Law Making by Global Civil Society: The Forest Certification Prototype

Abstract

Forest certification is a process through which transnational networks of diverse actors define and enforce standards for the management of forests around the world. Important forest certification programs currently include the Forest Stewardship Council, the Pan-European Forest Certification Scheme, and the Sustainable Forestry Initiative. Products from certified forests usually carry a logo intended to signify that they were produced in an environmentally and sometimes socially acceptable manner. In seeking to verify for society that the activities of certified forest enterprises are acceptable, certification programs take on the important public roles of (1) setting standards for proper behavior and (2) ensuring conformance with the standards. They do not rely on the policy formulation or enforcement mechanisms of nation states. Rather, they develop standards through their own organizations and enforce them with their own institutional mechanisms. Because the environmental policy-making and enforcement functions assumed by certification programs have long been the purview of governments, the initial challenge is how to conceptualize certification programs. Given that they are not governmental initiatives, much existing literature describes certification programs as 'market mechanisms.' But this is true only in the loosest sense, in that certification programs seek to us market signals to restructure producers' access to consumers. At base, however, the promoters of forest certification have not been driven by market incentives, but rather have attempted to restructure them to achieve environmental and social ideals. One theoretical construct commonly applied to non-governmental and non-market organizations seeking to shape social behavior is that of 'civil society.' This paper aims to understand forest certification in terms of civil society theory. Moreover, since certification programs seek to achieve long-term regulation of forest management, often using law-like institutions, the paper explores the degree to which certification programs can be seen as making law. The paper uses a mutual illumination methodology. Starting from the hypothesis that forest certification is part of a larger process by which institutions of global civil society are being constructed, it draws upon global civil society scholarship to illuminate important social dimensions of forest certification. At the same time, research on forest certification is used to suggest some of the prospects and challenges facing global civil society. Next, the premise that forest certification is an emergent form of environmental law is subjected to a similar mutual-illumination strategy, using legal scholarship to examine forest certification, and also using forest certification scholarship to reflect back on law. The paper critiques forest certification in terms of efficacy, adaptability, coherence, and legitimacy. It concludes that while forest certification has some important lessons to learn from environmental law, it may also end up teaching, reshaping and ultimately expanding the reach of environmental law.