I wanted to start this, my final post, by thanking the keepers of CoOp for allowing me to blog here this month, as I try to sort out my thoughts about contract social responsibility (KSR), the idea that contracts might seek a form of social justice, e.g., eliminating slavery through supply chain agreements or racial discrimination through “inclusion riders” in movie production contracts.
My prior post suggested that KSR differs from the private, pre-political and bilateral contracts that dominate the contractualist imagination because it would use private ordering to achieve public and political goals. I want to talk today about two analytic approaches that might supplement contractualism, institutionalism and relationalism.
I also want to talk about the awkward silence that may follow asking hard questions about KSR at home.
But start with “institutionalism,” a broad and fancy term. I mean by it the study of social organizations at a high level of generality, superstructures in which law is a constitutive but not necessarily defining element. For my purposes, the variant that seems most tractable sometimes travels under the name “experimentalist new governance” (ENG), a literature often associated with Sabel and Simon.
As they and others have observed, states no longer use command-and-control mechanisms to achieve many public policy goals. Instead, social problems are often solved by public-private partnerships, quasi-autonomous standard-setting organizations, voluntary alliances, monitoring, and experimentation. Examples include food certification, sustainable forestry, and environmental protection. Read More