Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.

Abstract

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project—the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of * W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University. The author may be contacted at lcb911@gmail.com. The paper was first presented at the International conference, Societal Constitutionalism and Globalization, hosted by the Hague Institute for the Internationalization of Law and the International University College, Torino, Italy, May 18, 2012. My thanks to Gunther Teubner (Goethe Universitat Frankfurt am Main) and Anna Beckers (Maastricht University) for organizing this excellent conference. 806 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 20:2 self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element—as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.)—in three dimensional governance space. After an introduction, Section I engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. The paper concludes where it started—suggesting the need to expand our understanding of constitutional theory to include communication among systems in a complex polycentric constituting universe.