An autonomous, non-state, non-political, and hence genuinely societal constitutionalization occurs in the codes of transnational corporations, since they juridify reflexive social processes that concern the relationship of the company with its environments by linking them to on their part reflexive legal processes, i.e. standardizations of standardizations. Under this condition, it is reasonable to talk of elements of a genuine constitution within the corporate codes of transnational corporations. The codes show indeed typical elements of a constitution: regulations concerning the establishment and practice of organizational decision-making (procedural rules of the corporation) and the definition of the system boundaries (fundamental rights of individuals and institutions vis-à-vis the corporation).
The norms at the top level of corporate codes are especially geared towards these conditions. They regulate the fundamental decision-making processes of transnational corporations, which concern the relationship with their human and natural environments, especially the relationship with the employees whose fundamental rights are respected by the organization. The “guidelines” at the top level have constitutional character, since they are not only mere behavioural norms, like the rules at the lowest level. Rather they are explicitly higher-ranking norms, phrased as general principles and serving both as starting points for intra-corporate norm-generation and as yardsticks for the internal and external review of norms. This requires certain institutional arrangements, especially procedural roles, which are responsible for setting, modifying, interpreting and implementing the primary rules. It is therefore especially the middle level of control and implementation bodies that mediates between abstract principles and concrete corporate decisions. Thus, private codes do not only generate autonomous law as private ordering; at the same, they constitute their own constitutional foundations without being dependent on public codes — they generate literally constitutions without the state.
2. Binary Meta-coding of the Corporate Constitution
The endpoint of the constitutionalization of a corporation is reached, when a specific binary meta-coding develops. The meta-coding oscillates between the values “code-compatible”/ “code-adverse”, both with regard to the corporate constitution. A meta-coding exists in this case, because such a constitutional code subjects the already binary coding of intra-company legal norms to an additional examination, namely whether they conform to the requirements of corporate constitutional law. Here, the hierarchy between simple and constitutional law emerges, which is typical for all constitutions. The legal code (legal / illegal) is subordinated to the constitutional code (constitutional / unconstitutional). However, there is something peculiar to the constitutional meta-coding. It is not only hierarchically superior to the legal code but at the same time also to the economic code. It therefore subjects to reflection all economically binary coded operations of the corporation, whether they comply with the principles of the public responsibility of the corporation or not.
The constitutional meta-coding is therefore a hybrid. It serves as a fictional unity for two different constitutional reviews within the corporation. It is, on the one hand, placed hierarchically above the legal and, on the other hand, above the economic binary code. Therefore, it assumes a different meaning depending on whether it reviews the economic or the legal code. In economic contexts, it serves for reflecting the social responsibility of the company and seeks to identify strategies for environmentally friendly economic activities. In the context of corporate law, it introduces the distinction between simple and constitutional law and reviews simple legal acts for their compliance with the values and principles established in the corporate constitution. The meta-coding triggers the re-entry of fundamental principles of economic organization into the law as constitutional principle and vice versa the re-entry of law in the corporate organization.
Thesis # 4: Constitutional Institutions: Private and Public Codes in an Ultracycle
Even if in this way constitutional functions and structures can be identified, it remains still difficult to capture the institutional structure of corporate codes in more theoretical detail. Some authors describe them as the “new sovereignty” of transnational corporate networks and stress thereby their unrestrained self-regulation.38 However, this does not do justice to their numerous normative dependencies on the environment; because the currently relevant corporate codes emerge from the conflicts between three groups of actors —, civil society groups, transnational corporations plus their delivery and distribution organizations and supranational institutions — whose mutual relations remain however unclear.
1. The Inversion of Nation State Hierarchies
Other authors try to model these relations as “governance triangles”.39 This is, however, similarly inadequate for grasping the social embedding of the codes. It suggests mistakenly that a transnational equivalent emerges to the state-organized neo-corporatist triangle of the European welfare states. In comparison to the nation states, one is here however confronted with a totally different constellation in the relation between these three social forces. Also the model of “multi-level-governance” is hardly appropriate for capturing the peculiar interplay of the two transnational types of code.40 In the nation state, corporate constitutions could certainly be conceived as a multi-level arrangement of constitutional norms, legal and judicial rules, on the one hand, and intra-organizational private ordering on the other. But its transfer to global corporate constitutions is mistaken. The different conditions of the transnational as well as the results of the first wave of societal constitutionalization, especially the high autonomy of transnational corporations, have fundamentally changed the relations between public and private collective actors compared to the corporate constitutions of the nation state. In the drastic words of an observer:
“Contract replaces law; networks of relationships replace a political community; interest replaces territory; the regulated becomes the regulator.”41
In the corporate constitutions of European nation states, as is well known, the linkage between public and private norms took place in hierarchical formations. The corporate constitution was based on a clear primacy of the state in the form of constitutional, statutory and judicial norms. The private ordering of corporations remained clearly subordinate to state law; it remained limited to those spaces of autonomy state law had left. This hierarchy of norms can be captured in the conceptual pair hard law / soft law.42 The state enacts hard law in company law, in the law of co-determination and in regulation law in the form of binding and sanction-reinforced norms. In contrast, intra-corporate norms are only a kind of soft law. As a manifestation of private autonomy they are not recognized as genuine legal norms, because their obligatory nature and enforcement depend on state recognition, and because they are subject to the review of state courts, whose results often repeal and change them.
In comparison to this traditional hierarchy, one can detect significant changes in the transnational codes which do not match the standard categories. In the interplay of the two corporate codes, a downright inversion of the hierarchy between state law and private ordering can be observed. A dramatic reversal takes place especially in the hard-law / softlaw quality of the public and private corporate codes: Now, it is the state norms that feature the quality of “soft law”, while the mere private ordering of transnational corporate networks emerges as new forms of “hard law”.
The norms under international public law, which, for instance, the UN enacted in the Codes of Conduct for Transnational Corporations, are not comparable with the binding norms passed for the corporate constitution by parliaments and constitutional courts of the nation states. Although it was initially planned in the 2003 “Draft Norms on the Responsibilities of Transnational Corporations” that a supranational regulatory body should directly regulate the conduct of transnational corporations with the help of sanction-reinforced norms binding under international law,43 the massive resistance of influential nation states and of the corporate lobby marked a turning point. The finally passed version contained merely “soft law”: non-binding