Sundhya Pahuja

Sundhya Pahuja (home page)
Director, Law and Development Research Program, University of Melbourne
Research Professor in Law, SOAS, University of London

Jurisdictional Rivalries between Company and State

This contribution to the research theme Crossing Borders, centres on two questions posed explicitly by the subtheme, Boundaries and Legal Authority in a Global Context. The first is how to understand in normative and conceptual terms, the changing capacity of the state to regulate (in the face of) cross-border activity, and the second is the question of what renders authoritative, the acts of setting legal boundaries in a global context?

I will approach the two questions raised by the theme, in the practical context of how we should understand the relationship between the company and the state historically and today, orienting myself theoretically by what I have described elsewhere as ‘jurisdictional thinking’, an historically inflected jurisprudence. [1]

In this, I will work explicitly at the intersection between the subtheme, and my new research on the history of the company in international law, a large project which traces the changing place of the company in international law from the Verenigde Oostindische Companie and East India Company to the UN Global Compact.

Whilst at STIAS, I will work on a new article focusing on the relationship between public debt and forms of authority on the local, national and international level. I will consider the relationship between public debt and the capacity of the state to regulate, as well as explore how (internationalized) public debt relates to the ways in which certain types of practices are authored and authorized on the global plane. In this, the question of the ‘legal’ boundary (understood as connected to state authority) will be set theoretically against other practices of authorisation, and the actualisation of the authority of Banks and international institutions such as the IMF.

This will be a standalone article connected to the themes of the STIAS group, and will benefit greatly from engagement and conversation refracted through the lenses of the thematic.

It connects to my current research as one of a series of key chronological/conceptual moments produced in order to enable the critical re-description of the relationship between Company and State in terms of rival forms of authority and practices of authorization. This re-description will run counter to present day understandings of the relationship between company and state in terms of regulatory escape.

In that story, the modern corporation is understood as a child of the state, a child which has grown too powerful to control. However, in my account, we need to go back further than the advent of the modern corporation, in order to see that the Company emerged in the early modern period not as a child of the state as is so often assumed, but rather as a rival form of both associational life and (public) authority. Once identified, we can then pay attention to that rivalry at different moments and in different forms of relation between company and state.

Understanding the historical relationship between company and state as one of rivalry between corporate forms of association and authority both to speak the law as well as to decide what ‘law’ is, is crucial for understanding the current relationship between modern corporation and state in a politically meaningful way. Or, as the thematic puts it, to consider ‘what […] appropriate and effective institutional mechanisms by which such authority can be contested’ might be.

[1] Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Approach to International Law’ (2013) London Review of International Law; and ‘Letters to a Nation: Nehru and the other international law’, in Eslava, Fakhri, Nesiah, (eds). Bandung, Global History and International Law: Critical Pasts and Pending Futures (forthcoming, Cambridge University Press).

 

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