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ABSTRACT
We sketch a novel mode of governance—‘global ungovernance’ (GU)—which draws on and informs the articles in this special issue. GU operates in the context of transnational institution-building projects which at once pursue big visions with claims to universality (eg, building ‘markets’ or the ‘rule of law’), and at the same time offer no adequate prescriptions. We argue that the ‘impossibility of closure’ becomes a central problematic of practical activity in GU—by which we mean the ultimate practical impossibility of matching institutional structures with desired outcomes in these contexts. Viewed as a set of organised practices, GU evinces a commitment both to pursue closure and to embrace its impossibility, equally competently and even at the same time. As a result, GU changes the nature, purpose and conditions of possibility of institution-building techniques and practices.
Acknowledgements
The introduction, and the papers in this special issue, emerged from a workshop on “Global Un-Governance”, held at Edinburgh Law School in May 2019. We are grateful to the workshop participants for their willingness to engage with our ideas, and to the contributors to this special issue for helping us to develop them. We are further grateful to the editors and anonymous reviewers at Transnational Legal Theory for their engagement and support. We also acknowledge Edinburgh Law School and the University of Edinburgh Global Challenges Research Fund, for funding and supporting the workshop.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 David Kennedy, ‘The Mystery of Global Governance’ (2008) 34 Ohio Northern University Law Review 827, 828.
2 While ‘mode of governance’ is ‘usually polysemous, loosely defined, and often used without the necessary context’, we use it to refer to specific ways of organising practices and techniques of governance: Jean-Pierre Olivier de Sardan, ‘The Bureaucratic Mode of Governance and Practical Norms in West Africa and Beyond’ in Malika Bouziane, Cilja Harders and Anja Hoffmann (eds), Local Politics and Contemporary Transformations in the Arab World: Governance Beyond the Center (Palgrave Macmillan, 2013) 43, 49–51; Oliver Treib, Holger Bähr and Gerda Falkner, ‘Modes of Governance: Towards a Conceptual Clarification’ (2007) 14 Journal of European Public Policy 1.
3 Andrew Hurrell, On Global Order: Power, Values, and the Constitution of International Society (Oxford University Press, 2007) 20–21.
4 Stephen Humphreys, ‘Ungovernance of Climate Change’ (2020) Transnational Legal Theory (this issue) offers a typology of tensions and effects.
5 IISD’s SDG Knowledge Hub, ‘Guest Article: Are We Serious About Achieving the SDGs? A Statistician’s Perspective | SDG Knowledge Hub | IISD’ online: <http://sdg.iisd.org/commentary/guest-articles/are-we-serious-about-achieving-the-sdgs-a-statisticians-perspective/> accessed 21 January 2020.
6 Panel Report, United States – Countervailing and Anti- Dumping Measures on Certain Products from China, WT/DS449/R and Add.1 (adopted 22 July 2014,) as modified by Appellate Body Report WT/DS449/AB/R, DSR 2014:VIII, p 3175 para 10.189 and surrounding.
7 European Union – Measures Relating to Price Comparison Methodologies, DS516/13, Communication from the Panel (14 June 2019).
8 Samanth Subramanian, ‘Is Fair Trade Finished?’ The Guardian (London, 23 July 2019) online: https://www.theguardian.com/business/2019/jul/23/fairtrade-ethical-certification-supermarkets-sainsburys.
9 Zinaida Miller, ‘Embedded Ambivalence: Un-Governing Global Justice’ (2020) 11(3) Transnational Legal Theory (this issue).
10 It might be the experience of being misunderstood by an interlocutor, attending a meeting characterised by ‘talking past’ rather than ‘talking to’, a sense that the questions routinely being asked of you are not the ones you are equipped to address, a frustrating inability to replicate ‘success’, a narrowing of the perceived boundaries of one’s expertise and competence, and so on.
11 Geoff Gordon and Dimitri van den Meerssche, ‘Cultivating Machers: Risk and Resilience at the World Bank’ (2020) 11(3) Transnational Legal Theory (this issue).
12 We suspect that awareness of this fact has probably always been more prevalent than is typically assumed, though no doubt it varies over time.
13 Miller (n 9) (emphasis added).
14 Andrew Lang, ‘Governing “As If”: Global Subsidies Regulation and the Benchmark Problem’ (2014) 67 Current Legal Problems 135; Deval Desai and Mareike Schomerus, ‘“There Was A Third Man … ”: Tales from a Global Policy Consultation on Indicators for the Sustainable Development Goals’ (2018) 49 Development and Change 89.
15 Kevin E Davis, Benedict Kingsbury and Sally Engle Merry, ‘Indicators as a Technology of Global Governance’ (2012) 46 Law & Society Review 71.
16 Christine Bell, ‘“It’s Law Jim, But Not as Know It”: The Public Law Techniques of Ungovernance’ (2020) 11(3) Transnational Legal Theory (this issue).
17 See the conclusion to Miller (n 9).
18 Felix Rauschmayer, Sybille van den Hove and Thomas Koetz, ‘Participation in EU Biodiversity Governance: How Far Beyond Rhetoric?’ (2009) 27 Environment and Planning C: Government and Policy 42.
19 Hadi Nicholas Deeb and George E Marcus, ‘In the Green Room: An Experiment in Ethnographic Method at the WTO’ (2011) 34 PoLAR: Political and Legal Anthropology Review 51, 55–6.
20 Dominic Boyer, ‘Thinking through the Anthropology of Experts’ (2008) 15 Anthropology in Action 38, 40–42.
21 Susan Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1.
22 Fleur E Johns, ‘On Dead Circuits and Non-Events’ (University of New South Wales, 2019) Law Research Paper 19–80.
23 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press 2016); Robert Proctor and Londa L Schiebinger, Agnotology: The Making and Unmaking of Ignorance (Stanford University Press, 2008).
24 William Davies and Linsey McGoey, ‘Rationalities of Ignorance: On Financial Crisis and the Ambivalence of Neo-Liberal Epistemology’ (2012) 41 Economy and Society 64.
25 See eg, Jacqueline Best, ‘Ambiguity, Uncertainty, and Risk: Rethinking Indeterminacy’ (2008) 2 International Political Sociology 355; Ilene Grabel, When Things Don’t Fall Apart: Global Financial Governance and Developmental Finance in an Age of Productive Incoherence (MIT Press, 2018). Grabel embraces a non-cynical account of the instrumental use and value of the experience of indeterminacy.
26 Jacqueline Best, ‘Bureaucratic Ambiguity’ (2012) 41 Economy and Society 84.
27 Doug Porter and David Craig, ‘The Third Way and the Third World: Poverty Reduction and Social Inclusion in the Rise of “Inclusive” Liberalism’ (2004) 11 Review of International Political Economy 387, 398–402; Shahar Hameiri, ‘Failed States or a Failed Paradigm? State Capacity and the Limits of Institutionalism’ (2007) 10 Journal of International Relations and Development 122.
28 Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press, 2018).
29 Fleur Johns, ‘On Failing Forward: Neoliberal Legality in the Mekong River Basin’ (2015) 48 Cornell International Law Journal 347.
30 Michelle Burgis-Kasthala, ‘States of Failure? Ungovernance and the Project of State-building in Palestine under the Oslo Regime’ (2020) 11(3) Transnational Legal Theory (this issue), citing Anders Persson, ‘Palestine at the End of the State-Building Process: Technical Achievements, Political Failures’ (2018) 23 Mediterranean Politics 433, 434.
31 Christine Bell and Jan Pospisil, ‘Navigating Inclusion in Transitions from Conflict: The Formalised Political Unsettlement’ (2017) 29 Journal of International Development 576.
32 See Section 4 above.
33 Philip Mirowski, ‘Postface: Defining Neoliberalism’ in Philip Mirowski and Dieter Plehwe (eds), The Road from Mont Pèlerin (Harvard University Press, 2009).
34 Sebastian Schindler and Tobias Wille, ‘How Can We Criticize International Practices?’ (2019) 63 International Studies Quarterly 1014, 1016, 1020.