Transnational Governance, Deliberative Democracy, and the Legitimacy of ISO 26000: Analyzing the Case of a Global Multi-Stakeholder Process

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1 Transnational Governance, Deliberative Democracy, and the Legitimacy of ISO 26000: Analyzing the Case of a Global Multi-Stakeholder Process Prof Dr. Rüdiger Hahn & Christian Weidtmann This is a non-final and non-copy-edited version of an article which was accepted for publication in Business and Society. For citations refer to the final article: doi: / Link: Earlier versions of this article were presented at the 51 st ISA Annual Convention 2010 and at the Academy of Management Annual Meeting 2011 Abstract Globalization arguably generated a governance gap that is being filled by transnational rulemaking involving private actors among others. The democratic legitimacy of such new forms of governance beyond nation states is sometimes questioned. Apart from nation-centered democracies, such governance cannot build, for example, on representation and voting procedures to convey legitimacy to the generated rules. Instead, alternative elements of democracy such as deliberation and inclusion require discussion to assess new instruments of governance. The recently published standard ISO is an interesting example of transnational governance. ISO was developed in a lengthy multi-organizational process for the purpose of giving guidance on the social responsibility of organizations. By assessing the specific case of ISO 26000, this study sheds light on the question of how legitimacy beyond nation-state democracy is ensured or constricted. Centering on the idea of deliberate democracy and democratic legitimacy, the study offers in-depth insights on the normative legitimacy of the development process of ISO Positioned on the interface of business studies and public policy, this article contributes to the academic literature on transnational governance and on the role of multi-stakeholder processes in shaping the role of business in society. 1

2 Ongoing globalization tendencies are arguably connected with a decreasing regulative power of nation states and a growing influence of (multinational) corporations and different interest groups (e.g. Beck, 2005; Habermas, 2001; Hurrelmann, Schneider, & Steffek, 2007; Wettstein, 2010). Politics is no longer tied exclusively to national governments and state actors. At the same time, private actors and especially private (multinational) enterprises are called to take over responsibilities and leverage their resources for societal issues as well as to actively engage in shaping the rules of doing business (e.g. Matten & Crane, 2005; Scherer & Palazzo, 2007). However, a critical mindset towards private enterprises and their influence in society often prevails (Palazzo & Scherer, 2006). Moreover, related concepts such as corporate responsibility so far seem to be elusive and crudely defined at best (Dahlsrud, 2008) and measures pursued under the notion of corporate responsibility vary widely. Against this background, in 2001 the International Organization for Standardization (ISO) set out to draft a unilateral standard on social responsibility (SR) to provide a common and internationally agreed characterization of organizational responsibilities (ISO, 2009c). The new guideline ISO sets out to encourage every organization to become more socially responsible by using this International Standard. Further, it aims to offer ways to integrate socially responsible behavior into the organization (ISO, 2010e, p. vi). To facilitate SR, it offers guidance on the scope of SR for various types of organizations. As a non-certifiable, voluntary guidance document it provides best-practices examples and possible courses of actions on the implementation of responsible management practices of various kinds of organizations. However, given the above noted decreasing regulative power of nation states coupled with the growing influence of private actors some scholars foresee a governance gap (Quack, 2010). This gap is increasingly being filled by transnational rule-making and institution-building as the 2

3 number and proliferation of different kinds of standards demonstrates (Gilbert, Rasche, & Waddock, 2011). Such standards are often regarded as new governing mechanismsinvolving private, civil society, and state actors and they play an important role in international business relations to overcome the institutional barriers of single nation states (Palazzo & Scherer, 2006; Wieland, 2007). Other than laws and regulations, the resulting norms and guidance documents are usually voluntary in use, not legally binding, and not enforceable (Fransen & Kolk, 2007). Many scholars share a concern that new modes of governance do not always sit easily within traditional conceptions of (democratic) legitimacy and accountability (Klijn & Skelcher, 2007; Quack, 2010; Sørensen & Torfing, 2005; Zürn, 2004). Some even suggest that there might be a severe mismatch between new forms of governance on the one hand and traditional representative institutions on the other (Skelcher, 2007). Such critical views point to the managerial relevance of the present topic: On the one hand, organizations (and especially private businesses) are increasingly expected to actively participate in shaping the rules of society. On the other hand, it is sometimes feared that transnational governance might threaten traditional representative democracy since it would undermine the distinction between state and society (e.g. Sørensen & Torfing, 2007). Therefore, the development process of ISO proves to be an interesting object of study since it not only deals with an intensely debated field in international business (namely the SR of organizations). Its mode of finding consensus in a multi-organizational, multi-stakeholder process is particularly suitable for a legitimacy assessment in light of the previously highlighted issues of transnational governance. Since traditional elements conveying legitimacy (such as elections, democratic representations, and public control) do not apply to the novel elements of governance in question, new ways of establishing democratic procedures granting legitimacy are being 3

4 discussed. Within this context, this study reverts to the concept of deliberative democracy (Dryzek, 2000; 2001; Habermas, 1994, 1996, 2003) that focuses on open and inclusive deliberation instead of democratic representation and elections. Based on this thinking, the general conditions as well as the open and more subtle elements of deliberation in the development process of ISO are analyzed in this article. The aim is to shed light on the question of how legitimacy beyond nation-state democracy is ensured or constricted. The analysis of the unique ISO development process thus contributes to the scholarly conversation on transnational governance and on the standardization of SR. It provides insights on the prospects and limitations of using (and analyzing) elements of deliberative democracy and normative legitimacy for standardization processes on the intersection of political and managerial science. Castka and Balzarova (2008a, p. 303) claim that the extensive multistakeholder discourse leading to the development of ISO resulted in the most legitimate CSR document currently available. However, they do not give further reason on how legitimacy comes into place and why ISO should be regarded as a legitimate document. This article distinguishes input legitimacy, throughput legitimacy, and output legitimacy (Dingwerth, 2007; Quack, 2010; Scharpf, 1997)to pursue three main questions: (1) How legitimate is the participation of various societal players in the development process of ISO 26000? (i.e. input legitimacy). (2) How legitimate is the design of the development process? (i.e. throughput legitimacy). The third question dealing with output legitimacy, (3) Is the outcome of the development process suitable to serve the functions for which it was set up? (i.e. output legitimacy), can only be answered partly and preliminarily for reasons discussed separately below. 4

5 Following this introduction, the remainder of this article is structured into four sections. Since aspects of normative legitimacy have so far mainly been covered in political science, the article will commence in the first section by introducing ISO as an element of transnational governance in the realm of international management and business research. The single case study research design is then justified. The second section begins by sketching the connections and differences between empirical legitimacy (which has intensively been used within organizational science so far) and normative legitimacy. This outline of different legitimacy aspects is used as a starting point for the theoretical underpinnings of normative legitimacy. The concept of deliberative democracy is then explored and the different dimensions of legitimacy are itemized along different criteria that will be used for the subsequent analysis. Based on these insights, the centerpiece of this article is an in-depth analysis of the development process leading to the publication of ISO in section three. Finally, a conclusion is reached in the final section. ISO and Transnational Governance: Background and Research Approach This article aims to convey aspects of normative legitimacy into the realm of management and organizational research and to test this conceptual foundation in the context of international business relations. This section establishes the basis for this effort by providing a brief introduction of the ISO standard as a key element of transnational governance before outlining the validity of a single case study as the main research method for the study. Research Background 5

6 The ISO s lengthy and intensive development process comprising several stages of drafting and consensus-finding among different groups of society can be regarded as a prominent example of transnational governance in a field that has seen much discussion and little consensus so far (Crane et al., 2008). Former research in managerial and in political science has dealt with adjacent issues within the realm of transnational governance. A robust stream of research focuses on assessing the functionality and effectiveness of decentralized and non-binding modes of selfor soft regulation on the level of single actors, industries or technologies by means of conceptual and empirical research (e.g. Fransen & Kolk, 2007; King & Lennox, 2000; Koutalakis, Buzogany, & Börzel, 2010; Lyon & Maxwell, 2001). In a global business context, the ISO and its numerous national standardization organizations can be characterized as the most important institution(s) for voluntary technical and non-technical standards. Thus, it is not surprising that different ISO standards have gained extensive recognition within managerial research (e.g., Beck & Walgenbach, 2005; King, Lennox, & Teerlak, 2005; Tamm Hallström, 2004; Terlaak, 2007). Börzel and Risse (2010) indicate that various forms of transnational governance can indeed potentially replace hierarchical governance. However, like governments, whose coercive capacity is reinforced by their legitimacy, non-state market driven systems require legitimacy to justify policy development Unlike sovereign states, which by definition possess legitimate authority, non-state market driven systems must actively achieve political legitimacy (Bernstein & Cashore, 2007, p. 351). This article specifically aims at fostering the understanding of the (potential) legitimacy of such forms of international standardization on a normative level. To achieve this goal, the specific case of ISO is discussed. Such aspects of legitimacy are indeed an intensely discussed field in contemporary research (see Ansell, 2008; Quack, 2010). Wolf (2006), Risse (2006), or Bernstein and Cashore (2007), 6

7 for example, explored aspects of legitimacy within transnational governance with a distinct focus on political science. Other than the present study, however, previous scholarship concentrates on deriving an initial analytical framework rooted in a political science background. Empirical research on different transnational governance has emerged only recently so that Meidinger (2008) as well as Sundström, Furusten, and Soneryd (2010) still identify a shortage of empirical studies on participation and legitimacy. The present article complements this stream of research by means of an in-depth analysis based on a single case study building on concepts from different scholarly disciplines. It puts a special emphasis on political science, social philosophy, and jurisprudence by applying these insights to the field of transnational governance and international business. Object of Study, Method and Data For the ISO, the development of ISO was a unique approach. Their former standardization efforts up to then did not build upon the insights and input of such a heterogeneous group of participants including experts from outside the ISO system. With regard to ISO s worldwide influence and pervasiveness, this process can be positioned as a critical case on the interface between international standardization and transnational governance. As such, it qualifies as a holistic single case study (see Sigglekow, 2007; Yin, 2009) offering a rich analysis of the legitimacy of the development process. Eisenhardt and Graebner (2007) propose using multiple methods of data collection by multiple investigators. As described below, a variety of data sources has been employed to analyze the lengthy development process of ISO During the analysis, the authors found that current theories of legitimacy used in managerial and organizational sciences were not suitable to assess the increasingly important phenomena of transnational governance in the business sphere. Thus, this study focuses on the development of 7

8 ISO as a distinct and so far unique process within transnational standardization. It is anchored in an interdisciplinary realm of organizational and political science. By focusing on aspects of normative legitimacy, this article supplements studies within organizational science which so far mainly used neo-institutional theory to discuss the proliferation of different ISO standards (see Beck & Walgenbach, 2005; King et al., 2005; Tamm Hallström, 2004). The data for the empirical findings were derived from the extensive material on the development process provided by the ISO. At the time when ISO was published in November 2010, these data included more than 1,600 documents accessible via the online ISO Livelink area ( This material comprised, for instance, various drafts of ISO 26000, minutes of the working group meetings, working documents, resolutions, comments, and results of ballots. These documents have been independently screened and analyzed by both authors. The data is complemented by narrations of experts who participated in the development process. Additionally, surveys conducted by independent researchers and by ISO itself were also included in the analysis. Theoretical Context of Legitimacy Before applying the research design introduced above to the empirical data of the ISO development process, the following section presents the various aspects of legitimacy as the underlying theoretical construct of this study. Initially, a general distinction is made between empirical legitimacy (focusing on the actual acceptance of social rules, organizations, or structures) and normative legitimacy (refering to the question under which conditions such rules, organizations, or structures can be perceived as legitimate). Then, building on the concept of deliberative democracy, the notion of normative legitimacy is more concretely examined by 8

9 categorizing it into an input, a throughput and an output dimension to allow for a better itemization for this and potentially also for following empirical case studies. Empirical and Normative Legitimacy The exact notion of legitimacy varies by scientific discipline, and depending on the object of investigation, research objective or otherwise (Johnson, Ridgeway, & Dowd, 2006; Kumar & Das, 2007). When referring in particular to organizational and political science, a first and common distinction can be made between empirical (or sociological) legitimacy focusing on the actual acceptance of social rules, organizations, or structures and normative legitimacy which refers to the question under which conditions such rules, organizations, or structures can be perceived as legitimate (Dingwerth, 2007). The notion of empirical (or sociological) legitimacy is often used in organizational science. In his seminal article, for example, Suchman (1995, p. 574) framed it as a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions. In her interdisciplinary work between political and organizational science, Quack (2008, p. 8) similarly framed it as people s perceptions of the rightfulness and appropriateness of authority for their acceptance and support for political and social order. In sum, empirical legitimacy can thus be perceived as generalized perception of social acceptance (Vergne, 2011, p. 484) placing the factual acceptance in the middle of thinking (Dingwerth, 2007). Without such socially assigned legitimacy, an organization s ability to achieve its goals might be considerably constricted. According to these terms, legitimacy is the empirical outcome of actual acceptance within society which is large enough to ensure the survival of the legitimacy seeking institution or organization. 9

10 Normative legitimacy, however, asks for the reasons why social rules, organizations, or structures can be perceived as legitimate. In past scholarship, normative legitimacy has been intensively covered within political science in references, for example, to process and procedures which constitute certain (political) rules and structures. Dingwerth (2007) consequently also terms the main aspects as democratic legitimacy and thus concentrates on democratic criteria of inclusiveness, transparency, and equality which also play a central role in this analysis. Institutions which are perceived to hold normative legitimacy are those with a widely accepted mandate which has been rightfully imposed (Quack, 2010). Therefore, the normative question of acceptability and how it can be achieved from a procedural perspective takes precedence. In short, empirical legitimacy focuses on the acceptance of a governing instrument by actors, whereas normative legitimacy addresses the legitimacy principles in developing and possibly enforcing these instruments or as Dingwerth (2007, p. 15) phrases: When do people have good reason to accept decisions as rightful? Despite the fact that they are usually discussed independently, both concepts are deeply connected: Acceptance in empirical legitimacy can relate to normative principles and such principles which are brought forward in philosophical or political beliefs can influence empirical legitimacy beliefs. By focusing on normative legitimacy, the authors aim to complement the perspective of empirical (or social) legitimacy that often prevailed in previous organizational studies and business research (e.g. Vergne, 2011). As stated in the introduction, the notion of normative legitimacy within transnational governance is of growing relevance in international management. This study focuses this view and sets the stage for consecutive studies of the ISO s empirical legitimacy which can only be assessed after the standard has been in use for some time. Instrumental and Normative Perspectives 10

11 When turning to normative legitimacy (i.e. focusing on the acceptability of governance processes), an instrumental as well as a normative perspective needs to be distinguished. Normative legitimacy of non-governmental institutions is receiving growing attention due to the indicated shift in attention from national governments towards institutions of transnational governance imposing worldwide standards or rules (Ansell, 2008; Quack, 2010). Yet, institutions within the sphere of transnational governance usually have no legally binding or implementing power similar to those of governmental rule. They shape the ways of doing business either through voluntary self-binding measures (e.g., industry codes of conduct or standards of behavior) or by posing external pressure on actors within their sphere of influence (e.g., when a voluntary standard becomes a de facto standard). However, normative legitimacy deficits have been identified as generating problems with social acceptance and perceptions of normative legitimacy flagged as influential for the effectiveness of transnational governance (Quack, 2010, pp. 7-8). Therefore, a lacking normative legitimacy of transnational governance institutions and their development processes could limit the influence of these institutions if they are not perceived to be legitimate modes of governance by those who are affected. If the new standard or similar efforts of transnational governance fail to demonstrate their legitimacy they might be especially fragile and prone to scrutiny (for example, by political and civil society actors). Such a legitimacy crisis could thus trigger a deteriorating effectiveness and efficiency of the standard or could even put it into question in general. These thoughts so far point to an instrumental perspective of legitimacy since a legitimate development process might foster social acceptance and voluntary obedience (or at least the proliferation of usage of the standard). The problem with an exclusively instrumental approach, however, is twofold. First, the causal relationship between a legitimate development process of transnational governance 11

12 (defined by whichever criteria) and adherence to the resulting norms and standards is empirically not assured and thus ambiguous. Second, the mere perception of legitimacy cannot be a sufficient rationale for truly legitimate standardization processes since it might succumb to a superficial mantle of legitimacy (Raz, 1990, p. 3) or as Wettstein (2010, p. 280) illustrates: This perception of legitimacy may or may not be justified; accordingly, we must distinguish between normative authority and authority that is merely de facto. An instrumental view of legitimacy thus does not provide a moral grounding but is rather fuelled by the supposed outcome. Starting from the normative deficiencies of a narrow instrumental approach, Scherer and Palazzo (2007) persuasively argue that a particular concept such as (C)SR needs to build upon a normative justification to overcome the mentioned deficits. In following their reasoning it can be argued that a normative perspective is especially important for a voluntary norm which sets out to provide guidance on SR: A standard that particularly influences the behavior of organizations towards society can be expected to build upon a legitimate development process characterized by its acceptability in society. This thought, however, directly begs the question of what constitutes a legitimate development process. Democratic Legitimacy and Deliberative Democracy in Transnational Governance When elaborating on the rules and conditions under which a given instrument of governance is deemed legitimate, nowadays democratic principles normally stand at the center of thinking (Steffek, 2003). As mentioned earlier, new forms of governance are often connected with a global democratic deficit that must be reduced if world-wide arrangements are to be legitimate (Linklater, 1999, p. 477). As a consequence, establishing effective democratic procedures is regarded as essential in gaining legitimacy (Clark, 2010). From a top-down perspective, democratic arrangements provide legitimation to institutions, rules, and norms (Abromeit & 12

13 Stoiber, 2007). From a bottom-up perspective, these arguments are supposed to safeguard that those who are affected by the respective instrument of governance are not subjected to rules which they cannot accept. With transnational governance, however, the traditional perspective of (representative) democracy becomes weaker since such forms of governance are not subject to the principle of elected individuals representing the people (Kjær, 2004; Sundström et al., 2010). Consequentially, new ways of establishing democratic procedures granting legitimacy are being discussed. The question of democratic legitimacy becomes even more pressing when looking at the various players influencing transnational governance beyond the single state. Businesses are licensed to operate as economic actors and non-governmental organizations (NGO) or similar interest groups are licensed to act as advocates for specific issues. However, none of these actors are elected or democratically controlled by the public (Scherer & Palazzo, 2007). An approach compatible with new forms of governance under the conditions of globalization is often seen in the concept of deliberative democracy (esp. Habermas, 1994, 1996, 2003). According to this concept, democratic legitimacy is achieved if all parties which are affected by an instrument of policy have the opportunity to participate in its development through deliberation. The center piece of legitimacy thus rests in communication processes which aim at building consensus (or at least mutual understanding) among the actors involved (Dryzek, 2000). Apart from the need to find alternatives modes of democratic legitimization beyond traditional (nation-based) democracy, various scholars point to the inherent benefits of deliberative democracy. Barker (2010), for example, argues that deliberative democracy [ has] been developed in part to remedy the deficiencies of democracy (p. 25) and he adds that there is a difference between a government that stands above and beyond subjects, and a process of rule deliberation and rulemaking in which all those affected by the rules are involved. Simple 13

14 representative government does not provide the latter. Democracy as a feature of politics does. (p. 27) The same applies to transnational governance: International norm-setters such as the ISO rely on voluntary involvement in norm development processes and on voluntary adherence to the norms. Consequentially, they build on deliberative processes to underpin the authority of their products (Higgins & Tamm Halmström, 2009, p. 995) or put differently: Any norm derived from such a governance process has to prove that it can be considered justified by being tested in a deliberative process with the affected parties (Scherer & Palazzo, 2007). Such testing places extensive demands on the governance processes to include criteria of deliberative democracy to gain democratic legitimacy as will be discussed in greater detail below. Criteria of the Input, Throughput, and Output Dimension of Normative Legitimacy Building on the concept of deliberative democracy, normative legitimacy in transnational governance derives from processes and results of public consultation which are not part of national democratic decision-making. The outcome of such processes achieves its legitimacy from the degree to which these processes reflect the plurality of views in the public sphere and among the affected parties (Palazzo & Scherer, 2006). The challenge here is to identify new criteria for democratic will formation (and legitimization) beyond nation states integrateing new actors such as businesses and NGOs. To assess normative legitimacy and expose such deliberate democracy criteria, the dimensions of input, throughput, and output legitimacy require consideration (Dingwerth, 2007; Quack, 2010; Zürn, 1998). Normative legitimacy is not subject to a digital 1-0 assessment but instead ranges on a continuum which will be assessed based on the criteria introduced in the following (similar to Abromeit & Stoiber, 2007). First, the input dimension deals with the question of which parties should be involved in decision-making. Turning to democratic legitimacy, the initial question centers around the aspect 14

15 of how to define the notion of the people in transnational governance. Because transnational governance crosses the border of nation states, the answer goes beyond the simple question of citizenship. Instead, the main issue from the perspective of deliberate democracy is whether the interests of all the relevant actors are sufficiently considered (i.e., is the governance process outcome based on the approval of the direct addressees and of those additional potential actors who are indirectly concerned). When examining transnational governance and in particular international standardization, it is necessary to consider whether the standard is derived directly or indirectly from the authentic preferences and needs of the parties concerned, and whether it appropriately considers the demands and preferences of the rule addressees (Matz, 2005; Scharpf, 1997). To elaborate, this aspect deals with the key participants of the rule-generating and decision-making processes. To achieve democratic legitimacy, those who are affected by a decision must be able to take part in the preceding governance processes and have an equal opportunity to engage in the discourse (Deitelhoff & Müller, 2005; Risse, 2006). The underlying rational is that a broad inclusion of constituents contributes to rationality and stability of the process due to a more extensive articulation of reasons (Scherer & Palazzo, 2007). Significantly, effective deliberative processes rely on the meaningful input of the participants so that the qualification or expertise of those included in public consultation can be included as additional criterion (Quack, 2010). Second, throughput legitimacy builds upon a given input legitimacy and covers the precise features of decision-making within the governance process. It asks which conditions need to be fulfilled when taking decisions (i.e., does the outcome rest on fair procedures of decisionmaking) and thus deals with the procedural level of discoursive decision-making (Matz, 2005). The central question addresses the in which way decisions are made (Rapkin & Braaten, 2009). 15

16 Throughput legitimacy focuses on how the aggregation of individual preferences is established and in how far the rule-making actors are accountable for their actions towards the rulefollowing actors (Bäckstrand, 2010). In democratic governmental systems, rulers are accountable to citizens through mechanisms of representation and elections. In transnational governance, however, no conventional electoral procedures guarantee a legitimate representation. In deliberative democracy instead, legitimacy is gained through procedures of deliberation in a public sphere (Habermas, 1996). As a result, the analysis focuses on the modalities of communication and decision-making as well as the transparency of the process and its underlying rules. Process transparency is regarded as an enabling factor of accountability influencing democratic legitimacy. The argument is that the chance of (public) control of decision-making processes is an essential aspect of accountability because it leads to decisions which are based on reason rather than on the sole basis on the asymmetric power resources of the participants (Deitelhoff & Müller, 2005; Meidinger, 2008). The vital assumption for the approval of legitimate process throughput is that only informed actors are able to voice their concerns and thus to actively integrate themselves in order to exert their monitoring-function within transnational governance (Take, 2008). Third, to complete the picture, the output dimension is introduced as last element of normative legitimacy. Whereas input and throughput legitimacy refer to the procedural aspects of a deliberative process, output legitimacy refers to the actual result of a process and its problem-solving capacity (Rapkin, & Braaten, 2009). Thus, it is a subsequent element of normative legitimacy that is based on the aspects of democratic legitimacy presented above. Accordingly, output legitimacy is a twofold dimension: The first aspect examines whether the process fulfills the goals it set for itself and whether the (intended) outcome is achieved (Matz, 16

17 2005). The second aspect refers to the quality of this outcome i.e. whether the outcome is suitable to problem-solving and leads to the desired goals (Bäckstrand, 2010). Both aspects can be summarized as normative since the goals to which both aspects of output legitimacy refer to are not an unambiguous and objective final state but rather prone to (normative) interpretation (not least since SR or corporate responsibility itself is a distinctively normative concept; e.g., Hahn, 2011). However, despite being an element of normative legitimacy, the output dimension is not a constituent element of democratic legitimacy since it lacks the procedural focus of the other two (Dingwerth, 2007). Instead, it focuses on the outcome of the preceding procedures. As a result, output legitimacy will only be a side aspect in the analysis below. Since ISO has to date only been in use for a limited amount of time, the actual outcome of applying the new standard cannot be assessed, yet. Consequently, an assessment of the quality of the problemsolving capacity of the standard will have to await the results of subsequent empirical studies. However, in the meantime the potential institutional effectiveness of ISO can cautiously be assessed insofar as it can be derived from input and throughput legitimacy as well as from its actual content. Analysis and Discussion of the Normative Legitimacy of ISO Based on the concept of normative legitimacy, this section undertakes a detailed analysis of the development process of ISO It covers the main elements of deliberative democracy that were introduced above. To elaborate, the evaluation is structured along the basic dimensions of input legitimacy (focusing on the balance and expertise of stakeholder representativeness and on the balance of regional representativeness ) and on throughput legitimacy (focusing on the modalities of communication and modalities of decision-making and on the 17

18 transparency of the development process ). Furthermore, a brief outlook on output legitimacy will also be provided. Input Legitimacy of ISO Input legitimacy refers primarily to the representativeness of the rule addressees in the development process. In doing so, it facilitates consideration of the interests of all the relevant parties. Due to the extensive range of addressees and due to the broad content of SR the participatory quality of the decision-making processes is a decisive factor to assess the input legitimacy of ISO As a result, this section assesses whether a balanced representation of the various relevant stakeholder groups is achieved and whether such a representation then leads to an appropriate consideration of the various interests. The focus of the analysis is on the balance of the different stakeholder groups per se, as well as in terms of their regional (geographical) representativeness. These two measures were chosen because the ISO is intended as an inclusive document that can be used by various types (and sizes) of organizations from different societal backgrounds or industries in different parts of the world (ISO, 2010e). Consequently, the assessment of these two criteria aims to indicate whether the composition of the ISO SR Working Group participants reflects this theoretically unlimited sphere of usage (thus fulfilling the general requirement of deliberation by appropriately allowing for the participation of all parties who might be affected by the standard). Balance and expertise of stakeholder representation. Due to the fact that a radical democratic representation (in terms of full participation of every single actor) is impossible to achieve, Habermas (1994), in his concept of deliberative democracy, embraces the idea of moving to an association of citizens (in form of NGOs, civil society networks or otherwise) to facilitate a representation of stakeholder ideas. Other scholars, however, dismiss the idea that such a 18

19 representation can be suitable to act for a global society. Apart from the fact that, for example, marginalized groups might not be represented and transparency might not be ensured within these groups (Kjær, 2004), Howse (2001) already quite generally criticizes international civil society as a self-selecting mélange of individuals and organizations. (p. 362) Nevertheless, a representation of some form appears necessary in order to ensure the effectiveness of deliberative processes through information transfer as well as opinion and preference formation (Clark, 2010). Already earlier efforts in the (C)SR domain such as the later revisions of the OECD Guidelines for Multinational Enterprises embraced a variety of stakeholders. For the revision of the OECD guidelines in 2000 and 2011, an informal consultation committee of different actors was convened (Salzmann, 2005). This group, however, included only selected NGOs and experts from trade unions and business representatives without necessarily ensuring a balance of different stakeholder groups. Moreover, NGO representatives were only included in the drafting phase where they participated in focus groups to comment and brainstorm on relevant issues. The ISO development process stroke a new path in systemizing the representation. Members of the ISO Working Group (WG) were subdivided in six stakeholder categories ( Consumers, Government, Industry, Labor, NGO, and Service, support, research and others (SSRO) ; ISO, 2005b) in order to support a balanced representation of the different stakeholders which meets the various interests of the addressees of the guideline. ISO member bodies (i.e., those national bodies that represent their country within the ISO) were allowed to nominate up to six persons (one for each of the six stakeholder categories). These nominees hold an expert status that includes the right to participate actively at the different drafting stages (ISO, 2004b, 2009d). Each member body was also encouraged to establish a national mirror 19

20 committee to integrate further expertise into the development process to support the WG experts. Moreover, international or regional non-iso organizations could acquire a so called D-liaison status with the right to nominate up to two experts with the same status as other nominated experts (ISO, 2004b). Since SR as subject of ISO involves numerous issues beyond mere technical standardization, the inclusion of experts from various stakeholder groups seems appropriate in order to generate a broad expertise within the community of nominated experts. Therefore, the decision to include D-liaison experts can be regarded as beneficial for the overall expertise of the group if it can be assumed that those D-liaisons who nominated experts are especially well equipped to deal with various aspects of SR. This conclusion is supported by the type of prominent D-liaisons who sent experts to the WG (e.g., UN Global Compact, Transparency International, World Health Organization, Global Reporting Initiative, and numerous others). In May 2010 the WG consisted of 450 experts from more than 80 countries (ISO, 2010c). The overall representation within the WG showed no dominating share of any single group so that the setting of a maximum number of experts from each stakeholder group (and country) effectively restricted, for example, financially more affluent groups from dominating the process. When drawing upon the Gini coefficient as an indicator of inequality in distribution, a value of 0.18 in May 2010 (improved from 0.27 in March 2005) indicates a comparably well balanced representation. This trend towards equal representation correlated with a disproportionately high growth of smaller groups and an increasing overall number of experts during the development process. However, since private enterprises were expected to be the main adopters of the ISO (Castka & Balzarova, 2008b; Schmiedeknecht, 2008), it might had been argued that they should had been represented with a higher share in order to reflect the anticipated factual 20

21 diffusion of the guideline. Apart from building upon speculation (since during the development process the standard was apparently not in use, yet), such a claim does not ally with the fact that an overarching goal of ISO is to contribute to sustainable development (ISO, 2010e). Sustainable development reflects the idea of global intragenerational and intergenerational justice (World Commission on Environment and Development [WCED], 1987). Since the ISO focuses not only on the needs of its direct users but moreover on the needs of all groups of society, the representativeness of the addressees in the development process should not (only) be equated with the representativeness of the anticipated eventual users of ISO but more importantly with the representativeness of those who might be affected by it. In addition to these aspects, the composition of the WG with its six categories of stakeholders where each single expert represents the interests of its whole group can also be discussed from a more fundamental perspective. It might be argued that the grouping of participants was too inaccurate to reflect the manifold demands of the various stakeholders within each group. The two groups probably most affected in the process were Industry and NGO. For example, small and medium-sized enterprises as well as large transnational corporations are both included in the Industry group despite their very different attributes and concerns (Perera, 2009) whereas the NGO group can be regarded as even more heterogeneous due to the combination of such diverse aspects as human rights and biodiversity under the same roof (Boström & Tamm Hallström, 2010). While this heterogeneity indeed might have hampered the decision-making processes within these groups, a further differentiation into various subgroups would have increased the number of experts. Such an increase could have led to difficulties in consulting, voting, and reaching consensus. Further, Wieland (2007) suggests that exceeding a critical mass of experts is likely to introduce significant barriers for an effective 21

22 development progress. In this case, since the WG meetings required the realization of substantial resources, it appears that the final number of experts was close to reaching its maximum capacity. Instead of a further differentiation of stakeholder groups, differing concerns and viewpoints could already be voiced within these groups. This procedure directly leads to the question of the input legitimacy of each single group since the experts are supposed to represent the position of their various principals. Here again, a balanced representation of those principals who develop the position of the whole group (as well as its outcome which is respectively voiced by the expert) clearly requires assessment. Such an analysis, however, was beyond the scope of this study. As was the case with the WG experts from different stakeholder groups, a balanced representation of stakeholders is also needed in the already mentioned national mirror committees. More specifically, the aim of these committees was to integrate potentially different national stakeholder interests into the international development process. The integration of interests was achieved via a continuous exchange of information and the option to submit comments to the WG (Castka & Balzarova, 2008b; ISO, 2009c). While already in 2006, 72 percent of participating countries had mirror committees, only 62 percent had representatives from all six stakeholder categories and 30 percent of the countries admitted that their committees were not in accordance with the principle of a well-balanced representation of participation (ISO, 2007a). As a consequence, the participating parties of the WG meeting in May 2009 were again requested to take active measures to achieve an appropriate balance across the stakeholder categories in their mirror committees (ISO, 2009f). Due to the unbalanced representation in some mirror committees, communication might have been unbalanced or influenced by the interests of certain stakeholders thus limiting democratic legitimacy in this aspect. 22

23 Balance of regional representation. Since ISO is intended as a worldwide standard, the regional balance of representation can be regarded as a supplementary criterion of input legitimacy. Former standard-setting processes were sometimes criticized for an insufficient representation of developing country experts that led to a Westernization of standards (Castka & Balzarova, 2008b; Gilbert & Rasche, 2007). The most visible effort to ensure a regional balance in the ISO development process was the twinned leadership of the WG that was led by the ISO member bodies Brazil and Sweden (ISO, 2009c). Further, in May 2010, 70 percent of the WG experts came from developing countries up from 47 percent in May 2005 (ISO, 2010c). Hence, during the lengthy consultation process towards developing the ISO the regional allocation of experts increasingly mirrored the actual (albeit highly simplified) status of worldwide society. Nevertheless, given that the guideline might have been assumed to be mainly employed by organizations from industrialized countries, one could have argued that this representation does not reflect the real circumstances of future ISO adoption. However, at the time of development it was not yet clear where the potential users of the standard would come from so that any bias towards a specific group would not be justified if solely taken on grounds of speculation. To avoid such a bias, the representation should instead reflect the true circumstances of society. Such a reflection helps to prevent any ex-ante limitation of input legitimacy and more significantly, reflect the claim of sustainable development which explicitly highlights the essential needs of the world s poor (WCED, 1987, p. 43). This claim directly triggers the question of how such a representation can be achieved. Each country had the same weight in the development process irrespective of other criteria such as population or GDP. This is not unproblematic when picturing that, for example, China had the same voting power as Barbados. 23

24 However, attaching voting power to GDP might directly conflict with the idea of sustainable development (since it would lose sight of the voices of the poor), whereas an allocation on the grounds of total population could potentially suppress the needs of minorities (White, 2005). In summary, the analysis above indicates that a perfect input legitimacy based on a full representativeness of all possible addressees of ISO is neither given nor potentially even possible. Perfect representation could only be achieved when virtually all addressees are included, as the underlying allocation mechanisms could otherwise always be criticized. Yet, perfect representation is an unrealistic goal since it would inhibit any decision-making and consulting process (Take, 2008), and thereby would directly impede throughput legitimacy. Nevertheless, an asymmetric distribution of power within such a multi-stakeholder discourse could destabilize the entire process. Strong individual participants could use their resources to oppress opposing positions which could threaten the power balance. In an early survey by Schmiedeknecht (2008), 78 percent of the participating experts raised concerns that some groups might have a higher influence than others. Despite these objections, the vast majority still agreed that the process was inclusive (86 percent), fair (83 percent) and democratic (81 percent). As a result, overall, the participatory quality of the WG tends to be balanced (at least in terms of ISO s self-defined categories). Consequently, the development process was not characterized by significantly unbalanced participation or by a substantially asymmetric pre-allocation of power. However, the aspect of unbalanced mirror committees does cast a slight cloud on the democratic legitimacy of the process input. The endeavors to institute those committees can generally be regarded as suitable to cascade representation down to the different member bodies and to foster the communicative processes within these groups. Nevertheless, the realization of this idea was not flawless and thus provides opportunities to improve input legitimacy in transnational 24

25 governance (for example in downstream groups). The next section now turns to evaluate whether and how the otherwise balanced representation is reflected in the processes of consultation and decision-making. Throughput Legitimacy of ISO The modalities of communication and decision-making within the development process as well as the transparency of the process as an enabling factor of accountability can be regarded as the main elements of throughput legitimacy. Furthermore, in addition to open communication, informal avenues of decision-making such as behind the scene talks or the political power of certain players in the process can be relevant aspects in transnational decision-making. Consequently, they play an important role in the development of ISO (see Bowers, 2006). Despite their potential influence, such informal consultations are generally not included when assessing democratic legitimacy as they do not comprise an open (but merely a hidden) inclusion of actors. The authors will nevertheless revert to this aspect in the later analysis and point out opportunities and limits of such forms of participation. Modalities of communication. As stated above, democratic legitimacy in deliberative processes is achieved through open communication based on equal rights of participation. The ISO aimed to ensure open communication between the WG-participants as well as with externals (ISO, 2004b). The following analysis will determine whether the process shows indications of barrierfree communication for the participants as a precondition for effective communication. The first area of analysis is the physical WG meetings which can be regarded as the main international platform of communication among the WG participants. The eight plenary meetings provided opportunities for direct communication and exchange among the participants (ISO, 2007c). The average participation quota of WG experts was 58 percent (ISO, 2009e). With 25

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