Constituting Capitalism: Corporations, Law, and Private Transnational Governance

Transnational business corporations exercise a growing but inadequately analysed influence on the development of rules that regulate local and global political economies and societies. This paper seeks to understand the increasing importance of transnational corporations and the laws governing them in global governance and in constituting the material and normative foundations of transnational capitalism. This paper posits the specificity of legal regulation under contemporary capitalism, and develops a theory of private transnational governance that draws upon a critical understanding of the nature of “private authority” in global governance. It argues that transnational corporations are crucial participants in globalizing and legitimizing increasingly privatized legal forms that modify, and even displace, public modes of governance in global trade, investment, and corporate social responsibility regimes. Private transnational governance is argued to raise acute analytical and normative concerns. This analysis advances the “commodity form” theory of law as central to understanding how private transnational governance both expands and legitimates transnational capitalism.