Reflexive Law: How Sustainable Development Has Conned Us All

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Patrick Wood, Editor, The August ReviewThe New York Times blast­ed out the head­line yes­terday, Oba­ma Pur­suing Cli­mate Accord in Lieu of Treaty. In short, Oba­ma will use one or more Exec­u­tive Orders to entan­gle the U.S. in a glob­al treaty on cli­mate change, with­out con­sulting the U.S. Sen­ate. How­ever, the Con­sti­tu­tion requires the Sen­ate to vote on all treaties and the bar is high: It takes a two-third vote to approve.

The Con­sti­tu­tion is out. The Rule of law has col­lapsed. Reflex­ive law has sur­passed it all. The bal­ance of this arti­cle will show you how and why.

If you are say­ing “Huh?”, you had bet­ter read every word of this report and fig­ure it out, because this might be the most impor­tant shard of evi­dence ever revealed about the wrench­ing trans­for­ma­tion of Amer­ican soci­ety.

Obama’s prin­cipal advis­er and “nego­tiator” on this so-called cli­mate accord is John Podes­ta, and this whole “treaty-by-exec­u­tive-order deba­cle can be laid square­ly at his feet. Until just recent­ly, Podes­ta was a mem­ber of the Tri­lat­eral Com­mis­sion. He was Bill Clinton’s chief-of-staff in the 1990s and the orig­inal insti­gator of Exec­u­tive Branch pol­i­cy of using Exec­u­tive Orders to bypass Con­gress on cer­tain issues. Clin­ton, also a Tri­lat­eral mem­ber, cre­ated many such EO’s to side-step Con­gress, and Con­gress unfor­tu­nately let him get away with it. Well, Podes­ta is back: I have stat­ed pub­licly on sev­eral radio pro­grams since his recent appoint­ment to Senior Pol­i­cy Advis­er To The Pres­i­dent that Podes­da is the most dan­gerous man in Wash­ing­ton.

Enough about Podes­da. Just remem­ber that he is the prime mover in what I am about to reveal.

The NYT arti­cle states,

To side­step that require­ment [of a 2/3 Sen­ate vote], Pres­i­dent Obama’s cli­mate nego­tia­tors are devis­ing what they call a “polit­i­cally bind­ing” deal that would “name and shame” coun­tries into cut­ting their emis­sions. The deal is like­ly to face strong objec­tions from Repub­li­cans on Capi­tol Hill and from poor coun­tries around the world, but nego­tia­tors say it may be the only real­istic path.

Sev­eral weeks ago, while doing some research for my upcom­ing book, Tech­noc­racy Ris­ing: The Tro­jan Horse of Glob­al Trans­for­ma­tion, a book had caught my eye and so I impul­sively bought it. The title was Green­ing NAFTA by Markell and Knox and pub­lished in 2003 by Stan­ford Uni­ver­sity Press. Accord­ing to the book, there was a sup­ple­mental agree­ment to NAFTA (1992) called the North Amer­ican Agree­ment on Envi­ron­mental Coop­er­a­tion (NAAEC), which estab­lished the North Amer­ican Com­mis­sion for Envi­ron­mental Coop­er­a­tion (CEC). The CEC was “the first inter­na­tional orga­ni­za­tion cre­ated to address the envi­ron­mental aspects of eco­nomic inte­gra­tion.” (1)

I intend­ed to put the book in my library for some future date, but since I more recent­ly had a five hour plane flight and need­ed some­thing to do, I hasti­ly threw it into my brief­case on the way out the door. On the first leg of the flight, I skimmed the book, under­lining a few things, but oth­er­wise it gen­er­ally put me to sleep. On the return flight 10 days lat­er, I picked it up again and flipped the pages think­ing it would be more of the same, only to fall on a chap­ter toward the back titled, “Coor­di­nating Land and Water Use in the San Pedro Riv­er Basin.” The San Pedro Riv­er is in south­ern Ari­zona, and it just so hap­pened that I had owned a ranch on that same riv­er when I first got out of col­lege in 1968, and so I knew the area like the back of my hand. Now I was real­ly inter­est­ed!

San Pedro river

San Pedro riv­er

The San Pedro Riv­er Basin was the first instance of CEC involve­ment because it was a small and rel­a­tively unim­por­tant area, and because the head­wa­ters of the San Pedro Riv­er orig­i­nated in Mex­i­co, just south of the U.S. bor­der. Green­ing NAFTA explains,

Under Arti­cles 13 and 14, the Sec­re­tariat can accept and review cit­izen sub­mis­sions alleg­ing that one of the three coun­tries is not enforc­ing its exist­ing envi­ron­mental laws. (2)

In fact, the San Pedro sub­mis­sion (i.e., com­plaint) came not from a cit­izen at all, but from the rad­ical left-wing envi­ron­mental group based out of Tuc­son, the South­west Cen­ter for Bio­log­ical Diver­sity (SCBD). The mere accu­sa­tion that the area was in vio­la­tion of their pre­con­ceived ideas of nor­malcy was enough to set off a chain of events that changed the San Pedro Riv­er Basin for­ever. Here is where the plot thick­ens. The authors explain,

Arti­cle 13 can be char­ac­ter­ized as an exam­ple of post­modern, “soft” or “reflex­ive” inter­na­tional law because it seeks to influ­ence pub­lic and pri­vate behav­ior with­out the threat of the enforce­ment of tra­di­tional, sanc­tion-based “hard” law. (3)

I had only heard (obvi­ously not under­standing) the term “soft law” before, but what is “reflex­ive law?” The author treats them as syn­onyms. After a anoth­er round of dig­ging, I found the foun­tain­head of reflex­ive law in the fol­lowing arti­cle, Towards a The­o­ry of Law and Soci­etal Devel­op­ment, writ­ten by a pro­fessor of inter­na­tional law in Swe­den:

Anoth­er soci­ol­o­gist of law who have dealt with legal devel­op­ment in stages is Gün­ther Teub­n­er. He has in an arti­cle in Law and Soci­ety Review 1983 put for­ward a the­o­ry that the law moves from for­mal to sub­stan­tive law and onwards to some­thing he calls reflex­ive law. Teub­n­er agrees with Nonet-Selznick that we have passed a stage of for­mal law, which is con­sis­tent with the con­cept of autonomous law, and after that have entered a sta­dium of mate­rial law. Teub­n­er does think the tran­si­tion from for­mal to mate­rial law should be divid­ed into two types. A “gen­uine” mate­rial law which is used to real­ize spe­cific, con­crete val­ues, what Teub­n­er calls for sub­stan­tive law and anoth­er type of mate­rial law which Teub­n­er has labeled reflex­ive law. This lat­ter legal form is char­ac­ter­ized by con­sti­tu­tive and pro­ce­dural rules that put lim­its on legal devel­op­ments with­out spec­i­fying con­crete mate­rial val­ues to be real­ized. Teub­n­er sum­ma­rizes the char­ac­ter­is­tics of reflex­ive law by putting it in relief to the for­mal and sub­stan­tive law as fol­lows:

Reflex­ive law affects the qual­i­ty of out­comes with­out deter­mining that the agree­ments will be reached. Unlike for­mal law, it does not take pri­or dis­tri­b­u­tions as giv­en. Unlike Sub­stan­tive law it does not hold that cer­tain con­trac­tual out­comes are desir­able. (4) [Empha­sis added]

So we see that reflex­ive law is just over 30 years old, and yet it has since become the prin­cipal means by which to col­lapse the Rule of Law, based on actu­al laws, in the Unit­ed States and in the West­ern world. Fur­ther­more, reflex­ive law starts with­out first deter­mining exact­ly what agree­ment will be reached, but push­es for­ward any­way to see how far the par­tic­i­pants can be pushed.

Hard law, which we are all famil­iar with, spec­i­fies clear out­comes when it is vio­lated. If you speed, you get a tick­et. If you com­mit armed rob­bery, you go to jail for a spec­i­fied peri­od. This is the tra­di­tional Rule of Law upon which our Repub­lic and Con­sti­tu­tion is based. Laws are cre­ated by a Leg­isla­tive Branch, exe­cuted by the Exec­u­tive Branch and adju­di­cated by the Judi­cial Branch.

Green­ing NAFTA now explains exact­ly what reflex­ive law entails:

Reflex­ive law tries to align sys­tem­at­i­cally legal rules with norms that the rel­e­vant actors will inter­nalize. It builds on the real­iza­tion that the rea­sons why peo­ple actu­ally obey law ulti­mately lie out­side for­mal adju­di­ca­tion and the pow­er of the state to enforce rules. (5)

Again, reflex­ive law starts out with desired out­comes, cre­ated by unelect­ed and unac­count­able actors, for which there are no laws. Yes, they could appeal to Con­gress to cre­ate leg­is­la­tion, as would be required by the Con­sti­tu­tion. At the end of the reflex­ive process, described below, the actu­al out­comes depend on how well the stake­holders “inter­nalize” what is pro­posed. In oth­er words, there is no actu­al legal process at all, but rather a jaw­boning process that cons actors into com­pli­ance.

Infor­ma­tion dis­clo­sure” is a prin­cipal pol­i­cy instru­ment of reflex­ive law. That is, the analy­sis pro­duced is pre­sented with its “rec­om­mended out­comes.” Pub­lic meet­ings are then held to build con­sensus between indi­vidual cit­i­zens and oth­er “actors”. In the case of the San Pedro Riv­er Basin study, the CEC enlist­ed the Uni­ver­sity of Arizona’s Udall Cen­ter to hold these pub­lic meet­ings. In sum, there was zero con­sensus among actu­al cit­i­zens of the area, as the book sim­ply notes, “Pub­lic com­ment was emo­tion­ally divid­ed on the reduc­tion of irri­gated agri­cul­ture.” (6) Real­ly? In fact, the farm­ers and ranch­ers in the area were beyond livid, but the real pur­pose of the pub­lic meet­ings had noth­ing to do with get­ting their vol­un­tary con­sensus. Rather, the meet­ings were designed to pub­licly abuse them until they sub­mit­ted.

The Green­ing NAFTA authors are very blunt about this:

This expe­ri­ence reveals two pow­erful incen­tives at work: shame and the desire to be vir­tuous while sav­ing mon­ey or increas­ing prof­it mar­gins. In a post-Holo­caust world, human rights NGOs have effec­tively used shame to induce com­pli­ance with uni­versal human rights norms. Also, vol­un­tary pol­lu­tion reduc­tion has been achieved when it is inter­nally prof­itable for an indus­try to reduce its dis­charges or an indus­try antic­i­pates increased reg­u­la­tory or pub­lic pres­sure to reduce them from the dis­clo­sure, such as through pub­lic sham­ing. Sham­ing works well with pol­lu­tion, espe­cially tox­ic pol­lu­tion, because it draws on deep, per­haps irra­tional, fears of expo­sure to the risk of seri­ous ill­ness and an innate abhor­rence of bod­i­ly injury. (7)

What of the farm­ers and ranch­ers who refused to be shamed into con­sensus dur­ing the Udall Cen­ter pub­lic hear­ings? After all, they had zero input into the CEC’s study and sub­se­quent “rec­om­men­da­tions”, nor were they con­sulted pri­or to the South­west Cen­ter for Bio­log­ical Diversity’s orig­inal com­plaint. Well, they were sim­ply offered oth­er incen­tives that they were help­less to refuse or refute:

Two con­crete incen­tives that have suc­cess­fully induced landown­er coop­er­a­tion under the U.S. Endan­gered Species Act are fear of a worse reg­u­la­tory out­come and immu­nity from lia­bility for changed con­di­tions.(8) [Empha­sis added]

In the end, the farm­ers and ranch­ers suc­cumbed to the reflex­ive law process when the reg­u­la­tory bul­lies showed up with threats of what would hap­pen to them if they did not buck­le under to the CEC’s demands. These actors includ­ed the Bureau of Land Man­age­ment, man­ager of the San Pedro Ripar­i­an Nation­al Con­ser­va­tion Area (SPRNCA) and the U.S. Depart­ment of the Army. Accom­pa­nying them were sev­eral NGO’s, includ­ing the Nature Con­ser­vancy and the South­west Cen­ter for Bio­log­ical Diver­sity. The fed­eral threat was “We will bank­rupt you with reg­u­la­tions.” The NGO threat was “We will bank­rupt you with law­suits.”

This is “reflex­ive law” and it is 100 per­cent anti­thet­ical to the Amer­ican Repub­lic, the Rule of Law, the U.S. Con­sti­tu­tion and the entire­ty of West­ern civ­i­liza­tion. Because com­pli­ance has always been posit­ed as vol­un­tary, nobody has been alarmed enough to look any fur­ther at it. How­ever, I will point out that almost every glob­al impo­si­tion has been based on the vol­un­tary aspect of reflex­ive law. Agen­da 21 depend­ed upon vol­un­tary com­pli­ance, which is often referred to as “soft law” among its crit­ics, who have not per­ceived the deep­er mean­ing of reflex­ive law. Com­mon Core edu­ca­tion stan­dards were intro­duced as a vol­un­tary pro­gram. Sus­tain­able Devel­op­ment in gen­eral is always pro­posed to be a vol­un­tary pro­gram. All of these are based on reflex­ive law. But, once it gets its ten­ta­cles into your per­sonal prop­erty and local com­mu­nity, you will be invol­un­tarily squeezed until you “vol­un­tarily” com­ply. There is no legal process avail­able to defend your­self, your prop­erty, or your rights.

Now let’s exam­ine the NYT arti­cle men­tioned at the start of this arti­cle.

To side­step that require­ment [two-third vote of the Sen­ate], Pres­i­dent Obama’s cli­mate nego­tia­tors are devis­ing what they call a “polit­i­cally bind­ing” deal that would “name and shame” coun­tries into cut­ting their emis­sions. The deal is like­ly to face strong objec­tions from Repub­li­cans on Capi­tol Hill and from poor coun­tries around the world, but nego­tia­tors say it may be the only real­istic path. (9) [Empha­sis added]

Did your alarm bells ring? Oba­ma is deliv­ering us into an inter­na­tional reflex­ive law treaty that has no actu­al legal basis in fact, and that is why they think they are jus­ti­fied in ignor­ing the Sen­ate. After all, the Sen­ate deals with “hard law” while Podes­ta and gang deals with “reflex­ive law.” Fur­ther­more, they will use the prin­cipal “name and shame” pol­i­cy tool of reflex­ive law to smoke out the resis­tance for pub­lic sham­ing. Sub­se­quently, from what you now know about how reflex­ive law is enforced in the end, those hold­outs will be offered a “deal that they can­not refuse”, name­ly, much worse reg­u­la­tory out­comes, inter­na­tional law­suits and entan­gle­ment, trade sanc­tions, etc.

The NYT elab­o­rates fur­ther:

Amer­ican nego­tia­tors are instead hom­ing in on a hybrid agree­ment — a pro­posal to blend legal­ly bind­ing con­di­tions from an exist­ing 1992 treaty with new vol­un­tary pledges. The mix would cre­ate a deal that would update the treaty, and thus, nego­tia­tors say, not require a new vote of rat­i­fi­ca­tion.

Coun­tries would be legal­ly required to enact domes­tic cli­mate change poli­cies — but would vol­un­tarily pledge to spe­cific lev­els of emis­sions cuts and to chan­nel mon­ey to poor coun­tries to help them adapt to cli­mate change. Coun­tries might then be legal­ly oblig­ated to report their progress toward meet­ing those pledges at meet­ings held to iden­tify those nations that did not meet their cuts. (10) [Empha­sis added]

There is not a sin­gle shred of doubt that any­thing oth­er than reflex­ive law is pic­tured here. It spits in the face of tra­di­tional Rule of Law that our coun­try was found­ed upon and oper­ated under until 1983 when this trea­so­nous legal sys­tem was con­ceived — by a Ger­man, no less. For all intents and pur­poses, reflex­ive law has caused the utter col­lapse of Rule of Law as we know it.

Don’t even begin to think this is any­thing less than bla­tant, for the arti­cle con­cludes with the frank brag­gado­cio :

There’s some legal and polit­ical mag­ic to this,” said Jake Schmidt, an expert in glob­al cli­mate nego­ti­a­tions with the Nat­ural Resources Defense Coun­cil, an advo­cacy group. “They’re try­ing to move this as far as pos­sible with­out hav­ing to reach the 67-vote thresh­old” in the Sen­ate. (11) [Empha­sis added]

Mag­ic, indeed: Mer­ri­am-Web­ster defines mag­ic as “the art of pro­ducing illu­sions by sleight of hand.”

To copy­cat Paul Harvey’s famous radio pro­gram sign-off, “Now you know… the rest of the sto­ry.”

Foot­notes:

Markell and Knox, Green­ing NAFTA (Stan­ford Uni­ver­sity Press, 2003) p. 2
Ibid. p. 217
Ibid. p. 218
Håkan Hydén, Samuel Pufendorf Pro­fessor in Soci­ology of Law, Lund Uni­ver­sity, Swe­den, Novem­ber 2011
Ibid. p. 231
Ibid. p. 228
Ibid. p. 231
Ibid. p. 232
Oba­ma Pur­suing Cli­mate Accord in Lieu of Treaty, New York Times, August 26, 2014
Ibid.
Ibid.