context of problems and criticism rather than of success stories. Expectations with Regard to the Assumption of Responsibility Change According to Political Climate. Political constellations also have an effect on external expectations concerning corporate responsibility; expectations are higher when the Social Democrats are in power than under conservative governments. Self-imposed commitment of business elites to socially responsible behavior, however, is greater under conservative governments than under the Social Democrats. This is clearly reflected in a comparison of the era of chancellor Helmut Kohl with that of chancellor Gerhard Schröder. Under conservative governments it is also easier to defend the position that assuming social responsibility is a natural result of the pursuit of commercial interests and as such also contributes to the common welfare. Business elites appear less defensive in conservative-led eras and can therefore play down the potential conflict between commercial efficiency and social responsibility. Under Social Democratic governments, however, employers and executives face far higher expectations. Business elites react in different ways to such external expectations as regards their social responsibility (Imbusch/Rucht, 2007b). Over time, however, there is a growing willingness (rhetorically, at least) to assume social responsibility.

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There is a Huge Discrepancy between how Employers and Managers are Viewed by Themselves and by Others. There has always been a huge discrepancy between how business elites are perceived by themselves and by others (Scheuch/Scheuch, 2001; Hartmann, 2002). Employers and executives prefer to see themselves as contributors and leaders whose innovation, dynamism, and expertise serve the common welfare. They attribute their success to their own efforts, to a high level of motivation, hard work, and to their personality, which unites creativity, new ideas, loyalty, and integrity. Responsibility and a sense of duty rank high among individual values. High incomes are interpreted as a reflection of individual performance and a willingness to take responsibility; they reflect the significance of the position reached and at the same time symbolize the financial strength of the company. This very selfconfident view of their own professional group, however, is increasingly at odds with public perceptions of business elites (Hartmann, 1996; Scheuch/Scheuch, 1995). The latter tends rather to be characterized by words such as “crooks”, “greed”, “mismanagement”, “megalomania”, and “unscrupulousness”. It is as such not surprising that external assessments of business leaders’ actions have become increasingly negative and deviate substantially from how business elites view themselves. For example, when asked in interviews whether they are portrayed fairly in the media, the response of business elites was overwhelmingly negative. A particular grievance among employers is the media’s tendency to highlight specific cases of mismanagement or enrichment while seldom acknowledging the good work done by employers on a day-to-day basis or drawing attention to their useful functions in society. That said, a number of representatives – primarily from medium-sized firms but also from leading business federations – did emphasize that the negative portrayal was not solely the fault of biased journalists, but also a result of questionable behavior on the part of individual business leaders or entire companies. Isolated examples are by no means typical, argue industry representatives, who say that the media does influence public opinion in general and fuel envy in particular. Business Elites Call for Political and Social Reforms. Business elites emphasize the necessity of government reforms and claim that the welfare state is in need of “reorganization”. For years now, representatives of the big employers’ federations have in particular been calling for less government intervention and less regulation in connection with business activity. They want the state to limit its role – aside from its traditional sovereign activities (such as security) – to creating a “sensible” framework for free competition and otherwise not to be involved as an independent economic entity. The interviews revealed universal criticism not only of the hesitancy and slowness of reforms, but also of unions and labor movements deemed primarily or at least partly responsible for this. Their outdated slogans, unrealistic demands, and limited grasp of economic issues, say employers, impede progress toward preparing society for the future. Calls from business elites for reduced state involvement and their criticism of unions are based

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on the neo-liberal credo and/or arguments relating to practical necessities. Those who champion the neo-liberal credo are first and foremost those companies and sectors that are relatively strong competitors on the international market, while others often cling to open or hidden subsidies. The neo-liberal position also produces claims that a well-endowed welfare state paralyzes initiatives and individual motivation and therefore has to be cut back in times of global competition. Greater flexibility in employment conditions is likewise considered necessary in order to persevere in the face of global competition. A classic force-of-circumstance argument claims that “we” can no longer financially afford the welfare state in its current form due to demographic developments in the German society. Recent Years have seen a Shift among Employers and Top Executives toward Increasingly Radical Free-market Positions. We have recently seen a clear shift among business elites toward “more market”. The analysis of industry and media reports and the interviews has confirmed a recent swing among employers and top executives toward free-market positions. Our survey analyzed positions on various issues and subject areas that produce five fundamental social conflicts that can be defined according to the following pairs: equality vs. freedom, redistribution vs. reward, collective vs. individual responsibility, state vs. market, and voluntary vs. compulsory. One pole represents the Rhenanian Capitalism and the welfare state, while the other corresponds more to the Anglo-Saxon style of capitalism with its heavily liberal orientation. In all cases, the balance has clearly shifted toward the liberal/free-market end of the scale. This applies least in the case of equality vs. freedom, and most in the case of state vs. market. This is also reflected in the predominant social values and the political instruments derived from them. What we can see is a shift from the concepts of solidarity and state responsibility to individual responsibility and market-oriented control. These were accompanied by extensive semantic shifts with regard to responsibility. Whatever the issue, we see a stronger propagation of individual responsibility and a stronger emphasis on the principle of reward for performance. Both aspects are at the same time merely the flip side of pruning government activity and reinforce individual freedom vis-à-vis the concept of equality. In terms of the central tension between welfare state and neo-liberal system, business elites today exhibit an unmistakable tendency toward the neo-liberal side. This has incorporated as well a change in the semantic content of corporate responsibility itself; the definition of responsibility is becoming increasingly narrow, first and foremost applying to the preservation of the company, then the workforce, and only then to the social milieu or specific society-related problems (Bertelsmann Foundation, 2005). Significant Differences in the Degree of Responsibility and the Role of “Pressure” from Society. The disparity in the constellations under which employers and executives assume social responsibility or responsibility in areas not directly connected to the com-

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pany can be shown by several case studies (Imbusch/Rucht, 2007a). The scale of responsibility encompasses violating rules out of self-interest, defensiveness vis-àvis responsibility, cooperation under pressure, indications on a willingness to assume responsibility, quid pro quo activities, substantial concessions, and proactive commitment for public welfare. An essential conclusion to be drawn from these studies is that the activities of companies have, on the one hand, been by and large issue-specific, i.e. they responded case-by-case with respect to particular responsibilities assigned to them by third parties. On the other hand, it was often only pressure from society that prompted companies to act in some way responsibly. This pressure can arise from a specific group or organization or, alternatively, from employees. It can also manifest itself in the form of a critical public opinion. In addition, the analysis of publications of industry associations and media reports shows that autonomous, proactive involvement is the exception, whereas there has been in recent years a significant increase in non-committed signals and a restriction to symbolic actions. The Relationship between Globalization and Social Responsibility is Complex. The research project produced clear evidence that globalization processes and competitive pressure, on the one hand, and social responsibility, on the other, are not necessarily mutually exclusive, and form instead a complex mutual relationship. This is not only caused by the business world having many different definitions of social responsibility. Another factor of equal importance is that big companies enjoy relatively stable budgets for social commitments and – especially at the international level – make mid- and long-term commitments that are – at least temporarily –protected against the vagaries of economic cycles. The earlier supposition that social responsibility among employers and management would erode in the process of globalization due to high competitive pressure and cost rationalization could not be verified. Big companies, in particular, act as strategic players that are confronted with different challenges on the global market and therefore consider obligations to accept corporate social responsibility indexes or the Global Compact initiative as competitive advantages to attain solid market expansion. Respecting these codes also promises considerable image-related benefits. One may even say that globalization obliges companies to portray themselves as “good citizens” and to assume an active role of social responsibility – at least rhetorically but as well in real terms. However, there has been a serious shift in the semantic content of social responsibility.

5

Interpretative Perspectives

There is a striking difference between corporate activity on the “front stage” and what happens on the “back stage” (Goffman, 1959). Interestingly enough, the social involvement and the conspicuous demonstration of responsibility on the front stage correlates with a quite different policy on the back stage. It is the back

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stage where the enhanced power realized in the course of globalization is reflected in “sub-politics” that are serious challenges to states. The Front Stage: Social Responsibility as Part of Corporate Culture The majority of companies in Germany are involved in some form of charity. The larger a company is, the greater in general will be its willingness to assume social responsibility. Most of the firms in the survey are involved in social activities. Only a small number of employers and managers refuse social activities, citing the strained economic situation or simple disinterest. The forms of involvement are in some cases more visible, in others less conspicuous. Sometimes their involvement is made public, in other cases, it remains largely hidden. This applies both to large and small/medium-sized companies. Larger companies, in particular, provide details of their activities and responsibilities in specially prepared company reports, in order to give them greater transparency. A report on social responsibility will typically say: “Social responsibility begins in the company. In the first place, it comprises securing the long-term existence of the company and generating jobs and value added. It is expressed in the development of environmental and resource-saving processes, in the quality of products and services, and in comprehensive and transparent public reports vis-àvis the stakeholders.” (Deutsche Bank, 2003: 4) Not included in this narrow definition of responsibility is an additional range of activities that encompass more than immediate company-related factors: donations and sponsorship, independent initiatives and projects, active involvement in national and transnational organizations, foundations and charities, and the voluntary work of employees are generally cited as expressions of social responsibility (Bertelsmann Foundation, 2005). Though widely criticized, Deutsche Bank spends more money in absolute terms on cultural and social activities than any other company in Germany. Of the almost €70 million budgeted for 2003, 35 percent was assigned to “Social Affairs”, 35 percent to “Arts/Music”, 25 percent to “Education and Science/Technology”, and 5 percent to “Sustainability and Micro-Loans”. Even if these outlays appear financially impressive, they only become meaningful in relation to the profits made (Fabisch, 2004). If we look beyond the immediate concern of the companies under analysis, we find the following picture: The commitment of small and medium-sized enterprises (SME, with less than 100 employees) is far greater than that of larger companies (with more than 100 employees). Although they make up only one sixth of all contributions in this area, their spending for social activities as a proportion of their turnover is around four to five times higher than that of larger firms. For SMEs the average proportion of turnover is 0.24 percent, for larger firms just 0.05 percent (IfM, 2002; Dresewski, 2004). When we consider where and how employers and executives participate in social commitment, social issues are by far the most popular area (87 percent), followed by culture and education (76 percent), and sport (66 percent). Corporate

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commitment is less common in the areas of science/technology (42 percent) and the environment (31 percent). Traditional formats enjoy the greatest popularity. Four fifths of all companies provide financial or material donations. Three quarters of the firms offer free services (apprenticeships, training courses, etc.). In many cases, employees (almost 50 percent of firms) and management (about 30 percent) are released from work in connection with Corporate Social Responsibility (CSR) activities. In over half of the companies, executives themselves are committed on a voluntary basis (IfM, 2002). Given this significant degree of social commitment, employers and executives are unlikely to be accused of insufficient social responsibility or a complete lack of sensitivity for social problems. However we have to assess the reasons why employers and executives try to find solutions to social problems as well as the frequency and duration of these activities. The empirical results show quite clearly that social commitment is not born from altruism and pure conviction. Instead as surveys on corporate citizenship in Germany show (e.g. Maaß/Clemens, 2002; Seitz, 2002; Westebbe/Logan, 1995), most major industrialists and top executives see their activities in terms of an investment in their social milieu. Thus they try to secure the foundations of their own survival and to accelerate expansion. According to them, helping to reduce social problems and helping to develop their social environment is in the best interest of companies (Frankfurter Aufruf, 2003). If we then ask what companies expect from their social commitment, it becomes clear that three quarters of companies consider the improvement of their public reputation a priority; their commitment serves first and foremost to improve their image. Secondary objectives are those concerning the workforce (the motivation and retention of employees, and an increase in employee satisfaction: 59 percent), customers and sales (product and corporate advertising, better relations with business partners, customer loyalty, enhancing sales channels: 53 percent), and the personal goals of management figures (personal interest in the relevant area: 47 percent). Ethical incentives, commitments without any strategic considerations, and the promise of at least indirect benefits, are important for just a quarter of the companies. The primary function of corporate social commitment is thus to win public exposure for the company’s products and boost its image with an eye to the concerns of the community. In the case of larger companies and global players, these activities serve to complement other instruments related to communications and labor policy. They are an integral part of public relations and corporate policy (environmental reports, reports on Corporate Social Responsibility and Corporate Citizenship, sustainability reports etc.) (Daub et al., 2003; Schmidt/Beschorner, 2005) and help to improve the image and corporate reputation, which is increasingly important in a global world (participation in UN-led initiatives such as Global Compact – Fröhlich, 2002; Hopkins, 2006). Within the context of the globalization process, the need to be perceived as not just successful but also socially responsible, businesses must also be seen in terms of integration in an evolving

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global society. As global politics become increasingly privatized (Brühl et al., 2001, 2004; Beck, 2007; Aglietta/Rebéroux, 2005), the new powerful centers that have a growing influence on the developments of a future multi-layered world society (following Münch, 1998, 2001) are not democratically legitimized institutions. The declared intentions and the non-verifiable self-imposed obligations let open to what extent employers and executives live up to their responsibility (Alfred Herrhausen-Gesellschaft, 2004). The Back Stage: Sub-politics and its Accompanying Symptoms In light of these facts, we cannot say that companies show no social commitment or do not at least exercise certain forms of social responsibility. Nevertheless, our analysis of corporate social responsibility so far has been concerned with what Goffman calls the “front stage.” But there is also a “back stage”. This centers on what Ulrich Beck summed up as “sub-politics,” i.e. that in the course of globalization the political agenda is defined not only by traditional political institutions but also by a variety of additional players who compete “to shape and persuade political power ” (Beck, 1993: 162). In the last decades, politics have begun to move outside formal areas of power and hierarchies, becoming a far-reaching “collateral consequence” of the uncoordinated actions of companies, commercial organizations, and international institutions (Beck, 2002: 39). What are the foundations of the power of business and how can business implement such sub-political strategies? On the one hand, this power is based on the strength and importance of a company on the market place and on the awareness of being a recognized and important player in an evolving global society. This would be the positive economic side of their power. On the other hand, it is, based on the intimidating potential that results from economic globalization, i.e. from the “orchestration of the threat” (Beck). Companies have more scope than ever for splitting their value-added activities and providing or buying products and services where conditions are most favorable. Currently, they are bound by hardly any political condition in their worldwide activities; they can choose alternative legal systems according to economic favors and thus circumvent the sovereign power of the nation state (Engelhard/Hein, 2001). Jobs and production sites are being relocated on a significant scale even by small and medium-sized firms to locations boasting greater cost-effectiveness, fewer employer stipulations, and minimal tax burdens (Wortmann, 2003; Kabst, 2004), meaning that the territorially rigid nation states can be played off against each other. Given the variety of arguments, the looming power of business as such lies in not investing, taking jobs away, or not creating new jobs, paying no taxes, and thereby undermining the foundations of nation-based societies and politics. The power of enterprises is based on the “exit option” (Hirschman) vis-à-vis the nation states. This seems to be the anti-democratic, questionable, and negative side of the economic power.

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Four distinct areas can illustrate the far-reaching political consequences of subpolitics: the concept of state, political alignments, ways of life, and social inequality. For years, employers have been undermining the scope of government actions not only through their power to withdraw but also through a language style that attacks state intervention in society, urges the grinding down of government activity, and the restriction of the latter to basic security-related functions, and propagates new, less extensive forms of state welfare. The objective here is not so much a kind of minimal state sovereignty according to the liberal “laissez-faire state” of the past, but the transformation of the state into a “global market state” or a “national competitive state”. As a result, the role of the state as a counterbalance to a globalized world economy is replaced by its new role as an active player in the global economy, meaning that competition for business investment, the creation of competitive advantages, the removal of barriers to investment, general deregulation, and neo-liberal reformist policies now comprise the absolute agenda of state politics. Sub-politics means here that the state can no longer afford to disregard specific economic interests. Economic globalization has triggered a crisis of the structures of the welfare state and the political players of the Keynesian post-war compromise. In the eyes of employers, unions are no longer partners but rather barriers to investment, insofar as they insist on pay increases, autonomous wage bargaining, agreements according to activities, and the right to strike, i.e. the very same social achievements that conflict with the flexibility demanded by a globalizing business world. In the eyes of the business community, unions are frequently seen as relics from the past whose “politics of self-interest” gives them substantial blame for unemployment and other social problems. Their loss of power and influence is tangible at all levels, while employer federations have for some time now enjoyed the momentum as regards public opinion. Sub-politics of globalization means here that areas of social conflict with labor unions can be circumvented or negated by citing practical constraints and necessities. As a consequence, formerly legitimate interests can be disregarded as no longer relevant. A further aspect of corporate social responsibility can be explicated in connection with the ways of life facilitated or advanced by globalization processes. While corporations turn their backs on the nation-state set-up through the relocation of production and jobs, management does the same by adopting specific customs and lifestyles that comprise a dismissal of the home country. Specifically, the cosmopolitan orientation of employers and executives means that global players have hardly any ties to a particular place. Zygmunt Bauman referred to how the conditions of a fast-changing modern society see the settled majority come under the control of a nomadic extraterritorial elite (Bauman, 2000). The latter’s mobility and lack of fixed domicile means the loss of social ties and personal obligations toward particular production locations and their people. Their loyalty toward state bodies declines as globalization dissolves the nexus between above and below, between rich and poor, between globalization winners and globalization losers, ultimately leaving no more arenas of obligation in which balance and social justice

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could be contested (Beck, 1997: 100-101, 166). The flipside of the coin are increasingly instable ways of life that are characterized by general insecurity (Bauman, 1999, 2008). The latter is the result of efforts on the part of industry, to deregulate, to become more flexible, and to rationalize; and of the reduced scope for state action. The increase in atypical and temporary employment conditions, the working-poor syndromes, and ever widening holes in the social net mean that this insecurity is reflected among the concerned individuals in insufficient future sustainability, i.e. an inability to plan ahead and take charge over the development of their lives (Sennett, 1998; Bourdieu, 1998). The zone of precariousness and vulnerability (Castel, 1995) is expanding and leads to an erosion of the societal middle classes, where, even outside traditional problem groups, the feeling of being under threat of exclusion and an awareness of one’s own potential superfluous character are growing (Bude/Willisch, 2008). Sub-politics here comprises what referred to as the political economy of insecurity: rendering expensive tools of discipline not necessary by helping the market version of freedom to gain acceptance (Bauman, 1999). Last, but not least, the kind of social responsibility on the back stage is also evident in the very disparate but, as a whole, clearly expanding range of legitimizations of social inequality. There has been a significant increase in the latter over the last few decades at both the international and national level. Unemployment and poverty are becoming increasingly detached from traditional class and stratification structures and have affected the middle classes for a rather long time period. The process of individualization means that what people used to be able to deal with collectively by way of guaranteed solidarities is now experienced as one’s personal fate and as individual failure – not least because the neo-liberal reforms are accompanied by an aggressive promotion of performance principles and a stronger emphasis on personal and individual responsibility. Society now follows new models of entrepreneurship, market/competition apotheoses, and success as opposed to performance (Barlösius, 2001; Neckel, 2001; Bröckling, 2007). Elitist concepts and elite discourses have risen from the ashes. At the same time, welfarestate safety nets are discredited. Sub-politics in this context means the legitimization of social inequalities as natural and, in the case of dynamic liberal market economies, absolutely indispensable incentives. One can find a major shift in the semantics of justice, equality, and solidarity as well (Lessenich, 2003; Lessenich/Ostner, 1998).

6

Conclusion: Landmark Change in the Understanding of Social Responsibility of Business Leaders

Even if there was no sudden turning point, it is quite obvious that the end of the “Social Democratic century” (Ralf Dahrendorf) in Germany and comparable industrialized nations has shown signs of a profound change, with larger companies undergoing international operations and refocusing their approach on the issue of

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social responsibility. On the one hand, and further back in the past, companies did follow the imperative of profit maximization. Provision of social benefits and demonstration of responsibility were rarely based on corporate initiative – they were generally won by the efforts of the workforce, the unions, or an interventionist state. At the same time, the model and the very real figure of the caring employer always existed: the patriarch, the patron. He at least enjoyed respect and recognition within the middle classes and on a local basis – but to a lesser degree from his own workforce. During the last years, however, features such as “character” or “personality” became less significant in the self-image of business elites, triggering elements related to functional efficiency (Unger, 2003). Two other groups have once and for all superseded the traditional image of the employer. The first are investors, prototypically represented by the administrators of large Hedge Funds and the private equity departments of major banks, which are on a permanent look-out for the most lucrative forms of investment for their capital (Knorr-Cetina/Preda, 2004; Windolf, 2005). The other group comprises a younger generation of managers who perform specific tasks on a temporary basis. As financial returns have become ever more important and the expectations of shareholders have to be accounted on a quarterly basis (Identity Foundation n.d.), the horizon of their action is becoming increasingly short-term. As the management of large firms is subject to a permanent process of evaluation, top executives are both a driving and a driven force on the increasingly globalized market. Given this context, the approach of company executives toward the issue of social responsibility is generally different to the situation a few decades ago. In the heyday of the welfare state, social responsibility was seen as a moral obligation that meant on an individual level, for example, a willingness to pay substantial taxes and social contributions, and on the state level caring about public goods and social welfare. The underlying principles were that (a) social responsibility was an obligation for all parties, but especially for the wealthy, and that (b) the underprivileged had a right to obtain transferred benefits. These assumptions were gradually undermined by the perception of social responsibility as an option for private individuals. This means that social responsibility has become a voluntary act for individuals, associations, and companies that may or may not be exercised – but not imposed by the force of law or binding obligations. This attitude signals a shift away from the European model of solidarity (based on mutual expectations and obligations) to the US model of charity: solidarity based on pity and on the goodwill of those who give and the gratitude of those who take. This shift must at the same time be seen as connected to a change in the historical time period, i.e. from the widespread legitimacy of social inequality to the specific emphasis on natural and individual inequalities by the elites. Although their choice of words may vary, elites interpret responsibility in terms of purely tactical or strategic considerations with regard to external assessments of the company. The question of what society and its disadvantaged groups need most is overshadowed by the question of what kind of involvement is beneficial to the individual company, sector, or the business community as a whole. “Image con-

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struction” becomes prominent in its role as a competitive factor. In this context, one must consider the new concepts of corporate social responsibility as well as corporate citizenship and participation in the Global Compact (Global Compact Office, 2001; Whitehouse, 2003; Christian Aid, 2004). These concepts can be interpreted as a response to the growing criticism of corporate behavior. Today’s business elites represent significantly adjusted models of social development that are more closely oriented to the Anglo-Saxon form of a free-market economy than to the old Rhenanian model of capitalism. The harsher the market becomes, and the greater the prevalence of a lack of values and restraint (of which there are many different examples, from exorbitant management bonuses and severance packages to falsified accounts, fraudulent behavior, and improper conduct on the part of management and directors), the more employers have to do for their image. Saying this, the aim is not to disregard the beneficial social activities of companies but to put them in context. Linking up business objectives and public interest factors has in fact – on the surface, at least – become an expression of a well-considered strategy and an integral part of corporate culture (Kotler/Lee, 2004). Media analyses, interviews, and case studies on different aspects of social responsibility show that generalizations about specific sectors of business or “the business community” as a whole are problematic. Therefore any summary of the findings presented would need to make more distinctions than the scope of an article allows. Approaches of social responsibility encompass outright rejection, non-committed signals, quid pro quo activities, substantial concessions, and even wholly unsolicited proactive social commitment (Imbusch/Rucht, 2007a: 9–30). Even when we assume that social responsibility is only indirectly connected to globalization, a systematic survey of empirical allocations of individual actions was not possible, there is a clear underlying trend. Citing increasing economic pressure from domestic and global competition, a clear majority of business elites refuses to assume social responsibility as an obligation. Notwithstanding those who claim social responsibility is unaffordable for economic reasons or is not their job, the majority of companies does acknowledge some kind of responsibility. This has no longer to do with the traditional concept of responsibility with its high degree of commitment, due to the fact that today responsibility is defined differently and is at best considered something to be performed on a voluntary basis. Under these circumstances, the interpretation of social responsibility can even be reconciled with the neo-liberal credo, and business leaders can portray specific painful measures or decisions as examples of social responsibility. They can thus consider the relocation of jobs, the search for a lean state, and the demands to scale down the welfare state and to break up outdated structures in the name of a more dynamic market economy in terms of responsibility. Here we have to deal with conflicting and clearly different concepts of responsibility. In the future we might be confronted more than ever with huge profits, a considerable return on investment, the revalorization of entrepreneurial activities and the promotion of management spokesmen to chief executive officers on the one side, and doubtful ac-

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quittals in corruption trials, mass dismissals and full-hearted commitments to corporate social responsibility on the other side.

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Westebbe, Achim/Logan, David (1995). Corporate Citizenship. Unternehmen im gesellschaftlichen Dialog. Wiesbaden: Westdeutscher Verlag. Whitehouse, Lisa (2003). “Corporate Social Responsibility, Corporate Citizenship and the Global Compact. A New Approach to Regulating Corporate Social Power?” Global Social Policy, Vol. 3, 299-318. Wieland, Josef/Conradi, Walter (eds.) (2002). Corporate Citizenship. Gesellschaftliches Engagement – unternehmerischer Nutzen. Marburg: Metropolis. Windolf, Paul (ed.) (2005). Finanzmarkt-Kapitalismus. Analysen zum Wandel von Produktionsregimen. Wiesbaden: Verlag für Sozialwissenschaften. Wortmann, Michael (2003). Strukturwandel und Globalisierung des deutschen Einzelhandels, WZB-Discussion Paper, SP III 2003 – 202a, Berlin (Germany).

About Breaking the Bread: Corporate Social Responsibility in the Light of Catholic Social Teaching Christine Gröneweg

Introduction In times of global financial and economic crisis, the demands on firms to be socially responsible rise even more. Multinational corporations which – besides recycling material or producing non-animal tested products – are also honest and reliable, caring for their employees and stakeholders, are the kinds of firms society nowadays asks for. Altogether, organizations which go far beyond the requirements of law are generally seen as good corporations and those which do not as bad companies. These attributions to responsibilities are discussed under the label of Corporate Social Responsibility (CSR). Judging organizations as good or evil ones and questioning general responsibilities of corporations are closely linked with terms like consciousness, morality, virtues, norms and justice. Thinking about these categories, Christianity as a religious superstructure for telling right behavior from wrong seems to be linked to the patterns of CSR. Catholicism's vision of human beings and its view of business activities and society are worth contrasting with CSR. Focusing on Catholicism does not mean that other religious confessions are not worthy of consideration when it comes to explaining what “good” organizational behavior could look like. Confucianism, for example, could also provide a relevant frame for business to act in a virtuous way, but is not of relevance in this essay. It gives a interesting meaning to the word "firm", considering that the word company (compagnia) originates from two Latin words: cum (with or when) and panis (bread) (Micklethwait/Wooldridge 2003, p. 7 et seq). The first companies to be established in medival Italy were family-owned and operated in joint liability, so trust was a high virtue among the partners. Hence the original meaning of the word "firm" is, literally speaking, breaking bread together (Micklethwait/ Wooldridge 2003, p. 8). Breaking the bread has a highly spiritual impact. As the holiest part of the Lord's Supper, breaking the bread is the holiest sacrament (in a Catholic service), referring to the final meal Jesus Christ shared. These days and throughout the last few centuries, we know that most companies neither "share bread" with anyone but their shareholders nor even serve water for free" if it is not for an economic aim. As there are three approaches to CSR, the instrumental, descriptive and normative, there are different proposals and points of views. This paper focuses on

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the last one, the normative approach. The aim of this consideration is to examine Corporate Social Responsibility in the light of Catholic social teaching. Both approaches could offer a normative framework for corporations to act in an ethical way. A framework which, for example, Küng asks for in his work on Global Ethic or World Ethos (Küng 1996). The important question in this context is where should these frameworks or norms come from.

Corporate Social Responsibility in Organizations Corporate Social Responsibility (CSR) arose during the last century and has been discussed intensively over the last 30 years in academic literature (see, for instance, Carroll 1979; Freeman 1984; Wood 1991). During the last decade, however, empirical research has replaced theoretical debate on the topic of CSR (e.g. Backhaus et al. 2002; Jones and Murrell 2001). As a (normative) framework and partial management system, the meaning of CSR has grown explicitly for organizations in the globalised world and had let to changes in Human Resource Management practices (e.g.Vogel 2006; Preuss et al 2009). Ranging from codes of conduct to specific strategic management steps, CSR covers a vast spectrum. Although heavily criticized (see Gilbert/Rasche 2007; Salazar/Husted 2008; Kuhn/Deetz 2008; van Oosterhout/Heugens 2008), CSR is making its way into management studies. It is generally agreed that there are several definitions of CSR, each of which might be biased by several interests (Dahlsrud 2006, p. 1). Two of the most popular definitions of CSR are cited here as examples. CSR is... "...a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis.” (European Commission 2002, p. 7) "The social responsibility of business encompasses the economic, legal, ethical, and discretionary expectations that society has of organizations at a given point in time” (Carroll, A.B. 1979, p. 500) Firstly, the general agreement on CSR is that it is practiced on a voluntary basis and is not regulated by law. Secondly, CSR is about business and its interdependencies with stakeholders, the environment and society as a whole. Therefore CSR constitutes the point at which society‘s demands and corporate obligations meet. CSR has many faces, covering issues like profit-making, stakeholder relations or sustainability. Thus the vocabulary ranges from corporate accountability, business ethics, corporate responsiveness and social responsibility to corporate citizenship or corporate volunteering. To be sure, this number of labels does not shed much light on the dark. As said, CSR is not a new idea.

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Fundamentally developed during the 1950s in the USA by Bowen in Social Responsibilities of the Businessman in 1953, he points to the obligations business (outcome) has to society (Carroll 2008, p. 25 et seq). But sustainable business ideas still seemed to be exotic in the following years, considering Milton Friedman‘s statement: "The Social Responsibility of Business is to increase its Profits" (1970). This idea became famous as the Shareholder Value Theory. Nevertheless, the concept of Corporate Social Responsibility breaks through this self-centered view of the firm and tries to go beyond more than just a shareholder‘s interests. As the question of the moral behavior of organizations grew and the framework and guidelines accrued, it is worth pointing out the opinion the Roman Catholic Church has on this topic. Since the early 1960s, the Catholic Church has increasingly spoken about social questions and raised its voice to underline the responsibilities and obligations a company has to its environment. Whilst CSR is not the only framework that normatively concentrates on organizational responsibilities, German business scientists – throughout the middle of the 20th century – also spoke up on the subject. CSR and its sub-forms are seen as perceptions of an important regulatory element in society to attain a win-winsituation for both (organizations and society) by allowing companies to maintain their competitive position and reduce externalities for the environment (Habisch 2008, p. 599). Thus we should first take a look at the Catholic doctrines. Secondly, we should consult certain agents in German business administration such as Wilhelm Kalveram, August Marx and Guido Fischer to point out the basic ideas of Christian values in business. Thirdly, in addition to that, we should consider the recent papal speech by Benedict XVI.

Catholic Social Teaching The Pope's letters to the world, known as the social encyclical letter, try to focus, among others, on the question of good work, human labor and the meaning of business as a whole. As Drumm (1993, p. 36) notes, the Vatican's letters address modern topics and try to answer contemporary relevant questions and needs of society or give instructions on behavior. In the context of a firm's responsibilities, it is essential to consider Catholic social doctrine. The timeless missions of the Gospel are the basic elements of Christianity. As a set of principles it is known as Catholic Social Teaching. Rooted in periodical papal encyclicals, it seems to be continuously in progress. Catholic Social Teaching (CST) addresses the social issues which are faced in the rapidly transforming environment of the present day; it is therefore extensively humanistic (Dorr 1992, p. 366). During the last century, papal encyclicals, Vatican councils and episcopal conferences have discussed urgent human issues with international relevance (Hackett et al. 2006, p. 2 et seq). Subjects such as human rights, economic welfare, participation and peace are general issues, but call for people of every faith to work together to avoid injustice and eliminate poverty (e.g. Erisman,

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2006, Melé/Fontrodona 2006, Lehmann 2006). Catholic Social Teaching is characterized mainly by four social principles of rights, responsibility and justice, which determine how mankind should live together: Common Good, Solidarity and Subsidiarity, and Participation. It is extremely important in the context of corporate responsibilities to mention that for the Catholic Church, profit-making is not a bad thing in business. It is essential for society and individual well-being (Alford/Naughton/Naughton 2001). Common Good On the subject of the Common Good, it is important to note that "business is not responsible for the common good; it is responsible to the common good" (Alford/Naughton/Naughton 2001, p. 41.). This means that business action does not primarily determine the common good, but must be responsible and supported throughout society. Everybody has the right to participate in a community. This especially includes the poor and the vulnerable members of society (Erisman 2006, p. 12.). Solidarity and Subsidiarity Solidarity and subsidiarity complement each other. No matter where we live and how different we are, the Gospel sees us as sisters and brothers. The interdependence in the principle of solidarity leads us to support the development of people and institutions at local, national and international level – always bound to a community. It means the responsibility for each other. Subsidiarity defends to pass powers downwards or appropriate competencies from the bottom up (Chamberlain 2004, p. 36). This means that a higher-level institution should not interfere in the matters of a lower-level institution, but should support it in the event of need. Subsidiarity strengthens and esteems the individual's skills. Hence, solidarity and subsidiarity form the foundation of communities in society (Santos/Laczniak 2007, p. 3). Participation This very recent concept in CST is the principle of participation. It states that it is a Christian's duty to participate in organizations and society. During the 1980s and 1990s, the papal call by Pope John Paul II (John Paul II 1981; Chamberlain 2004, p. 35) extended this duty to participate to working life. He declared – briefly spoken – participation a co-determination right and called for the right of employees to unionize. His Gospel message possibly had "political effects in Eastern Europe" (Dorr 1992, p. 366). In this context, it is essential to refer to the Polish Solidarność movement during the 1980s and explain the political intention John Paul II might have had to his mother county of Poland. His key in this context – in turn – are the principles

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solidarity and participation (Dorr 1992, p.303 et seq). As the Poles turned “to the Church in symbolic opposition to the communistic authorities” (Eberts 1998, p.820), the Catholic Church in Poland had consuetudinary strong influence to the society. It has been one of the central forces of cultural and social change and modernization during the 1980s (see Ellis 2005, p.24 ed seq; Eberts 1998). Solidarność (the polish word for solidarity) was the first independent labor union in communist Poland. It was founded after several serious strikes and reprisals towards workers and quickly grew into a broad movement in society during 1980. Therefore it had far-reaching consequences. One of which might have been the encyclical “Laborem Exercens” (On Human Labor) which offers an analysis of the nature of human work and how society has to be organized (John Paul II 1981; Dorr 1992, p.304 et seq). As it put the Polish government under pressure, the labor union Solidarność was banned in 1981 due to the influence of the Soviet Union. Advocated and morally defended by the Catholic Church (a role the Vatican officially never admitted), the Solidarność movement is said to mark the beginning of the end of communism in Poland and Eastern Europe.

Religious Impacts on German Business Administration during the 20th Century Although Christianity and especially Catholic doctrines have become widespread, their impact on sciences such as business science and sociology has been negligible. Famous figures such as Eugen Schmalenbach, Wilhelm Rieger or Erich Gutenberg dominated the scene, particularly in German business science of the 20th century. These representatives prevailed by proclaiming a more or less scientific management view (e.g. Bea/Dichtl/Schweitzer 2000). The question about what business administration should(n’t) consider is still relevant. Experts such as Horst Albach proclaim that there is no need for ethical norms in business science (Drumm 2005, p. 665) and demand a value-free science. Economic criteria and market regulation itself are sufficient for business decisions in corporations. This point of view seems to dominate until the 1980s. But normative business administration has historical tradition in Germany, although this has been mostly forgotten nowadays. Thus Catholic-influenced management theorists such as Wilhelm Kalveram, August Marx or Guido Fischer have been members of a minority. Hence the body of thoughts of Catholic Social Teaching has been unable to establish itself in German business administration. These approaches were unable to emancipate themselves from the scientific schools of Schmalenbach and, later on, Gutenberg and were prejudiced against as being non-scientific. Coined by Christian ethics and moral philosophy, these normative approaches comprise foundations of contemporary Corporate Social Responsibility and Sustainability. These important German advocates are analyzed in the following paragraphs.

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Wilhelm Kalveram Wilhelm Kalveram (1882-1951), one of the most popular normativists of business administration in Germany, bases economic action on Christian values (Kalveram 1949, p. 7 et seq). For Kalveram, the economy and business are intrinsically bound with the whole of human life. He does not see the economy as a parallel universe to culture, but as one root of human society (Kalveram 1949, p. 12 et seq). Duties and functions of business are part of human aims. As a matter of fact, the relations between economics and moral order – economics and Christianity – are nothing strange or unlike; he considers them to be obvious and essential. Economics as a neutral and independent part, excluded from all other spheres of culture, is not the fact reality teaches us. In this connection, the economy and business administration, Kalveram claims, should learn again to be part of society as a whole and its cultural context. For Kalveram, moral order is an area of the world order based on a theistic world view. Humans, (wo)men with a free will, do not act instinctively and carnally like animals. Man is driven by judgment and understanding since these laws and norms are accepted by his consciousness and influenced by the Will of God (Kalveram, 1949, p. 10 et seq). Plainly, throughout his work, Kalveram demands that the values and aims of business be connected to society and not to be untied from it. He sees the moral order of society as a scale for business action. He believed that what might be a wrong measure to the statues of society could not be right from the economic point of view. Kalveram obviously points to facts as fraud, greed, exploitation etc. which he, not by chance, intends to hint at the seven, capital sins. "Act in the economy economically!"1 (Kalveram 1949, p. 19; Kalveram 1951, p. 18) is his virtuous sentence combining ethical and Christian values. Kalveram in particular points out an ethic of Christian work convictions and refers to the papal encyclicals, for instance, of Pope Leo XIII. and Pope Pius XI. (Kalveram 1949, p. 47 et seq). Considering the needs of workers (employees), distribution of salaries and minimum wage, he puts the focus of business on the employees (labor as a production factor) (Kalveram 1949, p. 47 et seq). He stresses that labor and capital complement each other. All working conditions should be designed to allow an employee to gain job satisfaction by developing his personality, save his own prosperity and perform well at work (Kalveram 1949, p. 47 et seq, 66 et seq, 91 et seq). Referring explicitly to promotion, social welfare, the ethnicity of the workplace, co-determination (work council, labor unions), social justice and macro-economic issues such as a social market economy (soziale Marktwirtschaft) vs. a planned economy (Planwirtschaft), Kalveram creates a philosophical framework, a Christian order of society, that seems to harmonize economic efficiency and ethical norms, which is, to his mind, the nature of human beings. 1

"Wirtschafte wirtschaftlich" (Kalveram 1949: p. 19) and "Wirtschafte wirtschaftsgemäß" (Kalveram 1951: p. 18)

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August Marx August Marx (1906-1990), a scholar of Wilhelm Kalveram, was the first holder of a Chair of Business Administration, esp. Human Resource Management (HRM) and Industrial Science, in Germany at the University of Mannheim. He was a decisive figure in making human resource management (HRM/Personnel Management) part of business administration and contributed widely to the contents of contemporary HRM. Extensively influenced by his teacher Kalveram, he makes a clear reference to the Bible and Catholic Social Teaching (CST). The starting point of his argumentation is his view of the "economy as a function of culture" (Marx 1962, p. 9 et seq). According to Kalveram, Marx sees business as a sphere of society and a cultural framework. The economy does not serve itself. Its aims are to satisfy human needs and achieve prosperity (Marx 1962, p. 17 et seq). Considering Kalveram’s remarks, his work contains no novel ideas. Instead, he substantiates his statements and develops a theoretical view of business action (Marx 1962, p. 29 ff). He presents a philosophical concept of business science. Rules and scales of economic activities are, as above, results of moral duties, ethical norms (of society) and especially business ethics (Marx 1962, p. 35 et seq). Human or individual action is bluntly oriented to its cultural (Christian) environment. Although individual activities might fail, man is never free or untied from society. Conversely, the same is forced in an economic context (Marx 1962, 59 et seq, 64 et seq.). Marx refers to God's word in the Holy Bible (1962, p. 97 et seq) and compares the everyday sorrow of human subsistence by referring to the supply of daily bread. Symbolizing the question and sorrow about the “daily bread” (täglich Brot), he puts us human beings back at the center of the production process. He sees the remedy of an argument of materialism in the proclamation of the Gospel. Working out clearly the meaning of the prophet Jeremy (Book of Jeremy), Marx transfers the meaning of God’s word to business administrations and the economy. It is man's duty to educate man from the word of God. Therefore he can deal with temptations and wealth beyond a materialistic way of thinking (Marx 1962, p. 121). This manifestation can be implicitly seen as a demonization of the economy itself. Extending this view, Marx also points out that the environment – formed by men – influences moral human activities significantly, too. Corporations are an important factor of education and as such influence individuals, in particular, employee who are – to be redundant – part of society, so business affects society and vice versa. As a matter of fact, Marx proclaims evangelization as the solution for forthcoming economic pressure. This shows clearly that Marx, who was closely bound to the Catholic Church, appears even more romanticized than Kalveram.

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Guido Fischer Guido Fischer (1899-1983), another leading figure in German business science and professor at the University of Munich, also promoted an ethical normative theory of the firm. On his initiative the first German periodical for human resource management, "Mensch und Arbeit" ((Hu)man and Labor), was founded, the title being representative for his legacy. In almost the same manner as Kalveram and Marx, he exerted the Catholic guiding principles for his theoretical framework, focusing on the organization as the area for the implementation of (Christian) social principles. Although his creative career coincides in time with that of Marx, they never seem to have entered into discourse with each other during their work. Referring to the Holy Bible and the Christian values, he remarks at the beginning of this work in the late 1940s that economic activities ought to have an ethical guideline. Claiming that the value-free agents of business administration put capital at the centre of economic activities, he pleads for the human being to be at the centre of all thought in business administration (Fischer 1948; p. 118). Interestingly, in his ongoing work, (Fischer 1952 a; Fischer 1952 b) Fischer does not note the Christian background specifically. In accordance with Kalveram and Marx, Fischer sees corporations enmeshed in society (Fischer 1952 a, p. 262; Fischer 1952 b, p. 482; Fischer 1974, p. 8). As the corporation is a place of social community, it becomes an organ of society, inseparably bound to it. But Fischer draws a line between his work and that of Kalveram and Marx by extending his thoughts towards psychology and sociology. His work develops into that of a scholar, pointing out the interactions between business administration, industrial psychology and industrial sociology (Fischer 1952 a, p. 258 et seq). In his view, the lessons learned from psychology and sociology are efficient for leaders in organizations. An organization builds on sociological cognitions and, basing its activities on sociological principles, offers beneficial employment relations, allows salaries to be earned in accordance with performance and is aimed at maximizing a firm’s profitability (Fischer 1952a, p. 261). Guido Fischer creates a new social order in which materialistic thinking is not satisfying. To his way of thinking, organizations and business economists always need to include the human being with his personality (Fischer 1952a; Fischer 1974, p. 8). He criticizes the Tayloristic developments which accompany labor division (Fischer 1952a, p. 255). Fischer believes that if a corporation itself is formed socially – as, in his sense, it must be formed by the Christian virtues of care, solidarity, subsidiarity, independence (Fischer, 1952a, p. 261) – it sets a good example for action in society (Fischer 1974 p. 8). Action in the economy is above all the cohabitation of all humans (Fischer 1952 b, p. 483). In this, his general ideas conform to those of Kalveram and Marx. Interestingly, John Paul II readopted the same idea of first labor, then capital thoughts (Fischer 1948, p. 119 et seq; Fischer 1952b, p. 478 et seq) in his papal letter Laborem Exercens more than 30 years later. The economy is not an automatism that works separately from human beings. In contrast, say, to

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Gutenberg's and other value-free, objective exponents, Fischer sees that choices of mediums are not just functional, but need to be oriented to the human being. In the sense of movement in human relations, management policy ought to be reorganized in an anthropocentric way (Fischer 1948; Fischer 1952a, 1952 b). In conclusion, his anthropocentric way of thinking seems to promote the improvement of working conditions and fair treatment of workers and is incessant in transforming the labor conditions of (his) time (Fischer, 1952a, p. 255 et seq). One point needs to be made about Fischer’s work. In his work and statements, he barely provides references or proofs. This possibly makes his thoughts difficult to understand and his concepts hard to refute.

The Pope in 2009: Benedict XVI's Voice According to Drumm (1993), who strained selected papal documents to outline the meanings and consequences the papal papers had for (German) HRM – here, the recently published papal encyclical is drawn on to summarize what is said about corporate responsibilities – the basic elements of Catholic Social Teaching (solidarity, common good, participation, good working conditions and workers' rights etc.) could also be seen as foundations for doing good business when the principles of Corporate Social Responsibility were observed. Pope Benedict XVI delivers a severe lecture to his believers: In his third encyclical in all, but first social encyclical, "Caritas in Veritate" (Charity/Love in Truth), he sets play on the discussion between moral action and responsibility (of the individual and business) in times of financial and economic crisis. It is ambitious for the letter to address "all people of good will" (Benedict XVI 2009, Heading). As Ockenfels admits, it has always been hopeless to pursue the malevolent (2009, p. 242). This statement gives a foretaste of how ambitious the Vatican postulations must be to realize. On matters of responsibility and moral issues, the Church is a legal transmitter. But as a global player, it is doubtful whether the Catholic Church itself acts as ethical and responsible as its teachings proclaim.2 Nevertheless, the papal letter gives evident thought on how business can overcome the current crisis by combining human norms and virtues with economic regulations. "Corporations aren‘t (doing) charity" (Ockenfels 2009, p. 242). And as stated, the majority of them are not "breaking bread" with anybody except their shareholders. But, since recently, mutual solidarity or trust in the form of Social Capital (see, for example, Habisch 2008; Granovetter 1985, 2001) have been finding their way into business activities. Granovetter’s theory of Social Embededdness, in which either under- or oversocialized economic players spread, says that networks of social – concrete personal – relations between people 2

Considering working conditions in some church-owned hospitals or regarding labor negotiations in Catholic institutions, this doubt might be legitimated.

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discourage malfeasance (1985, 2001, p. 56 et seq). In forms of reciprocal relationships, mainly driven by corporate interests, managers might be sensitive to the idea that moral action causes even more faith than harm. Credibility and trust are intangible resources that should not be compromised. Further on, Benedict XVI claims that the market economy is not a moral-free domain. This might be interpreted as the claim to establish universal forms of conduct. Pope Benedict XVI states that the economy is neither an ethical neutral sphere, nor is it opposed to society (Benedict XVI 2009, CiV 36). "It is part and parcel of human activity and precisely because it is human, it must be structured and governed in an ethical manner" (Benedict XVI 2009, CiV 36). Ergo, there have to be standards for orientation. Pointing out that every "economic decision has a moral consequence" (Benedict XVI 2009, CiV 37), the Pope hints at the global dimensions of trade. The advice he gives is to think in a new way about moral norms and rights, the individual and (the consequences to the world's) society, love and trust in God for better and faster forthcoming human development. Benedict XVI points to solidarity, subsidiarity and the common good as pillars of the world order. An additional comparison might be in advising towards the subordinate regulatory framework. It is impressive to see how conform Benedict XVI's thoughts are to the social market economy (Ockenfels 2009, p. 243). Benedict XVI's first social encyclical gives less operating and robust advice. The loose framework of the Corporate Social Responsibility concept does likewise. Consequently, Catholic Social Teaching can be afforded as a frame for business in accordance with CSR. But this means rather in the sense of CSR as a world view (or moral regulatory motif) than as a new science of management. The Pope's teachings become more than just a cue. Corporations might spread some bread towards society instead of feeding the greed and letting the outstanding "starve by hunger".

Global Norms and Guidelines Corporate Social Responsibility has become more and more popular throughout the last decades. This development is closely linked to globalization and international markets. (Global) Corporate Citizenship is an important dimension of CSR and understood as the responsibilities of an organization towards its community and environment. It is obvious that the work on human and environmental rights and/or labor conditions in general has increased. A central point is that instead of external control being imposed on international non-existing law institutions, private organizations opt for internal control or self-regulation. These practices and initiatives have become, it seems, a “Market for Virtues” (see Vogel 2006). Nonetheless, it must be said that civic pressure has often led to this development, even though, to be sure, these efforts of global norms are mainly driven by incentives like certification (see Habisch 2008, p. 596; Gilbert/Rasche 2008, p. 759 et seq). Some of the most popular forms of conduct and political platforms on

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responsible management are stated below. 3 •

Greenbook, EU Commission: Promotion of a European framework on CSR, encouraging firms to perceive responsibilities on a voluntary basis

•

Global Compact: 10 principles in the fields of human rights, labor, environment and anti-corruption driven by the United Nations on a networkbased and voluntary basis (thousands of firms and institutions follow)

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Social Accountability International (SAI): SA 8000 standard for social accountability in areas of working conditions and human rights based on 8 principles, includes certification (introduction of management system)

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AccountAbility 1000 (AA 1000): A standard for measuring and reporting ethical performance in business, amplifying the GRI-Guidelines.

•

Global Reporting Initiative (GRI): International guidelines for sustainability reporting

•

World Business Council on Sustainable Development (WBCSD): CEO-led association of more than 200 companies, dealing only with business and sustainable affairs

• ISO 26000: International Organization for Standardization’s guidance standard for social responsibility on a voluntary basis.4 What these guidelines, accountability standards and management systems have in common is that they comply to certain codes in fields of human rights, working conditions, the environment and resources, or transparency. The list of initiatives could be extended endlessly if private standard-settings or codes of conduct were added. These self-regulations have led to incisive changes in HRM practices (Vogel 2006, p. 162 et seq): reduction of child labor, decrease of greenhouse gas emissions etc. There is also agreement on the implementation of these guidelines along the supply chain (Habisch 2008, p. 596), including suppliers and subcontractors. Famous affairs brought to the public such as Nike, Nestlé or Enron may serve as examples to show the damaging effects of non-ethical behavior by organizations and changes in corporate behaviour. Especially in times of crisis, the question concerning a firm’s existence and responsibilities increases in seriousness. As an answer, this conducts as self-regulation have become a major field for global companies under the head of CSR (Palazzo/Richter 2005, p. 392). Especially for heavily criticized industries like the tobacco industry, arms industry or the energy 3

4

For an overview, see: European Commission (2004): abc of the main instruments of corporate social responsibility, industrial relations & industrial change; European Commission Directorate-General for Employment and Social Affairs. Brussels. The download can be accessed through the Europa server (http://europa.eu.int). The release of ISO 26000 has been hold off several times and is now anticipated for the end of 2010.

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sector these accountability standards become very important because of public pressure. It seems doubtful that companies producing questionable products might even behave responsible. In particular in this context the implementation of CSRpractices of (not only) those criticized organizations without any external control and transparency is to question. The business case seems to be hide behind a haze of good formulated phrases and activities. But in a global world in which cognizance and trade in economic areas are expanding and questions about the effects and responsibilities of organizations are arising, CSR should become more that window-dressing so that is gets its validity of claims.

Convergence or Divergence? Corporate Social Responsibility and Christian Values Today Identifying moral frameworks or ethical norms that could balance the economic goals of organizations and good organizational behavior is the current topic of discussion in the field of Corporate Social Responsibility. On the one hand, Corporate Social Responsibility is, by a widely accepted definition, a concept that is accepted on a voluntary basis and goes beyond the law, whereas Catholic Social Teaching is an obligation, a duty for all the people in the world as Christian believers. Thus CSR still suffers from its unstable construct because of its lack of operationalization. In response to the objection that one cannot combine theology with business affairs, it must be said that – although CST is a highly idealized concept based on belief and relation to God – it is becoming more of a sociological approach than a theological one, especially regarding the last papal letter of Benedict XVI. Thus, CST remains a guideline for individual believers and cannot be a reference book for corporations. It brings forward the argument that human and value performances of organizations are inseparably linked. So business has to retain on norms of society. It is in this connection that the German business economists Wilhelm Kalveram, August Marx and Guido Fischer fit in their work in the middle of the 20th century. Unfortunately, the lessons they teach have been oppressed. Their ideas on the integration of Catholic social principles and thoughts into business activities and the heritage of Kalveram and others are hardly reflected in contemporary business administration. Kalveram’s, Marx’s and Fischer’s models of a firm offer a reflection in Christian, and universal, values. It is especially worth paying attention to the theoretical efforts of Guido Fischer in the current discussion on business responsibilities. A look at the current CSR debate in Germany reveals that the mission statement of the Honorable Merchant (der Ehrbare Kaufmann) is becoming more and more popular (see Klink 2007; Klink 2008). The model of the Honorable Merchant is a cultural construct which combines the behavior of a businessman towards his society. Already mentioned in the early 14th century in ancient Italian trade books (Klink 2008, p. 62 et seq), the stereotype implies a certain philosophy of life:

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profitability and moral virtues do not contrast. The Honorable Merchant stands for education, economic knowledge that promotes profitability and a special relationship to God, as religion in his day played a serious role in society. His honor was based on this service to God (who got a certain quota of his benefits, as the Honorable Merchant distributed to the poor) and his relationship to society, which he served by bringing well-being to his community (Klink 2008, p. 66 et seq). These considerations allow the Honorable Merchant to be called the (first) sustainable businessman (Klink 2008, p. 72). Inflationary use has been made of the vision of Honorable Merchants or businessmen during the last five years in the context of CSR. These reflections on honorable business also show that social principles in the sense of Christian values are – whatever kind of relationship exists with religion and God – the derivation of western trade and business. Regarding CSR, this last thought and the interpretations of Kalveram, Marx and, last but not least, Fischer might have the impact of triggering off a desirable discourse between business scientists on the one hand and advocates of Christian values on the other.

Conclusion This article aimed to clarify the extent to which Catholic Social Teaching might support the current debate on Corporate Social Responsibility: The essay has provided an overview on Corporate Social Responsibility and its vast magnitude, ranging from codes of conducts to political dimensions and its influence on HRM practices. Furthermore, the essay pictures out the cores of Catholic Social Teaching, its social principles – Common Good, Solidarity and Subsidiarity – and its universal meaning to human beings. In addition to that, the paper provides a historical view of German business scientists who represented Catholic social teaching in their theory on a firm. Wilhelm Kalveram, August Marx and Guido Fischer, the most important protagonists of a normative theory of firms, are processed. While Kalveram and Marx rather adhere to the romanticism of the corporate community and their references to the Holy Word of the Bible, Fischer develops a framework that, even though based in Catholic Social Teaching, tends towards an anthropocentric approach, human dignity and fairness in the working process. Diverging into the Honorable Merchant, it shows that Christian values and social principles in business are nothing new. Christian values and a virtuous merchant are the cores of western business activity. In fact, CSR may be considered an instrumental way to gain a competitive advantage, whereas CST is the obligation every Christian is under to act. When a person faces the temptation of choosing between literally breaking bread or keeping it, the Catholic doctrine, if taken strictly, allows him/her no choice. Even though the contemporary codes of conduct (e.g. SA 8000, Global Compact) contain the principles of solidarity, subsidiarity and the common good as taught in

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CST, the divergence seems to be insuperable. The conflict between CSR and CST might be resolved by giving CST a "watchdog" function (Erisman 2006, p. 13). Unfortunately, the lessons from CST in business are hard to find in contemporary business science. Barely CST is able to close the gab between good and bad business behaviour. But offering a broader view and providing examples of a good business case, a new dialogue between normative (Christian) and objective (value-free) representatives might be fruitful and refresh the Corporate Social Responsibility debate.

References Alford, O.P./Naughton H.J./Naughton M.J., (2001): Managing as if Faith Mattered: Christian Social Principles in the Modern Organization: University of Notre Dame Press, Notre Dame. Backhaus, K.B./Stone, B.A./Heiner, K. (2002): Exploring the Relationship between Corporate Social Performance and Employer Attractiveness. In: Business & Society, 41 83), 292-318. Bea, F.X./Dichtl, E./Schweitzer, M. (2000): Allgemeine Betriebswirtschaftslehre, Bd. I: Grundfragen, Stuttgart. Benedict XVI (2009): Caritas in Veritate. Download: http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_benxvi_enc_20090629_caritas-in-veritate_en.html Carroll, A.B. (1979): A three-dimensional Conceptual Model of Corporate Performance. In: Academy of Management Review, 4 (4): 497-505. Carroll, A.B. (2008): A History of Corporate Social Responsibility, Concepts and Practices. In: Crane, A./ McWilliams, A./ Matten, D./Moon, J./ Siegel, D.S. (Editors): The Oxford Handbook of Corporate Social Responsibility, Oxford, New York: 19-46. Chamberlain, G. (2004): The evolution of business as a Christian calling. In: Review of Business, 25: 27-36. Dorr, D. (1992): Option for the poor: a hundred years of Vatican social teaching, Maryknoll, New York. Dahlsrud, A. (2006): How Corporate Social Responsibility is defined: an analysis of 37 Definitions. In: Journal of Corporate Social Responsibility and Environmental Management, 15 (1): 1-13. Drumm, H.J. (1993): Die neueren Enzykliken zur katholischen Soziallehre: Eine Grundlage der Personalwirtschaft? In: Weber, W. (Hrsg.): Entgeltsysteme, Lohn, Mitarbeiterbeteiligung und Zusatzleistungen, Festschrift zum 65. Geburtstag von Eduard Gaugler. Stuttgart: 24-40. Drumm, H.J. (2005): Personalwirtschaft, Springer, Berlin, Heidelberg. Eberts, M. (1998): The Roman Catholic Church and democray in Poland. In: Europe-Asia Studies, 50, 5: 817-843.

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Ellis, R. (2005): Runder Tisch und Krieg an der Spitze, Die Gewerkschaft Solidarnść im Umbruch 1988-90, Verlag für Wissenschaft und Forschung, Berlin. Erisman, A. (2006): Good Companies. At: The Sixth International Conference on Catholic Social Thought and Management Education The Good Company: "Catholic Social Thought and Corporate Social Responsibility in Dialogue", Pontifical University of St. Thomas (Angelicum), Rome, Italy, October 5-7, 2006. http://www.stthomas.edu/cathstudies/cst/conferences/thegoodcompany/ European Commission (2002): Communication from the Commission Concerning Corporate Social Responsibility: A Business Contribution to Sustainable Development, COM (2002) 347 final, Brussels. Fischer, G. (1948): Christliche Wirtschaftsethik. In: Stimmen der Zeit, 142: 112124. Fischer, G (1952 a): Der Mensch im Betrieb: Die Grenzen zwischen Betriebswirtschaftslehre, Soziologie und Psychologie. In: Zeitschrift für Betriebswirtschaft, 22 (5): 253-264. Fischer, G. (1952 b): Keine einheitliche Wirtschaftstheorie! Das Verhältnis von Betriebswirtschaftslehre und Volkswirtschaftslehre. In: Zeitschrift für Betriebswirtschaft, 22 (9): 477-484. Freeman, E.R. (1984): The Politics of Stakeholder Theory: Some Furture Directions. In: Business Ethics Quarterly, 4 (4): 409-429. Friedman, M. (1970): The Social Responsibility of business is to increase its profits. In: The New York Times, September 13, 1970: 32 et seq. Gilbert, D.U./Rasche, A. (2007): Discourse Ethics and Social Accountability – The Ethics of SA 8000. In: Business Ethics Quarterly, 17 (2): 187-216. Gilbert, D.U./Rasche, A. (2008): Opportunities and Problems of Standardized Ethic Initiatives – a Stakeholder Theory Perspective. In: Journal of Business Ethics, 82: 755-773. Granovetter M. (1985): Economic Action and Social Structure: The Problem of Embeddedness. In: American Journal of Sociology, 91 (3): 481-510. In: Granovetter, M./Svedberg, R. (2001): The Sociology of Economic Life, Cambridge: 51-76. Habisch, A. (2008). Unternehmensethik. In: Rauscher, A. (Hg.): Handbuch der Katholischen Soziallehre, Berlin: 591-603. Hackett, K./Piraino, D./Rivera, J. (2006): One Organisation's Journey with Catholic Social Thoughts and Corporate Social Responsibility. At: The Sixth International Conference on Catholic Social Thought and Management Education The Good Company: "Catholic Social Thought and Corporate Social Responsibility in Dialogue", Pontifical University of St. Thomas (Angelicum), Rome, Italy, October 5-7, 2006. http://www.stthomas.edu/cathstudies/cst/conferences/thegoodcompany/ John Paul II (1981): Laborem Exercens. Download: http://www.vatican.va/edocs/ENG0215/_INDEX.HTM

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Jones, R./Murrell, A. (2001): Signaling Positive Corporate Social Performance: An Event Study of Family-Friendly Firms. In: Business & Society, 49 (1): 59-78 Kalveram, W. (1949): Der Christliche Gedanke in der Wirtschaft, Bächem, Köln. Kalveram, W. (1951): Ethik und Ethos in Wirtschaftspraxis und Wirtschaftstheorie. In: Zeitschrift für Betriebswirtschaft, 21 (1): 15-22. Klink, D. (2007): Die Renaissance des ehrbaren Kaufmanns. In: Das Handelsblatt, November 26, 2007. Klink, D: (2008): Der Ehrbare Kaufmann – Das urspruengliche Leitbild der Betriebswirtschaftslehre und individuelle Grundlage für die CSR-Forschung. In: ZFB-Special Issue, Journal of Business Economics, Corporate Social Responsibility, 3, 57-79. Kuhn, T./Deetz, S. (2008): Critical Theory and Corporate Social Responsibility. Can/Should we get beyond cynical reasoning? In: Crane, A./ McWilliams, A./ Matten, D./Moon, J./ Siegel, D.S. (Editors): The Oxford Handbook of Corporate Social Responsibility, Oxford, New York: 173-196. Küng, H. (1996): Yes to a Global Ethic, SCM Press, London. Lehmann, K. (2006): Die Verantwortung des Unternehmers, Diskussionsansaetze aus Sicht der Kirche. In: Schwaebisch Hall Stiftung (Hrsg.): Kultur des Eigentums; Berlin, Heidelberg: 53-60. Marx. A. (1962): Zur Theologie der Wirtschaft, Seelsorger Verlag, Herder, Vienna. Melé, D./Fontrodona, J. (2006): Individual and Corporate Responsibilities in the Social Teaching of the Church. At: The Sixth International Conference on Catholic Social Thought and Management Education The Good Company: "Catholic Social Thought and Corporate Social Responsibility in Dialogue", Pontifical University of St. Thomas (Angelicum), Rome, Italy, October 5-7, 2006. http://www.stthomas.edu/cathstudies/cst/conferences/thegoodcompany/ Micklethwait, J./Wooldridge, A. (2003): The company: a short history of a revolutionary idea, Modern Library, New York. Ockenfels, W. (2009): Völker hört die Signale aus Rom. In: Die neue Ordnung, 63 (4): 242-252. van Oosterhout, J./Heugens P.P.M.A.R. (2008): Much Ado about nothing: A conceptual Critique of Corporate Social Responsibility. In: Crane, A./ McWilliams, A./ Matten, D./Moon, J./ Siegel, D.S. (Editors): The Oxford Handbook of Corporate Social Responsibility, Oxford, New York:197-223. Palazzo, G./Richter, U. (2005): CSR Business as Usual? The Case of the Tobacco Industry. In: Journal of Business Ethics, 61: 387-401. Preuss, L./Haunschild, A./Matten, D. (2009): The rise of CSR: implications for HRM and employee representation. In: The International Journal of Human Resource Management, 20 (4): 953-973. Salazar, J./Husted, B.W. (2008): Principals and Agents: Further Thoughts on the Friedmaniate Critique of Corporate Social Responsibility. In: Crane, A./McWilliams, A./Matten, D./Moon, J./Siegel, D.S. (Editors): The Oxford Handbook of Corporate Social Responsibility, Oxford, New York: 137-172.

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Santos, N.J./Laczniak, G.R. (2007): "Just" Markets from the perspectives of Catholic Social Teaching. In: Journal Business Ethics 10: 29-38. Vogel, D. (2006): The Market for Virtues, The Potential and Limits of Corporate Social Responsibility. Brookings Institutions, Washington D.C. Wood D. (1991): Towards improving corporate social performance. In: Business Horizons, 34 (3): 66-73.

Exchange: A Baseline Model for SocioEconomics Wenzel Matiaske

“If there were no exchange there would be no association, and there can be no exchange without equality, and no equality without commensurability.” Aristotle “And in the end the love you take is equal to the love you make” John Lennon, Paul McCartney

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Social Exchange, Economic Exchange

We exchange greetings, a joke, friendliness – a look, attention, caresses. We exchange presents: we invite for exchanging thoughts, for dinner, and we exchange positions. We exchange harsh words, nasty remarks, and cross swords with each other. We exchange beaver for deer, money for rolls, blocks of shares – after all, it is about economy. In this sphere there is also exchanging money for labour, demands for benefits, obligations for appreciation. Like communication, exchange is a universal phenomenon of the social. Accordingly, theories on exchange count among the stock of those social sciences which are the basis for building up grand theories which sometimes characterise a whole discipline. We find theories on exchange in psychology, in sociology, in economics, in philosophy. Maybe also the topic of communication could be integrated without a problem into a generalised theory of symbolic exchange. However, the separation of exchange and communication is considered as a paradigmatic boundary between the theory of action and general system theory (Luhmann 1988, p. 206f). As this debate would go too far here, in the following I will focus on the category of social or economic exchange and accordingly to theories of action. For further proceeding this means two: on the one hand, in the following I will restrict myself to discuss selected, that is sociological and economic, theories and neglect both (social)psychological and philosophical thoughts. This restriction cannot simply be justified as usual by referring to lack of space. Admittedly, it is due to the author´s disciplinary preferences. Concentrating on this aspect offers also argumentative advantages. I am of the opinion that on the basis of the

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presented argumentation the connections between theories (and main disciplines in the field) and their limitations can easily be recognised. As, being a common topic, exchange connects sociology and economics just as it keeps these disciplines apart from each other. On the other hand, I want to focus on an economic way of formulating the theory of exchange and by way of discussing the explicit assumptions of this theory successively explain some of its variants. This way of arguing is similar to the debate within the discipline of economics which by (re)discovering the institutional foundations of general equilibrium theory has definitely joined the sociological discourse again. The chosen way of arguing is similar to the ongoing debate in economics without strictly following it. For, despite new institutionalism the core discipline of economics is worlds apart from the status of investigation of other social sciences, notwithstanding the fact that it is predominant for the “mainstream”. Just think about the fact that Nobel Prizes are awarded for the everyday and also – say – decision-theoretical triviality that on certain markets, like that of used cars, there is not at all complete transparency but asymmetrical information (Akerlof 1970). Of course suppliers do know more about the problems of their cars than potential buyers, due to which the latter – also as a matter of course – will ask a close friend for her assistance, who as an expert will kick against the wheels. Not that I think this Nobel Prize was not justified: just the opposite is true. But probably this honour tells more about the predominance of general balance theory than about the contribution by the core discipline of economics to the explanation of the behaviour of individuals and institutions. Following an overview of classical exchange-theoretical positions, a model will be in the focus which has caused some sensation in the sociological discourse. Based on a theory of “rational choice” of action (or in short “rc-theory”), James S. Coleman´s theory on exchange (1973, 1991) may be considered a basic element of contemporary social theory – that is not only of sociology but also of economics. In the following we will investigate some implications of this model, and in the course of this we will find out that it is surprisingly similar to the market model of standard micro-economics. In contrast to traditional micro-economics, however, modern social theory analyses the individual choice of action in principle as a social action and includes the context of the action into the development of an explantion. Accordingly, this exchange model can successively be extended in the context of social theory, in order of achieving descriptions and explanations being closer to reality. This way, we meet the topics of trust and of social capital, whose significance for the functioning of economic exchange relationships has only recently been recognized. As real markets are notoriously incomplete – their incompleteness is the reason why it makes sense at all to discuss the actions of organisations and actions within them – these thoughts are fundamental for a discipline beyond economics: socio-economics.

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Classical Positions of Exchange Theory

There is not the theory of exchange in sociology but – more or less strictly separated from economics – different exchange-theoretical positions. For the time being, George C. Homans (1974, p. 74f) definition will be enough for closing off from the domain of economic theory. To define the boundary he refers to the assumption by classical economics that no potential customer has any reason to repeatedly deal with a certain supplier: “Sociology, on the other hand, particularly deals with repeated interactions between the same persons, i. e. with interpersonal relations which last for some time.” A definition which is also true for socialpsychological approaches. Beyond agreeing on disclosing the domain from economics, however, there are considerable differences between exchangetheoretical positions. In an important overview study Peter Ekeh (1974) distinguished two traditions of theory: the collectivist and the individualist or rather the French and the AngloSaxon line. For sure this way of structuring is too rough and thus, as criticism of this book states, only insufficiently explains the special aspects of the theoretical points of view. Here, there shall additionally be dividing the individualist point of view into a learning-theoretical and thus psychology-based line as well as into an action-theoretical, economics-oriented one. Despite criticism, emphasizing the French tradition of thinking by Ekeh is important, as it draws our attention to a classic of exchange theory, whose work is a synonym of social exchange: Marcel Mauss´s essay on “The Gift” (1984). I like to start this overview by a short sketch of this essay, to then by Claude Lévi-Strauss´s structuralist anthropology describe another important position. Homan´s learning-theoretically based theory of exchange (1958, 1974) and Peter Blau´s action-theoretical argumentation are examples of the individualist approaches of exchange theory. 2.1

The Norms of Gift

The Gift is one of those great works of sociology which have cast long shadows and which are still shining, may it be from a distance. In his essay Mauss introduces a variety of single research works on the exchange of gifts in primitive societies. The different ways of exchanging gifts have the obligations of giving, taking, and responding in common. In exploring different form of exchanging gifts Mauss investigates in which way these social norms guide social action, why they are kept, and he analyses the effect of exchange for the social order of societies. This way of proceeding is according to the point of view of classical French sociology which, following Durkheim (1976), traced the rules of social action back to the effect of social norms. Mauss was particularly fascinated by the institution of Potlatch. Potlatch is a collective term for systems of exchanging gifts spread most of all among Native American tribes on the north-western coast of Northern America. However, similar systems are also found with other primitive societies (Harris 1995, p. 91ff). Gifts

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consist of great festivities to which one is invited, or precious objects like copper plates or woollen blankets. Usually, those giving are “great men”, that is e.g. tribal chiefs. Using Franz Boas´s words, Mauss describes this way of exchanging gifts as a kind of loan system to win friends and allies over for one´s own enterprises and to pay for their assistance later. “The economy system of the Native Americans in the British colony is mostly based on loan, just as it is the case among civilised people. For all his enterprises the Native American relies on help by his friends. He promises to pay for this help later. ... The Native American does not have any bookkeeping system; thus the transaction is carried out in public to make it secure. Building up debts and paying off debts – that is Potlatch. ... One must clearly be aware of the fact that a native American who invites all his friends to a great Potlatch and seemingly wastes all his goods piled up by years of labouring is out for two things which we can only consider to be wise and praiseworthy. His first goal is to pay off his debts. This is done in public and very ceremoniously, like a notarial act. His second goal is to invest the fruits of his labour in such a way as to gain the most possible profit for himself and for his children. Those who receive presents at such a feast take them as loans which they will use for their current enterprises; but after some years they must pay back with interest to the donor or to his heirs” (Boas 1890/99, quoted after Mauss 1984, p. 82). By analysing the Potlatch Mauss finds an answer to the question of why there is giving. The hypothesis is that the obligation to give obliges. It makes followers and secures friendship. In so far he outspokenly agrees with Boas´s description of the Potlatch, with the exception that he wants terms like debts, payment, paying off, and loan to be replaced by the terms present and return present (Mauss 1984, p. 82). The reason for rejecting the analogy is in the analysis of the second obligation of exchanging gifts, that of taking. One will only be ready to accept the obligation to take a present if one is ready to return it. In so far the exchange of gifts in Mauss´s sense does not only make relationships but already assumes a personal relationship between the donor and the one who receives, and this before the former gives something to the latter (Godelier 1999, p. 24). Due to the obligation connected to accepting a present, presents are not always welcome. Turnbull (1977, quoted after Coleman 1991, p. 401) reports on one case from his investigations on the Ik tribe that lives in great poverty. “A man comes home and sees that the neighbours are repairing the roof of his house without having been asked to. Although he does not want their help he cannot prevent them.” In this situation the idea is to consciously create obligations which the other will possibly return without having accepted the exchange. The obligation which was accepted by taking the gift motivates the everyday rule not to accept presents from everybody. The example of the description of the Potlatch already indicates why the obligation of a return gift is fulfilled. By the return present one becomes free from obligation. By refusing it one is excluded from the system of exchanging gifts. However, the analysis of the institution of Potlatch does not only reveal the norm of reciprocity on which it is based (Gouldner 1960) but also why the return gift

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must be appropriate to the gift or, to have it economically, why also in systems of exchanging gifts there develop equivalent prices. Regarding the Potlatch-system of Northern American Natives there is reporting that sometimes gift and return gift do not balance out one another but that the donors try to outdo each other. Mauss´s interpretation of this situation is that he who spends his wealth most extravagantly gains prestige (Mauss 1984, p. 85). Reputation and status may thus balance material imbalance by way of social exchange. Now and then return presents were even destroyed, which Mauss interprets as giving to understand that there is no necessity of giving them back. Thus, in this system not demonstrative consumption (Veblen 1981) but demonstrative non consumption creates a gain in status.1 In respect of answering the questions about giving and taking in the context of social exchange, Mauss was convinced of his interpretations. But his answer to the question of why there is a return stays to be mysterious, after all. Not in respect of the insight that unequal material equivalents can be balanced by status allocation – much more, this insight is a permanent achievement of exchange theory – but regarding the question of why a gift must be returned not only by equal value but often by the same object. Why Mauss was baffled is understood more easily if apart from Potlatch we look at one other system of exchanging gifts, the Kula. The Kula is a ceremonial swap among the Trobriand Islands, a group of islands in the western Pacific, forming a circle. The Kula was described by Borislaw Malinowski (1979). For this swap, not basic commodities but valuable objects – Malinowski compares their significance to the Trobriand people to that of the crown jewels of European royal houses – are exchanged in two directions along the islands. Clockwise from the West to the East, there go the “souvala”, necklaces made of red mother of pearls. In the opposite direction there travel bangles made of white shells and called “mwali”. Also here the ceremonial trade is restricted to the chiefs although the expeditions to the respective neighbouring islands influence complete social life for a certain period and include many members. The exchange starts with building seagoing canoes for a dangerous expedition to the neighbouring island, in order of very ceremoniously handing over an opening gift to the neighbouring people. The return gift is given staggeredly, after about one year and by an as dangerous expedition by the neighbours. The deal is locally or dyadically balanced by the delayed exchange of “soulava” for “mwali”. This balancing swap, however, will only succeed if the chain across the group of islands and along the

1

However, as the contemporary social anthropologist Marvin Harris (1997) assumes, dumping in the competition for status was not according to the original meaning of the Potlatch. Instead, the latter had lost its meaning by the mid-19th century, after diseases caused by contact to Europeans had broken out and the population had considerably declined. In order of luring followers to the deserted villages, the chiefs destroyed possessions. “But these were events of a dying culture trying to adjust to a system of new political and economic situations; they were hardly similar to the Potlatch of the old native times” (Harris 1997, p. 127).

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route of the Kula is not interrupted. If the global circle does not work, the donor´s reputation will be affected – also with this kind of exchange status is at risk. If necessary, somebody who is not able to fulfil his exchange obligations may offer a comforting gift, i. e. material goods like Yams or other garden fruit, which, however, will not end his/her obligation once and for all. On the long run, also the Kula-exchange creates stable relations; friends in the near and friendly allies on more remote islands (Malinowski 1979, p. 115ff). Beyond this, the Kula goes along with simple economic exchange of goods. However, this “haggling trade” is strictly separated from the ceremonial Kula.2 Today we know some attempts to solve the riddle of the Kula which implicates this very complicated kind of social exchange, strictly on the basis of the rc-theory. Ziegler (1986), for example, models the exchange situation of the Kula as a chain of iterated prisoner-dilemmas to make the route of co-operative exchangerelationships understandable on the basis of actors who are guided by self-interest. Mauss lacked these insights into modern game theory, and for us it is not difficult to understand why he looked for another solution of the problem of the return gift. Mauss sees the obligation to return to be caused by a moral economy, the foundation of which he finds by interpreting the narration of a Maori informer. After all, the “hau” of an object included into the ritual exchange, a spiritual power connected to this object, obliges to offer a return gift. The object offered by the donor is not a lifeless good. It stays to be connected to the donor, through the “hau” it stays to be a part of him. “By it he has power over the recipient, just as he, being its owner, has power over the thief” (Mauss 1984, p. 33). Although in our enlightened ears this explanation of the ritualised return gift sounds strange, we should not simply throw it to the pile of rejected sociological hypotheses. One of my colleagues, an economist being safely rooted in rational economics, told during his Christmas lecture the story that for long years he had been carrying with him, even when moving house several times, a Christmas present from his grandmother – a pair of hand-knitted socks which in similar quality and for a reasonable price could be bought in many shops – but that of course he never wears them. We do not call it “hau” but remembering and feelings: in the way the Maori informer understands it, it is the not offered return gift to the dead grandmother which gives her power over my colleague.3 2

3

Godelier (1999, p. 113) summarizes the more recent research on the Kula. It is remarkable that already at Malinovski´s time besides the described ceremonial Kula-circle there was the possibility of throwing a prestigious object into the Kula, which then went from hand to hand and was possibly returned by somebody owning an adequate precious object. The person who today knows everything about the Kula is a European who has souvenirs for tourists made in his workshops. Occasionally, he throws some of these things into the Kula “and makes profit from all additional gifts which traditionally accompany the circulation of bangles and necklaces. His goal is not at all any more that of the traditional Kula, achieving reputation, it is much more simply the accumulation of profit, the strive for wealthiness ...” Godelier 1999, p. 138) But what if the grandmother had not made these socks by herself but had given bought socks? Would they keep up the memory of the grandmother in the same way? More

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The Structures of Family Relationships

For interpreting the objects included into the exchange of gifts as having a soul and this soul of the objects creating connections, Mauss´s essay has been criticized by scientists.4 One of the most resolute critics of Mauss´s thesis that the “hau” creates a connection between donee and donor is Lévi-Strauss. In his “Introduction to Marcel Mauss´s Works” he notes that accepting belief, man´s idea of social reality – i. e. Mauss´s statements by his Maori informer – as an explanation of a social phenomenon would lead sociology into a dangerous direction which might mean its decline. “Then, ethnography would dissolve into a long-winded phenomenology, into a falsely naive mixture, where the apparent darkness of the natives´ way of thinking would only be emphasized to hide the otherwise all too obvious confusion of the ethnographer´s way of thinking” (Lévi-Strauss 1989, p. 36f). Much more, in his opinion the “hau” is not the reason for the exchange but only a conscious way of reason-giving by which humans express an unconscious necessity. This means that the “hau” is nothing else than a myth or an ideology. This criticism is closely connected to the theoretical position which LéviStrauss worked out in his early major work entitled “The Elementary Structures of

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generally: do (Christmas) presents create any advantage at all? What is their value? On the basis of data from surveys among students, Joel Waldvogel (1993) investigated that they systematically underestimated the price of presents or, in other words, that they attributed a lower value to them. The difference was between 10% and one third of the price. From this Waldvogel calculates a loss of value of between 4 and 16 billion dollars for the USA alone on the basis of data for 1992, and he recommends giving money instead of things to avoid such a loss. Already Waldvogel´s data show differences depending on the relationship to the donor. One reason why his results were doubted. Meanwhile, a number of further studies have been presented which in contrast to Waldvogel try to prove that the value of presents is estimated higher than their market price (e.g. Solnick/Hemenway 1996). But on what does this difference between subjective value and market price depend? On the difference of age between donor and donee? On the age of the donee? On the quality of the relationship? The debate is far from being concluded, and every now and again the American Economic Review publishes new results and comments on this problem in its December issue. Personally, I hope that an answer will be found before my child is competent to contract and the question of changing from giving things to giving money arises. This explanation is not the reason why his book counts among the classical texts not only of exchange theory but of social theory as a whole. The study on the gift was not only a social-anthropological text but a first plea for a third way; as early as at Mauss´s times between fully developed capitalism and Bolshevism. Mauss drew praxeological conclusions from his work in so far as neither the state should give up on the voluntariness of solidarity nor should man in capitalism be reduced to a cold-hearted calculator. Much more, he urges successful merchants, bankers, and capitalists to feel social responsibility and that they – just like the “great men” of the primitive societies he investigated – should accept this responsibility. This plea not only for public but beyond this for civil duties, for community within society, still make this book on the gift a contemporary text.

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Family Relationship”. By taking over methods of modern linguistics, the structuralism he supports is supposed to open up the grammar of the social. From this point of view, collective ideas, narrations about the social – i. e. also the idea of a “hau” – are only names (signifiers) which are only loosely connected to that what is named (signified), that is to the real world. It is the task of structuralist sociology to decode this connection and to reveal the structures on which the narrations are based.5 Here, this indication of the basic idea of structuralism must be enough. In our context, only some of Lévi-Strauss´s essential results on the elementary structures of family relationship are of interest. In this work (1993, p. 18) Lévi-Strauss proves to be a resolute supporter of an exchange theory, who like Mauss is convinced that exchange as a “total” social phenomenon influences social life as a whole. He goes as far as to interpreting family relationships as the result of an exchange, that is exchanging women among men. The basic structures of exchanging women must be decoded to understand complex social systems on the basis of family relationships. The material from which Lévi-Strauss deduces the grammar of family relationships is a variety of – at first sight – different marriage regulations. Lévi-Strauss calls those systems of marriage regulations elementary structures which divide members of a family group into forbidden and into possible marriage partners. He divides these systems into so called restricted or mutual and generalised or one-sided exchange systems. The systems are different to each other according to the specification of the exogamy regulation. In the simple case of the so called cross-cousin-marriage, when the daughters of the mother´s brother and the daughters the father´s sister are possible marriage partners, two lineage groups are directly mutually connected to each other. One lineage group gives or receives a woman. This constellation results in restricted, directly reciprocal exchange circles which Lévi-Strauss also characterises as a system of dual organisation. More extended exchange circles on the other hand, for which one-sided donor and donee relationships are typical, develop on the basis of the so called matrilinear crosscousin-marriage. In this case the class of marriage partners is restricted to the daughters of the mother´s brother, and at least a triad of three lineage groups is necessary to balance the exchange circle. Thus, it is not that one lineage group A receives a woman from group B and the other way round but like in the case of the Kula the exchange circle can only be balanced by one-sided giving from A to B, from B to C, and from C to A. The details of these marriage regulations are of no further interest for us in our context. But it should have become clear why LéviStrauss characterises marriage systems of the dual organisation-type as those insisting on being paid “in cash” and why – analogous to economics – he describes

5

The basic thought of structuralism is similar to that of psychoanalysis. Like Sigmund Freud (2002) for dream interpretation deduces from narrated dream images to a fundamental psychologic constellation, structuralist sociology is supposed to make the social structures behind social narrations visible. In later works on the structuralist position this link to psychoanalysis is increased and worked out, see Huber (1986).

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systems of generalised exchange as practising postponed exchange in the sense of “forward transactions” (Lévi-Strauss 1993, p. 596ff). By distinguishing reciprocal from generalised exchange systems, Lévi-Strauss developed two fundamental categories which have been taken up again and again during the further development of exchange theory. When discussing modern exchange theory, we will meet this pair of terms again. Also a second topic, which has become a leitmotif of exchange-theoretical literature, is based on Lévi-Strauss: stabilising modern society by way of exchange relationships. In the case of family ties due to specific marriage regulations this topic is obvious. In this context LéviStrauss is of the opinion that in different ways both systems result in developing solidarity among the lineage groups. But is it not that stable relationships are a precondition of successful exchange? And is it not that in this respect generalised exchange requires more preconditions than directly reciprocal relationships? Outside the world of exchanging women by way of strict lineage regulations generosity comes along with social closeness and vanishes with increasing social distance. In the close area of direct neighbourhood there is the mode of generalised exchange systems, but with less close partners one insists in a debt being directly payed off (Matiaske 1999, p. 136ff); in so far modern social systems are not different from primitive societies. In modern societies, however, the close correlation of social and spatial closeness has become less tight, due to social differentiation (Brunkhorst 2005). 2.3

Mutual Conditioning

From Anglo-Saxon sociology, at first George Casper Homans´s position must be introduced, whose own development of an exchange-theoretical position is not at last motivated by critically discussing the analysis of systems of social exchange by Lévi-Strauss (Homans/Schneider 1962). Following this discussion and a programmatic essay (Homans 1958), in a book on the elementary ways of social behaviour (Homans 1974) he systematically extends the theory of exchange which is already layed out by the theory of the social group (Homans 1978). Homans based his exchange theory, while following the reductionist programme of his own sociology, on psychology, or, to have it in more detail, on Skinner´s learning theory of operand conditioning. According to Homans, to transform the insights gained in the Skinner Box to social behaviour it is only necessary that the reinforcement of a certain behaviour is not done any more by an external experimentator but by the people themselves acting in the respective social situation. A smile, friendly gestures, and opening gifts or grim faces, threatening gestures, and breaking up the exchange replace giving food and electric shocks. Like the doves in the Skinner Box, which perform the improbable and have a dialogue which is communicated by light signals, the social situation of “double

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contingency”6 stabilises itself by actions of mutual exchange for which reward and punishment are inherent. Homans (1974, p. 26), anyway, is of the opinion that beyond the theory of operand conditioning no other theorems are needed to describe and explain social or exchange behaviour. To answer the basic questions of exchange theory – giving, taking, and returning (to the same extent) – by way of learning theory, Homans deduces the principles of reinforcing, of generalising, of saturation, and of justice from the theory of operand conditioning. By way of a case example – the informal exchange relationships in a public office, which were investigated by Peter M. Blau (1955, p. 49ff) – Homans explains these principles. Colleagues help each other with their work, exchanging assistance for social reputation. In principle, the unit under analysis is the dyadic exchange of ego and alter. Only occasionally one more colleague, the “third man”, is included into the investigation. While mutually influencing each other, the contributing people learn how to exchange reputation for help with their work and how to transform this behaviour to other situations. In my opinion, at two passages this way of arguing while strictly following the general rules of operand conditioning is not without problems. The first point is the principle of saturation. This is only partly true for social interaction. Positive interaction results in the development of affection and further on in increasing the friendly feelings between the people in question. People having friendly feelings towards each other will express these feelings by activities, that is interaction or, in more detail, exchange actions. From this there results a self-reinforcing feedback structure. In his book “Theory of the Social Group” Homans presents an illustrative example by re-analysing the Hawthorne investigations. From the work-related relationships of help of the workers in the bank-wiring-room there develop friendly ties. This positive feedback structure results in extending the interactions also to common activities in their leisure time (Homans 1978, p. 146). In so far, this exchange is not according to the principle of saturation but it opens up new fields where further, repeated exchange actions are probable. The figuration of mutual positive reinforcement, however, determines a division line between extrinsically and intrinsically motivated ways of social exchange. With extrinsically motivated social exchange, the interest is in the other´s goods, like in the case of economic exchange (assistance, reputation). With intrinsically motivated exchange, on the other hand, common activities are due to being interested in a relationship to the other one.

6

Parsons (1951, p. 36ff) called this minimum situation of social acting a double contingency, where ego and age act while being referred to each other and both actors have alternative possibilities to act, due to which their acting is mutually contingent. Now, the problem of double contingency is in how social acting develops in such a situation. After all, social scientific texts are different from each other according to the answers they formulate for this problem, the core problem of social order. Exchange theories formulate one of these solutions. Other theories count on force, normative orientation, communicative understanding, or mutual learning to explain social acting.

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A second problematic passage is the assumption of just distribution, as regularly remarked in commenting literature (Ekeh 1978). According to Homans, it depends on perceived justice if there is giving back appropriately. But the principle of justice cannot be deduced from Skinner´s learning theory. Perceived justice is the result of balancing one´s own performance and the received reward against those of a reference group (Adams 1963). The subjective question is what others experience in a comparable situation. Concludingly, in these of Homans´s analyses the “third man” appears again, who represents the point of reference of the comparison and who deputizingly represents the keeping of fairness. This means that also Homans does not succeed with constructing the behaviour-theoretical exchange theory completely without a normative point of reference. 2.4

Interactions among Rational Actors

The influence of Blau´s early works on Homans´s exchange theory was reciprocally taken up again by the former. In his book “Power and Exchange in Social Life” (1986a) Blau takes up Homans´s ideas and develops an independent variant of the theory of social exchange. The essential difference to Homans´s reductionism, that is explaining social actions by referring to psychological laws, must be pronouncedly mentioned in Blau looking back to his own work: by his way of formulating the theory of exchange he proves to be a staunch supporter of anti-reductionism, for in his opinion for the social sciences not only the explanandum but also the explanans is of social origin (Blau 1986b). With this point of view – explaining the social by the social – Blau joins the Durkheim tradition. Other than classical French sociology, about whose principles of explanation we have learned by Mauss´s thoughts about the gift, Blau does not base his analysis of social exchange on the concept of normative standards. However, and in this sense he quotes Durkheim´s formula, he shares scepticism towards explaining social phenomena only on the basis of psychological insights. This way, Blau distances himself from Homans´s behaviour-theoretical attempt and bases his own exchange theory on the idea of voluntaristic, rational actors. This micro-sociological point of view7 assumes that in principle the actors are free to choose. By these actions of choice they decide according to the principle of maximum use. Thus, acting while referring to others, exchange in our case, will only happen if both exchange partners gain profit from it. This view is already quite similar to an economic way of expression. By taking over the principle of 7

In later works Blau clearly distances himself from this point of view and focuses on a macro-sociological, structuralist position. During his micro-sociological period Blau assumes that the explanation of macro-sociological effects should be based on the assumption of individual behaviour. Later he supports a consequently macro-sociological programme, i. e. for explaining he counts on the structures or the social boundary conditions of acting instead of the acting of individual actors. This change is definitely one reason why his pioneering work on exchange theory has not found as much attention as that of other representatives of this point of view.

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marginality into the concept of rationality Blau comes even closer to economics and beyond this uses techniques of economic analysis, like indifference curves or the Edgeworth Box. Finally he re-formulates the minimum situation of social acting, that is the situation of double contingency, as a game-theoretical prisoner´s dilemma. If the actors try to cheat each other, i. e. to receive something from the other one without returning, the situation for both will be worse in the end, for neither side will be willing to exchange. Social exchange, which is a gain for both sides, will only be if the actors are ready to meet again or if internalised social norms like those of reciprocity signalise reliability (Blau 1986a, p. 255ff). Are thus social exchange and the theory of social exchange nothing else than a crude kind of economics? This seems to be, and in the following we will see that modern exchange theory has proceeded towards the direction shown by Blau and has come even closer to economics. Doing so, it takes up three topics which also Blau had already worked out: power, trust, and emergence of social relationships. As in the following we will meet these topics again, we may now leave this important predecessor of modern exchange theory.

3

Social Exchange in the Perspective of Socio-Economics

While earlier formulations of sociological exchange theory tried to achieve a strict differentiation from economics, this is not true to the same extent for contemporary positions. This way of coming closer cannot only seen by the contents – already Homans and Blau discuss most of all topics of organisational behaviour – but also by theoretical assumptions and by methods. Namely, there are most of all Richard M. Emerson (1962) and James S. Coleman (1973, 1991) who represent the disciplines to come closer to each other. Emerson in his dyadic exchange theory works out the connection to the topic of power. After all, the latter is a special case of Coleman´s more general exchange theory (Matiaske 1998). In the following, his exchange model will be in the focus and we will see in what way the previously worked out topics accompany the contemporary theory of exchange. 3.1

Social Market Exchange

For Coleman´s (1991) social theory a strictly micro-sociological direction, quite similar to the micro-economics, is typical. The foundation of this way of understanding are rational actors, i. e. those who normally maximise their own benefit. The phenomena which must be explained, however, are not these actions at the micro-level but collective effects of this way of acting. As the effects of acting are so to speak at a higher level and as they result from the single actions working together, these collective effects are also called macro-level. Methodological individualism, the general principle of explanation with such theories, strives for a micro-macro-connection to explain collective phenomena. E.g. there is a panic-stricken flight from fire with possibly many casualties if the

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individuals in a building being on fire – acting rationally from the individual point of view but aimlessly and disorderedly from the collective point of view – race for the exit. Thus, the macro-effects are not necessarily intended by the individuals but are an emergent composite effect of their actions. From Coleman there comes the systematization that the actors´ actions do not happen in a socially free space but that for such micro-sociological explanations boundary or context conditions are taken into account. Usually, these contexts are placed at the macro-level, due to which we also speak of micro-macro-explanations (Esser 1993). For micro-sociological explanations of this kind, general or prototypical models are essential, which are suitable for explaining a class of composite effects within the micro-macro-transition and which, if necessary, may be cut out for a specific problem. In his “Foundations of Social Theory” Coleman drafts a number of such prototypical models. I want to emphasize models dealing with power relationships, i. e. social relationships where actors voluntarily or involuntarily give away rights of action to a (superior) corporative actor. An essential explanation pattern in the context of founding corporative actors is that of “joint resources”. The actors give away resources to a corporative actor and agree on rules about how to decide about the pool of resources and how to distribute possible gain. Systems of social security, founding joint enterprises, but also many phenomena of social exchange count among this type of explanation. If, for example, a community of hunters distributes their prey among each other independently of individual success and balances individual success by justice to guarantee even supply for the community, this is a typical phenomenon of joint resources. Social anthropology uses the term “redistribution” (Polanyi 1959) for this type of exchange, and some of the above discussed cases, particularly that of the Potlatch, are classified as systems of joint resources. Coleman´s exchange model on the other hand, although originally developed for the analysis of collective decision processes (Coleman 1964), is an explanation pattern which is cut out for direct exchange among equals, that is for co-operation without transforming rights of action to a corporative actor. Later studies make its more general usability clear (Coleman 1973, 1991).8 The basic model describes the exchange of resources, Coleman speaks of events, among actors on a perfect market. As already in Blau, the actors – for the sake of simplicity we will assume people in the following – are usually described as rational egoists. They are egoists in so far as neither they feel obliged to do selfless deeds by others suffering nor do they have feelings of envy towards others who are better off than them. These emotionless beings are rational as they pursue their own advantage and, if possible, maximise it. This is admittedly a rather unworldly idea of man, which serves only for explaining collective phenomena as simply as possible. Thus, if necessary, it must be worked out in a way which is closer to reality (Lindenberg 1996). 8

This is a model in the strict sense of the word, for Coleman does not only work out his theory verbally but beyond this presents a mathematical formulation which can be used directly for the analysis of empirical phenomena.

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Particularly the idea of advantage must be defined more exactly before we will start an explanation (Matiaske 1999). For, if we do not define at first what the actors are out for, just as people in real life we may always claim after an observed action that this action was only meant for the real purpose and thus is according to the hypothesis of rationality, if we assume a motivation which is appropriate to the purpose of the action. Also the fox, who was not able to reach the wine berries due to his short legs, claimed afterwards that he had not wanted them because they were sour (Elster 1987). Let us thus assume in the following that, according to motivation theories, human actors also strive for social recognition besides material well-being (Becker 1990, Lindenberg 1990), to give a meaning to the assumption of advantage. Thus, the resources at hand for the actors within the exchange system create advantage because they contribute to material or social well-being. Coleman in his model further assumes that in the standard case these resources can be divided and exchanged for each other. In social life this is not always the case, Lévi-Strauss´s above mentioned exchange of women is a telling example of what may also be taken into account for modifications of the basic model. Let us take also these assumptions as being given, that resources can be counted and that they can be distributed as shares among the participants. Let us now also imagine that not all exchange partners have the resources they would like to have, but that they would rather like to give away part of them in order to get something else. If now the participants are additionally able to get to know which resources are available for the others, there starts barter. With it, there also develops a price and a balance of power. Rare goods, for which there is great and wealthy demand, are precious. Actors who have precious resources at their hands are powerful. At the end of the exchange everybody has a bit more of that what he originally preferred, and a bit less of what he was able to do without. According to the terminology of economics, the above sketched exchange model is a perfect market. This means that all resources can be divided and the rights to these resources are exactly defined. Furthermore, there is market transparency. Many actors and resources are part of the game, i. e. there are no supply monopoly and no buyers monopoly.9 The actors behave according to their respective order of preferences. More exactly, Coleman assumes an advantage of the Cobb-Douglas function type, which the economically educated reader will remember as a production function. Finally, the result of the exchange is according to the Pareto criterion. If one translates the Coleman model into this terminology, it becomes clear that this exchange theory is so to speak a sociological re-discovery of the Walrasian market model.10 9

By the way, from the economic point of view this is one of the problems of Emerson´s exchange theory, which is focused on dyadic exchange that is focused on a bilateral monopoly of supply and buyers. 10 This parallel stayed to be undiscovered for a long time. On the one hand, because despite all the demands for interdisciplinary the reception habits of sociologists are tied to their subject, on the other hand because for mathematically formulating his model Coleman

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From the point of view of the Coleman model the typical feature of social exchange is to be an exchange of a resource for a resource, which does not need the mediating medium of money. While with economic exchange half-transactions, that is exchanging goods for money, finish up the exchange, this is not the case with social exchange. Only if a supplier meets a buyer to whom he is in the same way a buyer of his supplies, a step-by-step transaction can happen. If thus a colleague, say in public service, misses a punch for his equipment but has got two pairs of scissors, he can balance this lack of elementary office equipment only if in the course of exchange among colleagues he finds somebody having more than one punch and being in need of a pair of scissors. If the transaction medium of money is absent, longer transaction chains and thus one-sided transfers can only be observed if the game is characterized by absolute transparency or if the actors may trust in their accounts to be balanced on the long run. If, for example, the colleague who has got the punches knows a third one who is in need of a pair of scissors, and if the latter again has got a good which he himself could well use or exchange elsewhere, then a rationally thinking member of the office would accept this halftransaction and would accept the pair of scissors for a punch. Another possibility is that the colleague gives away a punch and trusts in the promise to get the printer ink which he urgently needs, due to the freeze on public spending. If this example is a correct caricature of daily life in a public office, like a university, or if it belongs to the Absurdistan of exchange theoreticians is a decision I would like to leave to the reader´s talent for observation. Anyway, the difficulties of social exchange without a mediating medium which finishes up the half-transaction should have become clear. One might argue that due to the assumption that also social recognition creates advantage the distribution of reputation or status might work as a general medium, like money, and might finish up the half-transactions. Social recognition, however, is a bad compensation for money. Other than with money, the value of reputation depends of the donor´s status. Reputation received from a well-respected donor counts more than respect shown by a less well-respected donor. Furthermore, social recognition can be used only to a small extent, that is it cannot be transacted in the same way as money. Although the competition for reputation and honour clothes many exchange actions – competition among scientists is one example – offering social recognition is definitely not a general exchange medium. Thus, by the topics of trust and social capital the more recent discourse on social exchange goes into a different direction.

uses linear algebra instead of the kind of analysis which is usual for economics. The use of the stencil calculation instead of differential equations has the advantage that by using Markov chains it is possible to comprehend by which intermediate stages a balanced exchange is achieved. This is an idea which looks strange from the economic point of view but is of elementary importance in the world of social exchange.

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3.2

Trust and Social Capital

The discussion on Coleman´s exchange model has shown that a general medium is necessary if exchange systems are supposed to have an effect beyond a “dual organisation”, i. e. paying goods with goods, and to include wider circles. Polanyi (1959) characterises such simple exchange systems by the term of “direct reciprocity”. As already seen in the context of Lévi-Strauss´s analysis of the structures of family relationships, systems of “generalised reciprocity” , however, trust in accounts to be balanced on the long run, that is the participants of such exchange systems are granted a loan. In communities, systems of generalised reciprocity are based on social closeness which guarantees the actors to meet again. But what replaces the expectation of people meeting each other again to fulfil their obligations in modern social systems? From Coleman´s point of view it is trust on which social exchange is based. In this context he plans the theoretical construct of trust analogously to the medium of money. As a medium of exchange, money can be seen as a promise that the value of a given material good can be achieved again elsewhere and in the form of a different good. Also in respect of money there is trust. This trust is in the value of money, which must be kept stable for the period between giving and taking. Early currencies guarantee this by the intrinsic value of money, that is, for example, a precious metal, and guarantee the content of precious metal by coinage. Modern currencies hand down this symbolic form but, like the shell money of the Trobriands, are only promises to pay whose value is guaranteed by the central bank guaranteeing the stability of the value of the currency. The participants´ trust is thus transferred to the central bank (Coleman 1991, p. 153ff): it is in the monetary system, due to which we also speak of systemic trust.11 11

Modern systems of social exchange, so called exchange circles, which are found in many German cities but particularly in Austria and Switzerland, are quite a good illustration of the way the exchange medium works. By exchange circles there usually happens the exchange of work with which the participants in an exchange circle arek credited. Often, demanded and offered services are collected on a data-bank as a platform. This administrates also credit entries, as long as they do not circulate as symbolic money. Often, supporters of exchange circles receive their theoretical justification from Silvio Gesell´s theory of free money (1984), who was convinced that it is possible to overcome the evils of capitalist economy, like cyclic crises and unemployment, by interest-free money, i.e. by money losing its second function of being a means of storing a value. Beyond this theory, exchange circles cannot reach back to state-guaranteed currencies, most of all because they are supposed to stay out of the reach of state and particularly taxboard. Beyond this, it is necessary to close off black market-exchange from regular economy. This is the reason for the complicated organisational mix of central administration and circulation of credit entries instead of a more simple intrinsic currency. For example, artistically designed money, like some years ago the bone-money of the exchange circle at the Berlin neighbourhood of Prenzlauer Berg, would be lost for the exchange circle and find its way into the display cases of collectors because outside the exchange circle its value is much higher.

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With social exchange, trust is not in a currency. Analogously to the intrinsic monetary standard, there is trust in certain individuals. Trust looks for hints to reduce the insecurity of suffering from a loss in case of a one-sided transfer and, following the value-expectation theory, weighs probability against the chance of gain (Coleman 1991). Fixed common ties may be such hints. For example, there is telling about the community of Jewish diamond merchants in New York that for fixing business they are still satisfied with a handshake, as the participants cannot leave this community. Another possibility is that the exchange partners belong to one´s family or are friends (Ben-Porath 1980). Besides these common ways of securing trust, which have been handed down to modernity, there is the possibility to trust foreigners who do not belong to the community. Trust is tried out for exchange relationships by at first giving smaller gifts to an interesting but in respect of his trustworthiness unknown exchange partner, before there develops a partnership where trust is also given for greater one-sided transfers (Blau 1964, p. 93ff, Coleman 1991, p. 123ff). Finally, in an exchange relationship trust can be institutionally secured, e.g. by bringing in a guarantor or by supplying a security. In these cases of direct reciprocity existing relationships are increased or new ones are built up. There develops relationship capital, a certain kind of social capital, which elsewhere I called individual social capital (Matiaske 1999, p. 173). The network of relationships structures social exchange and has effects on modelling such markets. Perfect market models imply that each participant in the market can make contacts with every potential exchange partner. The structuring of social exchange by the individual social capital makes the use of certain relationships easier or more difficult. Thus, now it is not only important which resources are available but also which supply and market channels. Relationships are provided with value, from this point of view they become a capital the participants in the exchange system may use. Furthermore, the structuring of exchange relationships can be used strategically by occupying interfaces of networks. Agents, for example, connect different networks and charge an arbitrage for their bridging. As with social exchange the relationships towards others are intrinsically valuable, modern exchange theory has mated with the analysis of social network, which is helpful with revealing fixed relationships within relationships of social exchange. When discussing social capital, often the latter´s collective variant is emphasized, generalising trust in a certain exchange partner by considering the establishing of one norm to be general for a whole society. Social norms, like the rule of reciprocity, make generalised exchange relationships possible.12 There may be giving, e.g. to a person in a difficult social or economic situation, without the donor expecting the resource to flow back from the donee, as there is long-term trust in the donor possibly getting in a situation as difficult as the donee´s and then 12

For the sake of shortness I here restricted the discussion of transaction media to the analogous media of money and trust and only implicitly dealt with the second parallel between the social norm, which supports social exchange, and justice, which is fundamental for economic exchange. On this see in more detail Matiaske (1999, p. 154ff).

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somebody else being there to act as generously. These orientation-giving norms are learned and internalized during the process of socialisation (Coleman 1988). Also rational egotists – assuming their interest in the well-being of their offspring – will communicate norms of solidarity to their children if they cannot be sure that the latter will not sometime need other people´s help. Norms are updated and generalised by common activities in associations, clubs, or informal groups, as particularly Putnam (2000) worked out in his analysis of the decline of traditional US-American social life.13 Internalisation and generalisation of these norms of social exchange explain the phenomenon of why as a matter of course we give a tip to a taxi driver when being in a foreign city or country and will hardly ever meet this person again (Kubon-Gilke 1997). Social exchange uses existing connections and increases them. This way, social exchange structures the network of social relationships. Its institutions make trust in others possible and create new connections. Trust in exchange partners is learned, internalised as a social norm, and based on institutions which update and generalise trust in others. Thus, also in contemporary, economic theory of social exchange we meet the classical topics again. Even Mauss´s “hau”, the spirit of social exchange, is included into the rational paradigm. Not because social exchange is different from economic exchange due to intrinsic social motivations. This may be the case. But also some exchange in the course of which the other one is instrumentalised in order of getting an object or a relationship is a kind of social exchange if the exchange partners give up on the medium of money. Trust is the “hau” of modern theory on social exchange, which due to using this medium is different from economic exchange. Thus, from the point of view of contemporary exchange theory also in social exchange everything demands a price, but not everything can be traded for money. Much more, with social exchange the other one gets a face. E.g. it is one thing to give for a social purpose, e.g. for supporting homeless people, and something different to organise food or to prepare meals for homeless people. Also with the social the medium of money reduces transaction costs but also prevents exchange from creating or increasing relationships. Special social norms erect currency boundaries between social and economic exchange which are supposed to prevent everything from being exchangeable for money (Matiaske 1999, p. 194). E.g. friendship cannot be bought but only worked for by way of relationships of social 13

From Putnam´s (2000) outstanding empirical study there arise many questions. In my opinion it is particularly important to analyse if contemporary ways of community and commitment offer maybe better ways of generalising trust than traditional institutions. The drastic decline in members of the “American Bowling Congress” and other institutions shows most of all that traditional, formal organisations of the social find it difficult to arouse interest. But possibly modern “street corner societies”, like bar teams in football, to stay with the example of sports, or children fixing skateboard meetings, also create social communities in the same way as traditional clubs. Possibly, these more fluent ways of experiencing and being introduced to community are simply more appropriate to regionally less rooted social life.

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exchange. The power of money may be seen in this medium´s advantage of transaction costs in comparison to trust. Often, due to the advantage of transaction costs of the medium of money there is the fear that economic exchange will not only make social exchange vanish but even more that unbridled market exchange will undermine the social capital of a society. This thesis, which looks back to a long tradition in social theory and is supported in several ways, cannot be refuted by a few remarks. But at least I want to point out to the fact that this relation between the economic and the social can also be looked at the other way round. One lesson which can be taught by the Coase theorem (1960) is that perfect markets do only exist on tables or slides in economic and , as we have seen above, in sociology lectures. For real economic markets, however, there would be disastrous effects, as Richter/Furubotn (1996, p. 341) express an essential insight of modern industrial economics, if the conditions of the theoretically ideal market were real, for in a world of positive transaction costs trust is indispensable for economic transactions. In so far, economic acting is embedded into social structures (Granovetter 1985) or, in other words, market exchange creates a demand for social capital. The sociologist Baurmann (1996) in his work “The Market of Virtues” investigates the conditions which are necessary for social exchange systems to develop which could cover this demand.

4

As a Conclusion

This trip to the world of social exchange shows that the different exchange theories claim to explain social acting in general. Due to this, in the field of organisational behaviour they are always suitable for explaining if interactions are under discussion, i. e. e.g. the relationships between employer and employee, of executives and staff members, the informal relationships among staff members, or co-operations of organisations. For the time being, however, theories of social exchange are rather seldom cut out for topics of our field of research. Important exceptions are found in the fields of co-operation and network research as well as of leadership theory. Thus, usually one will need to construct interim assumptions leading from a general theory of exchange to explaining a concrete phenomenon. For each case of application it is thus necessary to make clear which kinds of exchanging goods, interests, and opportunities of exchange are part of the game. As classical exchange theories emphasize different aspects of social relationships – the norms or exchange, the structure of relationships, or their development – one will indeed discover different things, according to which of these theories is chosen. Other than the classical examples, Coleman´s contemporary theory of social exchange does not start with closing off from economics but with a “zero model” of the social, the model of a perfect market. By explaining this abstract model in more detail the theory of social exchange deduces the classical topics by help of the category of social capital: the networks which structure social exchange, trust

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learned from these relationships, and the norms along which exchange is orientated. Maybe theory should at first become free of the classical topics to make its significance more visible. By the category of social capital, anyway, we meet again the thesis of economic acting being based on social preconditions, which the sociologist Durkheim formulated as early as one century ago. He formulated this thesis also to close off sociology from economics, which now comes closer to economics again. Or is it the other way round? It was a long time for economics to recognize consequences of the fact that the auctioneer in Walras´s complete market model works as a non payed volunteer. The new economics of institutions anyway define the market as a “social institution of repeating exchange” (Richter/Furubotn 1996, p. 310; italics by W. M.).

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Authors Professor Kurt April, Leadership, Diversity & Inclusion; University of Cape Town, Research Fellow, Ashridge Business School, Associate Fellow, University of Oxford. Professor Christiane Bender, Sociology; Helmut Schmidt-University Hamburg. Professor Hauke Brunkhorst, Sociology; University of Flenburg and The New School for Social Research, New York. Dr. Eddie Blass, Consultancy and Business Partnerships; University of Hertfordshire and University of Ashridge Business School. Professor Sérgio Costa, Sociology; Free University of Berlin. Professor Barbara Fritz, Econonics; Free University of Berlin and GIGA Institute for Latin American Studies at Hamburg (on leave). Christine Gröneweg, Human Resources Management; Helmut Schmidt-University Hamburg. Professor em. Gerhard Hauck, Sociology and Cultural Anthropology; University of Heidelberg and University of Mainz. PD Dr. Peter Imbusch, Sociology; University of Bielefeld and University of Marburg. Professor Regina Kreide, Political Sciences and Sociology; Justus Liebig Universität Giessen. Bernd Ladwig, Political Sciences, Free University of Berlin. Professor Susan Marks, International Law; London School of Economics. Professor Wenzel Matiaske, Business Administration; Helmut-Schmidt-University, Hamburg and German Institute of Economic Research/Socio Economic Panel, Berlin. Dr. Thore Prien, Sociology, University of Flensburg, Germany. Professor Anne Reichold, Philosophy, University Flensburg, Germany. Jana Rieckmann, European Studies, University Flensburg, Germany.

Zentrum und Peripherie, hrsg. von Hauke Brunkhorst, Sérgio Costa, Wenzel Matiaske, Marcelo Neves Hauke Brunkhorst, Gerd Grözinger, Wenzel Matiaske (Hrsg.): Peripherie und Zentrum in der Weltgesellschaft Band 1, ISBN 3-87988-875-2, Rainer Hampp Verlag, München und Mering 2004, 238 S., € 24.80

Hauke Brunkhorst, Sérgio Costa (Hrsg.): Jenseits von Zentrum und Peripherie. Zur Verfassung der fragmentierten Weltgesellschaft Band 2, ISBN 3-87988-933-3, Rainer Hampp Verlag, München und Mering 2005, 257 S., € 24.80

Sérgio Costa, J. Maurício Domingues, Wolfgang Knöbl, Josué P. da Silva (Eds.): The Plurality of Modernity:Decentring Sociology Band 3, ISBN 978-86618-088-8, Rainer Hampp Verlag, München und Mering 2006, 294 S., € 22.80

Wenzel Matiaske, Hauke Brunkhorst, Gerd Grözinger, Marcelo Neves (Eds.): The European Union as a Model for the Development of Mercosur? Transnational Orders between Economic Efficiency and Political Legitimacy Band 4, ISBN 978-86618-112-0, Rainer Hampp Verlag, München und Mering 2007, 205 S., € 22.80

Peter Tamm: Selbsthilfe als Politik. Eine explorative Studie zur qualitativen Bestimmung politischen Handelns im gesellschaftlichen Sektor kooperativer Selbsthilfetätigkeiten Band 5, ISBN 978-86618-182-3, Rainer Hampp Verlag, München und Mering 2007, 282 S., € 27.80