NGO Accountability and Legitimacy at Brooklyn Law School

I was privileged yesterday to take part in an exciting conference in New York yesterday at Brooklyn Law School, Governing Civil Society: NGO Accountability, Legitimacy and Influence. Congratulations to Professors Claire R. Kelly and Dana Brakman Reiser at BLS for putting it together. I was on one of the panels at this one day session and there were many other terrific people who represented a quite fascinating and too-rare mingling of the international law and nonprofit law worlds. As someone who cuts across both, I thought this was a great conference.

The issue that drove it was to ask (this is my summary) whether there is a way to bring together two basic questions about non-governmental organizations and nonprofit organizations in the international world, the transnational world, the global space: accountability in the sense of large political legitimacy, and accountability in the sense that is usually meant in non-profit and charitable organization law. So one panel addressed the interactions of NGOs and international organizations; a second addressed models of governance and regulation of NGOs; and the last panel asked whether and how legitimacy and accountability might be linked.

One of the takeaways for me was that the question of the legitimacy and governance function of international NGOs, global civil society, is still a salient question. I have long criticized (very sharply) the suggestion that international NGOs ought to have a legitimacy function within the international system, which is to say, a role in governance, even if you think, as I do not, that liberal international global governance is a good idea. But I had mostly stopped writing on this theme, except when specifically invited (here and here, for example), because I had thought that the idea had died away. That was something I thought I had learned from Anne-Marie Slaughter’s impressive A New World Order; she specifically rejects the global civil society-international organization partnership in governance as failing basic tests of legitimacy (I discuss this in a long review of the book). Instead, focus seemed to have shifted to the also important question of NGO accountability with respect to the performance of their own missions – internal governance of international NGOs, their relationships with governments in their operational work, and questions that implicate accountability and governance about them as institutions, not global governance.

More recently, however, I have realized that something that I thought had faded away as a model project in global governance is still around, somewhat incorporated into some of theories of global constitutionalism that have been a staple of European academic writing on global governance for many years. But definitely active once again as a proposed theory of global governance and legitimacy. So I guess I am back writing about it again. I am no more in favor of it than I ever was, I’m afraid. Of the academic international law writers in this area, the one who seems to me the most important is Steve Charnovitz of GW, who presented a very interesting paper at this conference. Steve always offers a careful and measured view, and this paper was exactly that, but also exceedingly interesting not just in the critique of critics like me, but in offering a step forward in a positive account of NGOs in governance. Indeed, in some respects it was quietly the most audacious of the papers at the seminar, because Steve set out the form of an argument for asking how anyone could propose to leave the NGOs out. I will very much look forward to reading the essay when published in the symposium issue.

At the broadest and most abstract level, I found that the crucial legitimacy issue was leading, as Weber said that it must, to questions of society and not just politics. That is, if legitimacy is the quality of a social order, and not merely a quality of a politics existing “interstitially” between political communities, then a crucial question will be, well, what society do you mean? Where is it to be found? Who are its members? How do they interact, reproduce, socialize each other – questions of sociology and social theory, in other words. My view is that governance is limited in international affairs to that which can be accomplished through a politics, not a society, and with the sharp limits on legitimacy that exist when all you have available to you is are political relationships, and not the deep, embedded, thick relationships of society.

The response from many people – I emphasize people as such – in the elite worlds of international organizations, international NGOs, international business, international academies and universities is that their relationships are thick enough to organize a society by which to govern the planet. If global governance does require a society, it it does not require a society of the whole world, the whole planet, of ordinary people, and their consent and participation. A society of the elites, moving horizontally among themselves, life in the jet stream, occasionally dropping down to earth in Geneva and New York and London, is enough to achieve both governance and legitimacy based upon their intrasocial relationships. (I do realize I’m not giving the idea its full due; particularly if your lens is the rise of the European Union, the idea of scalable governance based around the development of an elite bureaucratic class does not seem as implausible as my little insinuations above might suggest.)

I’d also add that it often seems most plausible to those whose formation and professional field of study and work internationally lies in trade and international economic law: those are the areas in which governance has achieved its most robust and binding results.  Part of one’s view of the achievability of global governance is premised upon whether and to what extent one believes that it can reach beyond these areas of high-shared-interest among parties to areas in which those shared values and interests are much harder to discern.  The model of governance is partly one of scalability from the model of the regional EU to the planet, and partly one of “bleed” from economic matters to such things as security.  None of this seems to me remotely plausible, but I also understand that if you’re a European theorist whose frame is the success of the EU, you see things differently.  All of that is quite apart from the role of NGOs in governance, as legitimacy providers and intermediaries to global communities.

In any case, the social theory to which I am accustomed would call this, even if it were possible, a theory of governance based upon the globalization of the New Class; speaking not as descriptive social theorist but moraliste, I’d say the global management of the planet by a Globalized New Class, or the attempt to socialize an elite to think it could do that, would be a … very bad idea. No a la rebelion de los elites, as Ortega y Gasset or Christopher Lasch might say.

(Still, it is yet another reason why the reassertion of robust social theory and the theorizing of the global New Class are crucial in the intellectual agenda that needs to move beyond hard but exceedingly narrow thinking of social theory = microeconomics, which is more or less where we are now. I proposed about five years ago to organize a conference in DC on elites and New Class theory, and apart from the editors of Telos, for whom this is bread and butter when not doing Schmitt, and Matthew Continetti of the Weekly Standard, the interest was a resounding zero. True, I had no travel funds to fly people in for a meeting, but it was remarkable to me how little interest there was just five years back. Would it be the same today?)

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