Improving the World via accounting law?

Miia Halme-Tuomisaari, Helsinki Collegium for Advanced Studies

Roundtable on “Changing Climates of Politics and Law,” American Anthropological Association Annual Meeting, November 22, 2019, Vancouver, BC.

Convener: Mark Goodale, Chair: Greg Feldman, Vancouver CC West, Room 208, 2 pm-6 pm.

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This roundtable invites us to reflect on the current state of law and politics – as well as on anthropological approaches to this state. The context of this invitation is a consideration as to whether we are entering an era of ‘re-politicization’ – or de-judicialization – after decades of the opposite, aka, the translation of political ideals and goals into law.

From the viewpoint of human rights, these themes find a foothold in recent, increasing attacks on freedoms that have in recent decades come to enjoy uncontested status as human rights in diverse parts of the world. One element of these attacks has been challenges to existing legal instruments, occasionally with calls to demolish them. This has been the case with regard to the UK Human Rights Act in debates around Brexit (Gearty 2015).

Simultaneously, we are witnessing more subtle developments that, instead of taking the form of an attack or challenge, may be interpreted as embodying the mainstreaming or ‘triumph’ of human rights.

Yet, when approached analytically, they too may indicate a shift from the realm of law to the realm of politics, albeit in novel ways and with unpredictable consequences. These developments beg for detailed anthropological attention.

In this paper, I will introduce one such example, a 2016 amendment to a Finnish accounting law – a legislative initiative that requires large corporations to report on their conduct in the areas of human rights and sustainability. This initiative gains relevance from how it frames human rights and sustainability as something that corporations are legally required to acknowledge in their operations, simultaneously expanding the scope of the law.

Expansion of human rights law is in general something that many activists continually support as an integral way of advancing human rights; a dynamic that critical legal scholar Duncan Kennedy has characterized as ‘straddling’ (Kennedy 2002). Initiatives to increase the legality of human rights trace back to the very dawn of the contemporary human rights phenomenon in the early 1940s, and these initiatives can be continually located within diverse parts of the UN human rights apparatus (Halme-Tuomisaari 2015; forthcoming).

To briefly contextualize the Finnish administrative law amendment, it was introduced in pursuance of EU Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large companies. The adoption of the 2014 EU directive, in turn, may be linked to the recent unfolding of global administrative law.

Global administrative law has increasingly become a topical theme, in policy and in scholarship, as a decisive medium for addressing the international obligations of corporations (Kingsbury, Krisch, and Stewart 2005; Cassese 2017). Simultaneously corporate responsibility has become one of the most compelling issues in human rights debates.

This attention is timely as the scale of corporate operations continues to grow and corporate actors are in actuality responsible for numerous human rights violations that are often assigned to the state, including child labor. Yet, corporations have so far not been commonly recognized as legal persons under public international law.

For example, UN human rights covenants only include states as their parties – which also means that all existing UN human rights monitoring mechanisms address solely the actions and responsibilities of states. The same applies to the UN and public international law in general: both are composed predominantly of sovereign and formally equal states.

Over the past decade, numerous attempts have been made to address the human rights obligations of corporations. As is the case with regard to the Finnish accounting law amendment, these initiatives are often linked to the growing importance with which sustainability is regarded.

Sustainability, in turn, is a notion that has rapidly acquired tremendous popular support, potentially even challenging the seemingly uncontested status of human rights as the ‘value of our age’ forming the ‘last global utopia’, as Sam Moyn memorably phrased the matter a few years ago (Moyn 2010).

This increased importance is illustrated by the ways in which sustainability has assumed center stage in initiatives for international collaboration, such as the UN Sustainable Development Goals of 2015. Sustainability has also become keenly embraced by the corporate sector: in addition to encompassing a spirit of improving the world, it has increasingly turned into a competitive advantage.

Together, these developments have resulted in surprisingly rapid changes, of which the growing importance of global administrative law is one tangible expression.

Initially, one might welcome these developments as confirmation of the growing importance of non-financial values – including human rights and sustainability – in the operations of corporations instead of their actions being merely steered by the pursuit of profit. One might also welcome these initiatives as confirmation for the expansion of the scope of human rights law, this expansion also serving to improve the world.

Yet, closer examination reveals that the matter is more complex than it first appears. Two observations concretize this.

The first observation is that administrative law shifts the legal framework according to which corporate human rights obligations are stipulated: instead of public law, administrative law is a part of private law. This, in turn, means significantly different expectations with regard to transparency, with much greater possibilities for maintaining confidentiality.

The second observation follows from the first and relates to the specifics included both in the new Finnish accounting law and in the EU directive: they rely on corporate self-reporting, simultaneously emphasizing the flexibility of both procedure and format.

These observations accompany the new Finnish accounting law with new layers: such laws do not appear as tools that automatically ensure greater corporate compliance with human rights norms or with any other values. Neither do these legal initiatives guarantee public accountability in cases of wrong-doing.

Instead, these initiatives make way for other, more troubling possibilities: they offer corporations options to make use of existing legislative tools in order to legitimize their actions by choosing how they report on their activities, without external oversight or objective assessment on their conduct.

This casts these legislative initiatives in a more complex light. Undoubtedly these initiatives expand the scope of human rights law to legal subjects that were previously not covered by it in the international arena. Yet, what this expanse means for the realization of human rights becomes significantly ambivalent.

In particular, it is difficult to ascertain whether this legal expansion is a positive development from the viewpoint of strengthening the capacity of human rights to function as a tool for improving the lives of the world’s underprivileged. There are undoubtedly opportunities for the opposite, namely, for these legislative initiatives to transform human rights into tools to strengthen the position of those who are already privileged.

In the present case, the relevant privileged group are corporate shareholders. Sustainability and human rights have become increasingly central to acquiring a competitive edge over rival companies. Consequently, being able to appear in a positive light via legal self-reporting mechanisms, such as the ones instantiated in Finnish accounting law, potentially translates into a more favorable standing in the market.

Of course, these paradoxes are not unique or even exceptional: much has been written – by ‘critical’ legal scholars, among others – on the complex consequences of legalization.

The most important message from this scholarship for the present roundtable is how, in essence, the law is fundamentally an elaborate argumentative structure in which no outcomes are ever predetermined, but rather are always open to competing interpretations (Koskenniemi 2005).

This, in turn, means that the law is always also intrinsically political. This insight has perhaps not penetrated through anthropological scholarship as thoroughly as one might expect. Making sure it does so would an undoubtedly welcome addition to, or reconfiguration of, our shared analytical toolkit.

To conclude, in summarizing the relevance of these observations to both human rights and anthropological analyses more generally, I want to highlight two things in particular.

First, there is no certainty that the mere existence of a law yields in any kinds of unequivocal consequences. Thus, there is also no certainty that the introduction of new legal instruments – such as the new Finnish administrative law to address corporate compliance with notions of human rights and sustainability – will mean that the world will become a better place.

The second observation is that the introduction of new legislation does not mean the end of ‘politics’, but rather its continuation in different guises and via different techniques. In identifying these novel incarnations, keen anthropological engagement is required. Otherwise, the shapes they are taking and paradoxical consequences may go unidentified.

Warm thanks for your attention & looking forward to the outcomes of your exchange with great excitement!

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Warm thanks to Greg Feldman for reading this paper in Vancouver!

 

ROUNDTABLE ABSTRACT:

If the period after the end of the Cold War was marked by what some have called the “judicialization of politics,” a period in which political claims were rendered increasingly legal (often through rights), is this still the case? How do the political and legal now relate to each other in light of the backlash against human rights, the rise of nationalism, ongoing structural racism and sexism, and the challenges created by exploding global inequality? Are we entering (should we be entering?) a phase of “de-judicialization” in which political claims and claims-making are being decoupled from the legal to be pursued in other ways? What does our collective ethnography tells us about these questions? 

This roundtable—one of two companion roundtables—brings together political and legal anthropologists from the editorial board of the Political and Legal Anthropology Review (PoLAR), the journal of the Association for Political and Legal Anthropology (APLA), to consider these and other questions. The close relationship between political and legal anthropology has proven to be a fruitful one. At the same time, the conceptual and ethical linkages between the political and the legal have remained dynamic. Participants in the roundtable will critically examine this relationship in order to both take stock of the enduring value of the central logic of APLA and consider the ways in which this close collaboration can respond to wider changes in the way politics and law relate to each other in practice in the contemporary world.

 

 

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