Global Governance and Conflict of Laws from a Foucauldian Perspective: The Power/Knowledge Nexus Revisited

Abstract

Drawing on the work of Michel Foucault, this article sheds light on the tension-rich interactions between state-based law and the emerging power mechanisms of the transnational sphere. Besides norms and standards, private governance also includes the evolution of knowledge practices such as auditing, surveillance, rating and benchmarking. These practices can cause manifold legal conflicts, which call for specific forms of coordination. This is all the more true since the transnational sphere has evolved into a battlefield of numerous, often highly conflicting governance regimes, which often come with their own rationalities, problem-definitions and ideologies. Lawyers seeking to incorporate the emerging extra-legal mechanisms into their decisions must try to inquire into the whole range of divergent governmental practices in the relevant field, so that they do not become captivated by the particularistic rationality of one single initiative or regime. As an empirical illustration, I discuss ISO 14000 and its relation to some less formalised forms of corporate governance that have emerged as an alternative to the latter.