Civil Society goes transnational: bringing the law back in

Civil Society is among those concepts which were developed in the context of the nation state. In the post-absolutist order it was invoked as an intermediary zone through which it seemed possible to reconcile both the new realm of private freedom and the imperative of the common or public good. Given the role of the law as a central steering mechanism and powerful regulator of human behavior, law’s particular relationship to civil society was always a much debated topic on the agenda of modern social thought. In the context of globalizing economic governance, what is the relationship between law and the emergent phenomenon of a transnational civil society?  Is the law capable of compensating for the susceptibility to colonisation and capture of institutions by dominant economic and political interests, or, in the alternative, does it necessarily serve to entrench the normative bias inherent in the economic and political structure of such post-state entities? These questions are raised in a special issue of the European Law Journal devoted to the subject of law and transnational civil society. The governance institutions scrutinized in particular are: the EU with its relatively broad mandate, the more functionally limited WTO, and the specifically sectoral case of ICANN’s regulation of the Internet domain name system.
ICANN was initially heralded as a model in self-governance for the global Internet community free from national governmental and international interference – global civil society regulating itself. Jochen von Bernstorff’s analysis of the ICANN experiment is sobering: On a global level, he states, network-like governance structures inevitably exclude certain actors and interests while operating outside procedural and substantive legal commitments and constraints. These ‘flip sides’ of the flexible network structure tend to sustain the dominance of the strongest actors of the network, and may turn the ‘participatory’ claim into an instrument of hegemony. The central problem on the international level is that of unequal access to the institutionalization of governance structures and the fact that the persistent inequalities are obscured by the heterachical design of governnace structures – all of which could be proved in the case of ICANN.
But this is not to assume the impossibility of collective self-government outside the formal structures of government. It rather shows that such ‘grassroots’ social organisation may easily be subject to capture by the powerful in the absence of certain institutional norms and structures, and that it is the informality of global regulatory networks what makes them vulnerable to hegemonic domination. The conclusion then is to bring the law back in, reaffirming the equalizing potential of the constraints of legal and constitutional principles.