Claves del derecho de redes empresariales. AAVV

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СКАЧАТЬ it is imperative to readjust constitutional policy. In the second wave of constitutionalization, instead of the constitutive, the limitative function of constitutional norms is in demand. As one among many reactions to the crisis, the codes of corporate networks partake in this second wave when they restrict corporate activities in the name of public responsibility. They try to overcome the primacy of shareholder value in favour of a stakeholder-orientation as well as to realize self-restraint in the areas of labour, product quality, environment and human rights.³³

      This is the message of societal constitutionalism. Not only measures of public regulation, but also the “private” constitutions of corporate networks are faced with the task: How can a sufficiently large degree of external pressure be generated on the corporate networks to push them into self-limitations on their options?

      Why self-limitation and not outside limitation, though? Does not experience show that self-limitation merely serves to set the fox to keep the geese and that excesses can only be prevented through outside influence? Equally, though, does not experience also show that attempts at trying to control internal processes through external interventions regularly end in failure? At this point societal constitutionalism does a difficult balancing act between external intervention and self-direction. A “hybrid constitutionalisation” is required in the sense that in addition to state power, external societal forces — that is, formal legal norms and “civil society” counter-power from other contexts (media, public discussion, spontaneous protest, intellectuals, protest movements, NGOs, trade unions) — exert such massive pressure on the expansionist corporatist networks so that they will be constrained to build up internal self-limitations that actually work.

      However, workable limitations can take effect only within the system’s own logic, not outside it.

      “Every function system determines its own identity … elaborating semantics of self-interpretation, reflexion, and autonomy. The mutual dependencies of the subsystems can no longer be normed in general. Indeed they can no longer be legitimised at all as a condition for order at the overall social level.”³⁴

      The difficult task of co-ordinating the function of a social system and its environmental tasks at a sufficiently high level can be tackled only through system-internal reflexion, which can certainly be prompted from the outside but cannot be replaced. This is why there can be no external political definition of transnational corporate constitutions, but only indirect political impulses or constitutional irritations. The knowledge regarding which kind of self-limitation can be selected does not even exist as such. It cannot simply be accessed, but rather has to be generated internally first. Endogenous growth imperatives can be combated only with endogenous growth inhibitors. The knowledge required to do so cannot be built up by an external observer as centrally available experiential knowledge, but only out of the combined effect of external pressures and internal discovery processes.

      No one knows how such a capillary constitutionalisation might work in practice. Ex-ante prognoses are by definition impossible. And, for that reason, there is no alternative but to experiment with constitutionalisation. The application of external pressure means that the self-steering of politics, or law, or other subsystems, creates such irritations of the corporate networks, that ultimately the external and internal programmes play out together along the desired course. And that cannot be planned for, but only experimented with. The desired course for corporate network constitutions is limitations of the endogenous tendencies towards self-destruction and environmental damage. This is the core of the constitutional problematic, this difficult handling of the corporate networks’ self-transformation.

Thesis # 3: Constitutional Structures: Double Reflexivity and Binary Meta-Coding

1. Structural Coupling of Reflexive Mechanisms

      The codes would not establish constitutional structures, if they only introduced primary rules governing corporate activities in the fields of labour, environment and human rights. The critical threshold is reached, when the codes lay down secondary rules concerning the identification, interpretation, amendment, competences for the enactment and delegation of primary rules. Typically, codes of corporate networks show a three-tiered hierarchy, in which the interplay between primary and secondary rules is discernable indeed. The top level consists of the general principles of the corporate constitution; the middle level regulates enforcement and monitoring; while the lowest level includes concrete instructions for conduct.³⁵ At the top and middle level, a plethora of such secondary rules can be found. They come close to constitutional norms in the strict sense, since they produce as higher-ranking meta-norms a sort of reflexivity of intra-company law. But secondary norms as such do not constitute yet a constitution.

      Only the peculiar double character of corporate codes, which I call the double reflexivity of legal norms and social structures, turns them into constitutional norms. If law plays a supportive role in the self-constituting of a social order beyond its function of conduct control, dispute settlement, regulation and frame setting, it creates constitutional law. A corporate constitution in the strict sense only emerges, if a structural coupling of a particular kind comes into being between the corporate organization and the law.³⁶ Transnational corporate constitutions link reflexive processes in the economic organization with reflexive legal processes; in other words, they link fundamental principles of the organization with secondary legal rules.³⁷

      An autonomous, non-state, non-political, and hence genuinely societal constitutionalization occurs in the codes of transnational corporations, since they juridify reflexive social processes that concern the relationship of the company with its environments by linking them to on their part reflexive legal processes, i.e. standardizations of standardizations. Under this condition, it is reasonable to talk of elements of a genuine constitution within the corporate codes of transnational corporations. The codes show indeed typical elements of a constitution: regulations concerning the establishment and practice of organizational decision-making (procedural rules of the corporation) and the definition of the system boundaries (fundamental rights of individuals and institutions vis-à-vis the corporation).

      The norms at the top level of corporate codes are especially geared towards these conditions. They regulate the fundamental decision-making processes of transnational corporations, which concern the relationship with their human and natural environments, especially the relationship with the employees whose fundamental rights are respected by the organization. The “guidelines” at the top level have constitutional character, since they are not only mere behavioural norms, like the rules at the lowest level. Rather they are explicitly higher-ranking norms, phrased as general principles and serving both as starting points for intra-corporate norm-generation and as yardsticks for the internal and external review of norms. This requires certain institutional arrangements, especially procedural roles, which are responsible for setting, modifying, interpreting and implementing the primary rules. It is therefore especially the middle level of control and implementation bodies that mediates between abstract principles and concrete corporate decisions. Thus, private codes do not only generate autonomous law as private ordering; at the same, they constitute their own constitutional foundations without being dependent on public codes — they generate literally constitutions without the state.

2. Binary Meta-coding of the Corporate Constitution

      The endpoint of the constitutionalization of a corporation is reached, when a specific binary meta-coding develops. The meta-coding oscillates between the values “code-compatible”/ “code-adverse”, both with regard to the corporate constitution. A meta-coding exists in this case, because such a constitutional code subjects the already binary coding of intra-company legal norms to an additional examination, namely whether they conform to the requirements of corporate constitutional law. Here, the hierarchy between simple and constitutional law emerges, which is typical for all constitutions. The legal code (legal / illegal) is subordinated to the constitutional code (constitutional / unconstitutional). However, there is something peculiar to the constitutional meta-coding. It is not only СКАЧАТЬ