Power, Procedure, Participation and Legitimacy in Global Sustainability Norms
A Theory of Collaborative Regulation
Karin Buhmann
First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge
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Names: Buhmann, Karin.
Title: Power, procedure, participation, and legitimacy in global sustainability norms : a theory of collaborative regulation / Karin Buhmann.
Description: Abingdon, Oxon [UK] ; New York : Routledge, 2017. | Series: Globalization : law and policy | Includes bibliographical references and index.
Identifiers: LCCN 2017008255| ISBN 9781138696082 (hardback) | ISBN 9781315525440 (web pdf) | ISBN 9781315525433 (epub) | ISBN 9781315525426 (mobipocket / kindle)
Subjects: LCSH: Corporate governance—Law and legislation. | Social responsibility of business—Law and legislation. | Corporate governance—International cooperation. | Non-state actors (International relations) | Sustainability—Government policy. | Human rights.
Classification: LCC K1327 .B86 2017 | DDC 346/.06—dc23
LC record available at https://lccn.loc.gov/2017008255
ISBN: 978-1-138-69608-2 (hbk)
ISBN: 978-1-315-52545-7 (ebk)
Typeset in Times New Roman by Swales & Willis Ltd, Exeter, Devon, UK
For Nicholas, in appreciation of the concern that he and his contemporaries born in the 1990s harbour over the state of the world that their parents’ generation will be leaving them with
List of tables xiii
List of abbreviations xiv Acknowledgements xvi
1 Sustainability, transnational economic activity and regulatory challenges 1
1 Introduction 3
1.1 Setting the stage 3
1.1.1 Sustainability challenges 3
1.1.2 Regulatory and legitimacy challenges 6
1.1.3 How this book contributes 9
1.2 Objective, method, key terms and delimitations 10
1.2.1 Objectives 10
1.2.2 Empirical cases 12
1.2.3 Theoretical framework 13
1.2.4 Key terms 14
1.2.5 Delimitations 15
1.2.6 Structure 16
2 Regulatory innovation: Non-state actors and sustainability norms 18
2.1 Regulation of companies in conventional international law 18
2.2 Regulatory innovation in theory: involving non-state actors in super-national law-making 22
2.3 Regulatory innovation in practice: public, private and hybrid law-making for sustainability and business conduct 27
2.4 Corporate social responsibility, sustainability and governance needs 31
2.5 Actors, interests and significance for the construction of norms on sustainable economic conduct 34
3 A multiple case study representing a diversity of processes and outputs for business conduct and sustainability 37
3.1 Context: juridification and international policy developments 37
3.1.1 Juridification of CSR 37
3.1.2 International policy developments with normative implications 40
3.2 UN initiatives on normative guidance on business and human rights: from contestation and disagreement to deliberation and negotiated agreement 42
3.2.1 The Draft UN Norms: process, output and aftermath 45
3.2.2 The Human Rights Commission’s rejection of the Draft Norms and OHCHR recommendations for an inclusive onward process 48
3.2.3 The SRSG process and the UN Framework and UNGPs 50
3.2.4 After the UN Guiding Principles 55
3.2.4.1 Academic views of the UN Framework and UNGPs and their legitimacy 55
3.2.4.2 From soft law to treaty on business and human rights? Policy and stakeholder inclusion 59
3.3 Multi-stakeholder hybrid initiatives for norms for business conduct: the UN Global Compact, EU processes and ISO 26000 61
3.3.1 The United Nations Global Compact 62
3.3.2 The EU Multi-Stakeholder Forum (MSF) on CSR 64
3.3.3 The European CSR Alliance 65
3.3.4 ISO 26000 Social Responsibility Guidance Standard 66
PART 2
Legitimacy and public–private regulation of transnational sustainability concerns 71
4 Theoretical perspectives on participatory law-making, ‘compliance pull’, communication and legitimacy 73
4.1 Instrumental approaches to law 73
4.2 Legitimacy and ‘compliance pull’ in international law 77
4.3 Input, throughput and output legitimacy: the deliberative turn in rule-making 81
4.3.1 Legitimate rule-making through deliberation, bargaining and negotiation 83
4.3.2 Super-national law-making: civil society and equalised participation 87
4.4 Modernising international law: towards participation in super-national law-making 91
5 Power, privilege and representation of interests 96
5.1 Why collaborative regulation? Revisiting the roles of participation and power for output 96
5.2 Communicating for change: inducing self-regulation by addressing the concerns and interests of stakeholders 99
5.2.1 Regulating self-regulation through reflection at several levels 99
5.2.2 Communicating to induce self-regulation 101
5.2.3 The normative element in reflexive law: balancing power but lacking instructions 106
5.3 Process, reflection and outputs 108
5.4 Participation, power and legitimacy 118
5.5 Outlook for collaborative regulation 120
6 Proceduralisation for legitimacy 121
6.1 Complementarity of reflexive law and deliberative law-making for legitimacy 121
6.2 Procedural design and process management 128
6.3 Procedure, trust and legitimacy 133
6.4 Summing up on findings before proceeding to the proposed solution 135
PART 3 Collaborative regulation
7 Foundations for collaborative regulation
7.1 Scope of application 139
7.2 Proceduralisation 141
7.2.1 Procedure in Habermas’s and Teubner’s theories 141
7.2.2 Equalised participation 144
7.3 Procedural design and power 146
7.3.1 Procedurally equalised participation in collaborative regulation: looking to procedural administrative and human rights law 146
7.3.2 IT-based global communication: opportunities and increased demand for equalised access to public and hybrid decision-making 150
7.4 Towards constitutionalisation? A prospective treaty on participation, procedure and rights of non-state actors in super-national law-making 153
7.5 Informal proceduralisation 157
8 Steps for collaborative regulation 159
8.1 Issues to be considered in a formalised process of collaborative regulation 160
8.1.1 Inclusiveness and representation 160
8.1.2 Declaring interests and connections 161
8.1.3 Including stakeholders in preparing for interaction 162
8.2 Steps for proceduralisation in a specific case of collaborative regulation 162
9 Summing up and looking ahead 172
9.1 Recapitulation 172
9.2 A condensed version of the theoretical basis, analysis, argument and new theory 174
9.3 Looking ahead 178
3.1 Outputs assessed against objectives and procedural design
8.1 Step-by-step guide for collaborative regulation 164
Abbreviations
BHR Business and Human Rights
BIAC Business and Industry Advisory Committee
BOP bottom of the pyramid
CSR Corporate Social Responsibility
Draft UN Norms Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights
ECOSOC United Nations Economic and Social Council
EITI Extractive Industries Transparency Initiative
EU European Union
FSC Forest Stewardship Council
GAL Global Administrative Law
GRI Global Reporting Initiative
ICC International Chamber of Commerce
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ILO International Labour Organization
IOE International Organisation of Employers
ISO International Organization for Standardization
MDGs Millennium Development Goals
MNC multinational corporation
MNE multinational enterprise
MSF European Commission’s Multi-Stakeholder Forum
NCP National Contact Point
NGO non-governmental organisation
OECD Organisation for Economic Co-operation and Development
OEIWG Open-Ended Intergovernmental Working Group (on treaty on Business and Human Rights)
OHCHR Office of the High Commissioner for Human Rights
PEFC Programme for the Endorsement of Forest Certification
SDGs Sustainable Development Goals
SME small and medium-sized enterprise
SR Social Responsibility
SRSG Special Representative of the UN Secretary-General on Business and Human Rights
TNC transnational corporation
List of abbreviations xv
UDHR Universal Declaration of Human Rights
UN United Nations
UNGPs United Nations Guiding Principles on Business and Human Rights
US United States
USCIB United States Council for International Business
WBCSD World Business Council for Sustainable Development
WTO World Trade Organization
1 Introduction
Overview: This chapter introduces the issue of the book in regards to sustainability challenges and challenges of regulating these at a global level as well as regulatory challenges and legitimacy issues related to the inclusion of non-state actors, such as businesses, in super-national law-making. It describes how this book responds to those challenges and sets out the objective of developing a theory on collaborative regulation. Moving on, the chapter describes the method that has been applied in terms of empirical cases and the applied theoretical framework. Finally, it introduces key terms and sets out delimitations.
1.1 Setting the stage
1.1.1 Sustainability challenges
The early 21st century abounds in transnational sustainability problems whose solutions exceed the territorial jurisdictional limits of the nation states in which their effects are generated or occur. Transnational economic activity is a significant factor for many of these problems. Yet recent decades’ efforts to govern transitions towards sustainability in public, private or hybrid organisations display mixed records of results and outcomes. Recent history has shown that political support, which governments may give to international organisations like the United Nations (UN) to regulate such problems by hard law, is not easily forthcoming or uniform. The difficulties that marked the process of reaching a global climate change agreement in the years up to the 2015 Paris Climate Change Accord1 are a case in point.
Across the globe, organisations of many types encounter difficulty in adequately meeting environmental and social sustainability challenges. The diversity of processes and outcomes calls for insights into what drives and impedes processes of clarifying what constitutes acceptable conduct. There is a particular need for knowledge on what makes for effective processes for defining norms for such conduct, and for the norms to become accepted with a view to integrating them into organisational practice.
The natural and social sciences have documented acute global sustainability challenges related to climate change and resource depletion2 and business-induced human rights and
1 United Nations/Conference of the Parties, Framework Convention on Climate Change (2015) Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/L.9/Rev.1.
2 Andonova, L. B., Betsill, M. M. and Bulkeley, H. (2009) ‘Transnational climate governance’, Global Environmental Politics, Vol. 9, No. 2, pp. 52–73; Rockström, J. (2009) ‘Planetary boundaries: Exploring the safe operating space for humanity’, Ecology and Society, Vol. 14, No. 2, article 32; Intergovernmental Panel on Climate Change (2012) ‘Summary for policymakers’, in C. B. Field, V. Barros, T. F. Stocker, Qin D., D. J. Dokken, K. L. Ebi, M. D. Mastrandrea, K. J. Mach, G.-K. Plattner, S. K. Allen, M. Tignor and P. M. Midgley (eds), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation, Special Report, Cambridge: Cambridge University Press, pp. 3–22.
Sustainability and transnational activity labour abuse.3 Public and private actors’ overexploitation of natural and human resources enhances economic imbalance and destabilises the global ecology.4 The exercise of power, competition, need for and use of natural resources and labour pitch organisations against each other within and across private and public domains. The understanding of sustainable development and sustainability in a more general sense of societal objectives has undergone a significant evolution from the 1987 ‘Brundtland Report’5 through the 1992 Rio Declaration on Environment and Development6 and the 2000 Millennium Development Goals (MDGs)7 to the 2015 Sustainable Development Goals (SDGs).8 The evolution of global policy objectives on sustainability displays an expansion of issues related to sustainability from environmental to broad social concerns. From the original environmental and developmental focus, the understanding has expanded to a broader and integrated view that sustainability assumes a convergence between the three pillars of economic development, social equity and environmental protection.9 The adoption of the SDGs underscores that sustainability concerns are not tied to specific economies, regions or developmental stages, but are simply global in reach and significance.
The transnational nature of sustainability challenges limits the political and jurisdictional powers of states and international organisations, leading to governance gaps.10 Despite some progress, particularly in natural resource law,11 regulation of sustainability often relies on market-based sanctions12 and informal law.13 Pragmatic socio-legal approaches to processes
3 Frynas, J. G. (2008) ‘Corporate social responsibility and international development: Critical assessment’, Corporate Governance: An International Review, Vol. 16, No. 4, pp. 274–281; Ruggie, J. G. (2013) Just Business: Multinational Corporations and Human Rights, New York: W. W. Norton & Company.
4 Brundtland, G., Khalid, M., Agnelli, S., Al-Athel, S., Chidzero, B., Fadika, L., Hauff, V., Lang, I., Shijun, M., Botero, M. M. de and Singh, M. (1987) Report of the World Commission on Environment and Development: ‘Our Common Future’, UN Doc. A/42/427 Annex, 4 August; Zelli, F. and Asselt, H. van (2013) ‘Introduction: The institutional fragmentation of global environmental governance: Causes, consequences, and responses’, Global Environmental Politics, Vol. 13, No. 3, pp. 1–13.
5 Brundtland et al. (1987) Report of the World Commission on Environment and Development
6 United Nations General Assembly (1992) Rio Declaration on Environment and Development (United Nations Conference on Environment and Development: Annex 1: Declaration on Environment and Development), UN Doc. A/CONF.151/26 (Vol. I), 12 August.
7 United Nations General Assembly (2000) United Nations Millennium Declaration, UN Doc. A/Res/55/2, 18 September.
8 United Nations General Assembly (2015) Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc. A/Res/70/1, 21 October.
9 Drexhage, J. and Murphy, D. (2010) Sustainable Development: From Brundtland to Rio 2012: Background Paper Prepared for Consideration by High Level Panel on Sustainability at Its First Meeting, 19 September 2010, New York: United Nations.
10 Ruggie, J. G. (2004) ‘Reconstituting the global public domain – issues, actors and practices’, European Journal of International Relations, Vol. 10, No. 4, pp. 499–531; Abbott, K. W. and Snidal, D. (2012) ‘Taking responsive regulation transnational: Strategies for international organizations’, Regulation and Governance, Vol. 7, No. 1, pp. 95–113.
11 McIntyre, O. (2016) ‘The making of international natural resource law’, in C. Brölman and Y. Radi (eds), Research Handbook on the Theory of International Lawmaking, Cheltenham: Edward Elgar, pp. 442–465.
12 Cashore, B., Auld, G. and Newsom, D. (2004) Governing through Markets: Forest Certification and the Emergence of Non-State Authority, New Haven, CT: Yale University Press; Bush, S. R., Belton, B., Hall, D., Vandergeest, P., Murray, F. J., Ponte, S., Oosterveer, P., Islam, M. S., Mol, A. P. J., Hatanaka, M., Kruijssen, F., Ha, T. T. T., Little, D. C. and Kusumawati, R. (2013) ‘Certify sustainable aquaculture?’, Science, Vol. 341, No. 6150, pp. 1067–1068.
13 Buhmann, K. (2006) ‘Corporate social responsibility: What role for law? Some aspects of law and CSR’, Corporate Governance: The International Journal of Business in Society, Vol. 6, No. 2, pp. 188–202.
of turning societal needs into aspirational norms that may transform into changed practices recognise a multiplicity of governance forms,14 but still fail to fully explain the dynamics that trigger change and deliver solutions. Discursive evolution of norms of conduct has proven significant for their uptake,15 but the evolution of norms related to sustainability has also been shown to be vulnerable to capture by specific interests and power relations.16
Climate change has been high on the global sustainability agenda in recent years.17 Yet global sustainability concerns go beyond climate change, often related to economic practices with social and environmental impacts. Excessive natural resource exploitation, land-grabbing and sub-standard labour conditions in global supply chains are frequent occurrences that also have high sustainability relevance. Such practices pose risks to the environment and human lives currently as well as in a longer-term sustainability perspective of balancing current needs with those of the future. Investments and trade have caused depletion of large stretches of tropical forests, which not only harms the environment and adds to climate change, but also affects the socio-economic conditions of communities. The transnational character of these economic activities often involves or affects numerous private and public actors in several states or regions. This causes challenges for singular or even sector-wide private self-regulatory initiatives, and reduces the effectiveness of selfregulation by individual actors on their own.
The challenges that marked the road to the Paris Climate Change Accord for years are telling of the difficulties that the conventional international law-making process encounters in regard to developing and adopting norms of conduct related to sustainability problems. By contrast to the situation when the state-centric international legal system was created, actors to be regulated are increasingly not public but private. Moreover, despite overall convergence, political interests are highly dispersed at national, regional or even sectoral levels. Failures by the international society to address societal challenges and needs of global concern have drawn attention to the impact that private actors have on society and the responsibility that firms of all sizes have for such impacts. The combination of, on the one hand, the weaknesses encountered by the existing public institutional structures to deal with such problems and, on the other, increased societal awareness of the impact and perceived societal responsibilities of business has placed pressure on the UN, which is the world’s key international organisation concerned with social and economic growth and sustainability, set up under a state-centrist international law and policy regime. At the same time, the immensity and encompassing character of global sustainability challenges have also drawn attention to the limitations of singular initiatives like the private or sectoral Corporate Social Responsibility (CSR) guidelines, reporting schemes and codes of conduct.
14 Lobel, O. (2005) ‘The Renew Deal: The fall of regulation and the rise of governance in contemporary legal thought’, Minnesota Law Review, Vol. 89, pp. 7–27.
15 Risse, T. and Kleine, M. (2010) ‘Deliberation in negotiations’, Journal of European Public Policy, Vol. 17, No. 5, pp. 708–726; Buhmann, K. (2014) Normative Discourses and Public–Private Regulatory Strategies for Construction of CSR Normativity: Towards a Method for Above-National Public–Private Regulation of Business Social Responsibilities, Copenhagen: Multivers.
16 Buhmann, K. (2011) ‘Integrating human rights in emerging regulation of corporate social responsibility: The EU case’, International Journal of Law in Context, Vol. 7, No. 2, pp. 139–179; Fairbrass, J. (2011) ‘Exploring corporate social responsibility policy in the European Union: A discursive institutionalist analysis’, JCMS: Journal of Common Market Studies, Vol. 49, No. 5, pp. 949–970; Kinderman, D. (2013) ‘Corporate social responsibility in the EU, 1993–2013: Institutional ambiguity, economic crises, business legitimacy and bureaucratic politics’, JCMS: Journal of Common Market Studies, Vol. 51, No. 4, pp. 701–720.
17 Rockström (2009) ‘Planetary boundaries’; Andonova et al. (2009) ‘Transnational climate governance’.
Through the SDGs, the UN General Assembly also sent a message that sustainability and responsibility for sustainable development are global in reach and not limited to particular countries or regions. This is a call to the world on the need to solve impending dilemmas: first, that political and regulatory issues confronting global sustainability development challenges are on the rise; and, second, that there is a need to find novel ways to govern the sustainability impact of economic activities, whether those are linked to the private sector or the public sector or a combination.
Adding to the complexity is the fact that much norm creation related to sustainability is transnational and trans-systemic in process as well as intended applicability. The transsystemic character transgresses not only conventional boundaries between public and private, international and national law, but also boundaries between the legal, the political and the economic systems.
The past has shown that the evolution of new sustainability concerns is dynamic and often goes beyond our current imagination. When labour issues rose high on the agenda in the 1990s, few suspected that climate change mitigation would move forcefully on to the global sustainability agenda in terms of both public and private regulation. The governance and exploitation of water as a resource for transport, production and sale and a condition for human health are among emerging challenges, as is the exploitation of the land or sea areas around the Arctic or Antarctic. In view of the natural resources available, it may not be farfetched to speculate that even outer space may be among future challenges for sustainability. Against this backdrop and against the CSR area in general, the field of business and human rights stands out. As explained below, this field has undergone a major transition in less than two decades: contention and disagreement have been turned around into multi-stakeholder development and agreement on guidance for both public and private actors. The human rights field has broad relevance across public and private governance, because many human right issues are directly linked to public policy objectives of a social, economic or political character. This applies whether the issues at stake are at risk of harm caused by the private sector, or whether businesses may contribute to improved delivery of services or other public goods.
1.1.2 Regulatory and legitimacy challenges
Traditionally, non-state actors like businesses do not have a role in international law. This means that they have neither obligations nor a right to participate in law-making. The lack of obligations leads to a situation of impunity or at least a severe lack of normative guidance for firms in regard to their impacts on society. The non-inclusion in international efforts to regulate is a challenge too: it may contribute to alternative ways to influence law-making, but inclusion also causes legitimacy issues because firms are not democratically representative or elected for that role, and because of a risk of capture of the process.
In fact, non-state actors such as civil society organisations increasingly take some part in negotiations within the framework of the UN or other international organisations, which is conventionally state-centric in terms of both rule-making and duty-bearers. Based on the consultative status that many such organisations enjoy with the UN, non-governmental organisations (NGOs) have long participated in such activities. The involvement of nonstate actors in regulatory processes also causes legitimacy challenges to process as well as outputs. For example and as elaborated below, in the environmental or human rights field, civil society organisations typically represent the voice of those affected. Business associations, which may also hold consultative status, have in some cases been admitted to such processes. The explicit inclusion of business in such multi-stakeholder regulatory processes
under the UN on sustainability issues is a novelty that further underscores the legitimacy challenge, which in this case is dual. It is not only about involving for-profit non-state actors in international law-making, a role traditionally exercised by sovereign states. It is also about involving the very organisations whose actions the new regulation is intended to shape with a view to reducing their adverse impact or enhancing positive impact, in the evolution of new norms for their conduct. It is not surprising that this may cause apprehension lest businesses capture the process. However, as we shall see below, the exclusion of business may be damaging for the result, too. This calls for a compromise that involves stakeholders broadly while balancing power and avoiding undue effects of the interests of one or more types of stakeholders or their networks.
From the process-oriented perspective, international law is a system aimed at achieving common values and providing an operational system for securing these. It continuously needs to adapt to a changing political world and remain conscious of the context in which rules are to be applied.18 The growth of global or regional sustainability concerns that are transnational in cause or effect makes it pertinent to ask how the international regulatory system, including the UN, may adapt its law-making processes to respond to such challenges.
Besides the 2015 climate change breakthrough, recent years have also witnessed a major ground-breaking development in the field of business and human rights. The 2015 Paris Climate Change Accord19 has received wide acclaim and attention, well deserved in view of the urgency of the matter and the long and winding road to success, which has witnessed several disappointments on the way, in particular the 2009 COP 15 meeting in Copenhagen. The agreements on the 2008 UN Framework20 and the 2011 UN Guiding Principles on Business and Human Rights (UNGPs)21 have received less attention and acclaim outside human rights circles, but the processes to those results represent important innovation too and potential lessons for future collaborative regulation. The Paris Climate Change Accord was reached through a largely political process led by individual governments in collaboration with the UN under the set-up agreed to in the 1992 UN Framework Convention on Climate Change and the Kyoto Protocol.22 The process towards the UN Framework and the UNGPs was on a much smaller scale, but also with wide-ranging implications. It was a more typical UN process for development of specific norms of conduct in a contentious field in that it was directed by the key UN body (in this case the Commission on Human Rights, later the Human Rights Council) and charged on an individual mandate-holder. However, it differed from
18 McDougal, M. (1964) ‘The policy-oriented approach to law’, Virginia Quarterly Review, Vol. 40, pp. 626–632; McDougal, M. and Reisman, W. M. (1981) International Law in Contemporary Perspective, Mineola, NY: Foundation Press; Higgins, R. (1994) Problems and Process: International Law and How We Use It, Oxford: Clarendon Press.
19 United Nations/Conference of the Parties, Framework Convention on Climate Change (2015) Adoption of the Paris Agreement.
20 United Nations Human Rights Council (2008) Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, UN Doc. A/HRC/8/5 (2008), 7 April.
21 United Nations Human Rights Council (2011) Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect, Remedy’ Framework, Report of the Special Representative of the SecretaryGeneral on the issue of human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/17/31, 21 March.
22 Bodansky, D. and Rajamani, L. (2016) ‘Evolution and governance architecture of the climate change regime’, in D. Sprinz and U. Luterbacher (eds), International Relations and Global Climate Change: New Perspectives, Boston, MA: MIT Press, available at SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2168859 (accessed 22 December 2016).
typical UN law-making through its broad multi-stakeholder inclusion, and it extended the view of actors treated as political or actual holders of responsibilities in addition to states’ duties under international law.
Criticism has been levelled at the UN Framework and the UNGPs for limiting their focus to the ‘negative’ aspect of firms respecting human rights (not doing harm) rather than also setting guidance for how companies may contribute to fulfilling human rights (doing more good).23 Yet the two instruments probably did help pave the way for a process launched in 2014 by the UN Human Rights Council towards an international treaty on business and human rights (BHR). The instruments’ delimitation to respecting human rights has been explained as a pragmatic choice that helped ensure broad agreement on the UN Framework24 and does not prevent or discourage firms’ engagement in human rights fulfilment. Indeed, the latter is increasingly addressed in the general organisational literature on CSR as ‘political CSR’.25
Studies of regulatory strategy, new modes of governance and public–private regulation to address public policy concerns suggest that the effectiveness and legitimacy of non-coercive or co- or self-regulatory alternatives to formal state regulation depend on a number of factors. These include: the intensity of the regulatory intervention required for the purpose of a particular public policy objective; the intervention capacity of governmental actors; the economic benefits for companies and the extent to which companies or an industry may be motivated to engage in self-regulation as a form of pre-emptive regulation based on enlightened self-interest; reputational sensitivity in relation to the company’s or industry’s environment as well as competitors; and alignment between the salient public policy objectives and the culture that exists within a particular industry or series of companies.26 Most of these studies address the effectiveness of the resulting
23 See, for example, Cernic, J. L. (2010) ‘Two steps forward, one step back: The 2010 UN report by the UN Special Representative on Business and Human Rights’, German Law Journal, Vol. 11, pp. 1264–1280; Bilchitz, D. (2013) ‘A chasm between “is” and “ought”? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles’, in S. Deva and D. Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, Cambridge: Cambridge University Press, pp. 107–137; Wettstein, F. (2013) ‘Making noise about silent complicity: The moral inconsistency of the “Protect, Respect and Remedy” Framework’, in S. Deva and D. Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, Cambridge: Cambridge University Press, pp. 243–268.
24 Buhmann, K. (2012) ‘The development of the “UN Framework”: A pragmatic process towards a pragmatic output’, in R. Mares (ed.), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation, Leiden: Martinus Nijhoff, pp. 85–105; Knox, J. H. (2012) ‘The Ruggie Rules: Applying human rights law to corporations’, in R. Mares (ed.), The UN Guiding Principles on Business and Human Rights, Antwerp: Brill, pp. 51–83; Sanders, A. (2015) ‘The impact of the “Ruggie Framework” and the “United Nations Guiding Principles on Business and Human Rights” on transnational human rights litigation’, in J. Martin and K. E. Bravo (eds), The Business and Human Rights Landscape: Moving Forward, Looking Back, Cambridge: Cambridge University Press, pp. 288–315; see also Wettstein, F. (2015) ‘Normativity, ethics, and the UN Guiding Principles on Business and Human Rights: A critical assessment’, Journal of Human Rights, Vol. 14, No. 2, pp. 162–182.
25 See, for example, Scherer, A. G. and Palazzo, G. (2011) ‘The new political role of business in a globalized world – a review of a new perspective on CSR and its implications for the firm, governance, and democracy’, Journal of Management Studies, Vol. 48, No. 4, pp. 899–931; Scherer, A. G., Rasche, A., Palazzo, G. and Spicer, A. (2016) ‘Managing for political corporate social responsibility: New challenges and directions for PCSR 2.0’, Journal of Management Studies, Vol. 53, No. 3, pp. 273–298.
26 For overviews, see Saurwein, F. (2011) ‘Regulatory choice for alternative modes of regulation: How context matters’, Law and Policy, Vol. 33, No. 3, pp. 334–366; Cafaggi, F. and Renna, A. (2012) Public and Private Regulation: Mapping the Labyrinth, CEPS Working Document No. 370, October, Brussels: Centre for European Policy Studies, esp. at pp. 4–9.
norms of conduct contained in a rule or other governance instrument – and not the process to generate the rule. This book, by contrast, looks at the process for the creation of norms or amendment of prior norms. Its focus is on participation in a rule-making process and on procedures for balancing power interests among participants in order for the rule-making to be legitimate and effective in delivering relevant and appropriate norms. The book is driven by the socio-legal idea of a compliance pull as significant either for governance systems that lack strong enforcement institutions or where, as in the case of human rights and many other sustainability-related issues, prevention is much more desirable than a cure. That is so because a remedy is rarely able to fully repair the damage done: an arm lost in an occupational health and safety accident cannot be replaced; a childhood lost to factory labour cannot be relived; lethal chemicals polluting drinking water or agricultural land do not disappear overnight; and the impacts of environmental damage on the possibility of farmers or fishing people providing for themselves and their families may persist for years to come. Studies indicate that, even where a remedy is provided, its effectiveness is questionable,27 thus further underscoring that, however important a remedy is, prevention of harm occurring is of paramount significance. To build a compliance pull from within, the law-making process takes centre stage. Several legal philosophers,28 political scientists,29 socio-legal scholars,30 and international and transnational law experts31 agree that the regulatory process must be structured in such a way that the processing of input into output has a high degree of legitimacy. Yet there is a need for theory-based insights into what it takes to transform the ideals into practice.
1.1.3 How this book contributes
This book responds to a need for insights on developing norms and rules for transnational sustainability governance. It addresses the conditions for such processes to generate a normative output that is broadly accepted as being legitimate in terms of both process and outcome.
The analysis takes its point of departure in the evolution of norms of conduct for business with regard to sustainability-related issues within a set of public–private multistakeholder initiatives that were launched and finalised between 1998 and 2011. Within a general context that was sometimes referred to as CSR, all of these hybrid initiatives addressed social aspects of business impact on society. Some, in particular, addressed business impact on human rights, laying part of the ground for what is today increasingly referred to as
27 Daniel, C., Wilde-Ramsing, J., Genovese, K. and Sandjojo, V. (2015) Remedy Remains Rare: An Analysis of 15 Years of NCP Cases and Their Contributions to Improve Access to Remedy for Victims of Corporate Misconduct, Amsterdam: OECD Watch.
28 Especially Habermas, J. (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by W. Rehg, Cambridge: Polity Press/Blackwell.
29 Risse, T. (2000) ‘“Let’s argue”: Communicative action in world politics’, International Organization, Vol. 54, No. 1, pp. 1–39; Risse and Kleine (2010) ‘Deliberation in negotiations’.
30 For example, Teubner, G. (1983) ‘Substantive and reflective elements in modern law’, Law and Society Review, Vol. 17, No. 2, pp. 239–285; Berger-Walliser, G. and Shrivastava, P. (2015) ‘Beyond compliance: Sustainable development, business, and pro-active law’, Georgia International Law Journal, Vol. 46, No. 2, pp. 417–475.
31 For example, Picciotto, S. (2003) ‘Rights, responsibilities and regulation of international business’, Columbia Journal of Transnational Law, Vol. 42, No. 1, pp. 131–152; Cohen, J. and Sabel, C. (2005) ‘Global democracy?’, NYU Journal of International Law and Politics, Vol. 37, No. 4, pp. 763–797; Burca, G. de (2008) ‘Developing democracy beyond the state’, Columbia Journal of Transnational Law, Vol. 46, No. 2, pp. 221–278.
Business & Human Rights (BHR). The BHR acronym reflects that the debate on business responsibilities for human rights has matured to the stage of becoming an institutionalised normative discourse. BHR is related to the general CSR discourse, on which it feeds, but also branches off into an autonomous discourse, which is increasingly shaping the conception of CSR.32 A process launched by the UN in 2005 and its outcome – the 2008 UN ‘Protect, Respect and Remedy’ Framework and the 2011 UNGPs – broke ground by generating progress in a field that had been marked by failures to reach agreement. It also broke ground through a multi-stakeholder process that included business enterprises in a dual active role: as participants, and as bearers of potential new human rights duties. Business participation was a result of the emerging recognition that businesses do have responsibilities for their impacts on society, and of an awareness that the exclusion of business in a previous initiative to develop norms on business responsibilities for human rights (the Draft UN Norms, see below) had contributed to the failure of that initiative to achieve the legitimacy required for its successful adoption, even within a regulatory forum composed of government representatives. The outcome, the process and the participants raise issues of legitimacy of a character that are typically addressed in social science studies as output, throughput and input legitimacy. The approach here is pragmatic socio-legal. This allows for exploring past effort at regulating sustainability with varying degrees of non-state actor participation and results, with a view to providing insights for future collaborative regulation of sustainability-related issues.
1.2 Objective, method, key terms and delimitations
1.2.1
Objectives
In view of the issues set out above, the overall task here is to engage in a discussion on whether and how to involve non-state actors in rule-making processes occurring at the supernational level, that is, above nation states. Such processes may take place under the auspices of international organisations, but they may also occur under the auspices of hybrid organisations that are set up or function with a combination of public and private actors. Hybrid organisations may be completely private but still, like the International Organization for Standardization (ISO), develop rules through a process that involves both private and public actors, as was the case for the ISO 26000 Social Responsibility (SR) Guidance Standard. They may also be organised within a public international organisation but involve private actors – whether for-profit or non-profit – in a manner that makes them very direct partners in law-making processes, including processes to update normative standards and guidance. Developed through a multi-stakeholder process, the ten principles of the UN Global Compact offer an example of the latter. Thus, the task here is not to develop specific delimitations of what degree of international legal personality companies should enjoy.
In the social sciences, the term legitimacy has a number of nuances that turn around a common core on acceptance, representativeness and coherence with the norms and needs of society. As elaborated in Chapter 4, in legal science legitimacy entails an acceptance of norms that are representative of the views and interests of those to whom the norms apply, whether as rights-holders or duty-bearers. In political science, legitimacy often refers to power and the exercise of authority as results of a perception that this is representative of
32 See, further, Buhmann, K. (2016) ‘Juridifying corporate social responsibility through public law: Assessing coherence and inconsistencies against UN guidance on business and human rights’, International and Comparative Corporate Law Journal, Vol. 11, No. 3, pp. 194–228.
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flapping his plump arms and caroling “They’re coming—they’re coming,” which somehow started a stampede to the altar.
Adelbert was, in his girlish enthusiasm, almost as good as Sharon or Elmer at announcing, “Tonight, you are all of you to be evangelists. Every one of you now! Shake hands with the person to your right and ask ’em if they’re saved.”
He gloated over their embarrassment.
He really was a man of parts. Nevertheless, it was Elmer, not Adelbert, who invented the “Hallelujah Yell.”
Remembering his college cheers, remembering how greatly it had encouraged him in kneeing the opposing tackle or jabbing the rival center’s knee, Elmer observed to himself, “Why shouldn’t we have yells in this game, too?”
He himself wrote the first one known in history.
Hallelujah, praise God, hal, hal, hal! Hallelujah, praise God, hal, hal, hal!
All together, I feel better, Hal, hal, hal, For salvation of the nation—
Aaaaaaaaaaa—men!
That was a thing to hear, when Elmer led them; when he danced before them, swinging his big arms and bellowing, “Now again! Two yards to gain! Two yards for the Savior! Come on, boys and girls, it’s our team! Going to let ’em down? Not on your life! Come on then, you chipmunks, and lemme hear you knock the ole roof off! Hal, hal, hal!”
Many a hesitating boy, a little sickened by the intense brooding femininity of Sharon’s appeal, was thus brought up to the platform to shake hands with Elmer and learn the benefits of religion.
The gospel crew could never consider their converts as human beings, like waiters or manicurists or brakemen, but they had in them
such a professional interest as surgeons take in patients, critics in an author, fishermen in trout.
They were obsessed by the gaffer in Terre Haute who got converted every single night during the meetings. He may have been insane and he may have been a plain drunk, but every evening he came in looking adenoidal and thoroughly backslidden; every evening he slowly woke to his higher needs during the sermon; and when the call for converts came, he leaped up, shouted “Hallelujah, I’ve found it!” and galloped forward, elbowing real and valuable prospects out of the aisle. The crew waited for him as campers for a mosquito.
In Scranton, they had unusually exasperating patients. Scranton had been saved by a number of other evangelists before their arrival, and had become almost anesthetic. Ten nights they sweated over the audience without a single sinner coming forward, and Elmer had to go out and hire half a dozen convincing converts.
He found them in a mission near the river, and explained that by giving a good example to the slothful, they would be doing the work of God, and that if the example was good enough, he would give them five dollars apiece. The missioner himself came in during the conference and offered to get converted for ten, but he was so well known that Elmer had to give him the ten to stay away.
His gang of converts was very impressive, but thereafter no member of the evangelistic troupe was safe. The professional Christians besieged the tent night and day. They wanted to be saved again. When they were refused, they offered to produce new converts at five dollars apiece—three dollars apiece—fifty cents and a square meal. By this time enough authentic and free enthusiasts were appearing, and though they were fervent, they did not relish being saved in company with hoboes who smelled. When the halfdozen cappers were thrown out, bodily, by Elmer and Art Nichols, they took to coming to the meetings and catcalling, so that for the rest of the series they had to be paid a dollar a night each to stay away.
No, Elmer could not consider the converts human. Sometimes when he was out in the audience, playing the bullying hero that
Judson Roberts had once played with him, he looked up at the platform, where a row of men under conviction knelt with their arms on chairs and their broad butts toward the crowd, and he wanted to snicker and wield a small plank. But five minutes after he would be up there, kneeling with a sewing-machine agent with the day-after shakes, his arm round the client’s shoulder, pleading in the tones of a mother cow, “Can’t you surrender to Christ, Brother? Don’t you want to give up all the dreadful habits that are ruining you—keeping you back from success? Listen! God’ll help you make good! And when you’re lonely, old man, remember he’s there, waiting to talk to you!”
VI
They generally, before the end of the meetings, worked up gratifying feeling. Often young women knelt panting, their eyes blank, their lips wide with ecstasy. Sometimes, when Sharon was particularly fired, they actually had the phenomena of the great revivals of 1800. People twitched and jumped with the holy jerks, old people under pentecostal inspiration spoke in unknown tongues— completely unknown; women stretched out senseless, their tongues dripping; and once occurred what connoisseurs regard as the highest example of religious inspiration. Four men and two women crawled about a pillar, barking like dogs, “barking the devil out of the tree.”
Sharon relished these miracles. They showed her talent; they were sound manifestations of Divine Power. But sometimes they got the meetings a bad name, and cynics prostrated her by talking of “Holy Rollers.” Because of this maliciousness and because of the excitement which she found in meetings so favored by the Holy Ghost, Elmer had particularly to comfort her after them.
VII
All the members of the evangelistic crew planned effects to throw a brighter limelight on Sharon. There was feverish discussions of her costumes. Adelbert had planned the girdled white robe in which she
appeared as priestess, and he wanted her to wear it always. “You are so queeeeenly,” he whimpered. But Elmer insisted on changes, on keeping the robe for crucial meetings, and Sharon went out for embroidered golden velvet frocks and, at meetings for business women, smart white flannel suits.
They assisted her also in the preparation of new sermons.
Her “message” was delivered under a hypnotism of emotion, without connection with her actual life. Now Portia, now Ophelia, now Francesca, she drew men to her, did with them as she would. Or again she saw herself as veritably the scourge of God. But however richly she could pour out passion, however flamingly she used the most exotic words and the most complex sentiments when some one had taught them to her, it was impossible for her to originate any sentiment more profound than “I’m unhappy.”
She read nothing, after Cecil Aylston’s going, but the Bible and the advertisements of rival evangelists in the bulletin of the Moody Bible Institute.
Lacking Cecil, it was a desperate and coöperative affair to furnish Sharon with fresh sermons as she grew tired of acting the old ones. Adelbert Shoop provided the poetry. He was fond of poetry. He read Ella Wheeler Wilcox, James Whitcomb Riley, and Thomas Moore. He was also a student of philosophy: he could understand Ralph Waldo Trine perfectly, and he furnished for Sharon’s sermons both the couplets about Home and Little Ones, and the philosophical points about will-power, Thoughts are Things, and Love is Beauty, Beauty is Love, Love is All.
The lady Director of Personal Work had unexpected talent in making up anecdotes about the death-beds of drunkards and agnostics; Lily Anderson, the pretty though anemic pianist, had once been a school-teacher and had read a couple of books about scientists, so she was able to furnish data with which Sharon absolutely confuted the rising fad of evolution; and Art Nichols, the cornetist, provided rude but moral Maine humor, stories about horsetrading, cabbages, and hard cider, very handy for cajoling skeptical business men. But Elmer, being trained theologically, had to weave all the elements—dogma, poetry to the effect that God’s palette held
the sunsets or ever the world began, confessions of the dismally damned, and stories of Maine barn-dances—into one ringing whole.
And meanwhile, besides the Reverend Sister Falconer and the Reverend Mr Gantry, thus coöperative, there were Sharon and Elmer and a crew of quite human people with grievances, traveling together, living together, not always in a state of happy innocence.
CHAPTER XIV I
as a long married couple, intimate and secure, were Elmer and Sharon on most days, and always he was devoted. It was Sharon who was incalculable. Sometimes she was a priestess and a looming disaster, sometimes she was intimidating in grasping passion, sometimes she was thin and writhing and anguished with chagrined doubt of herself, sometimes she was pale and nun-like and still, sometimes she was a chilly business woman, and sometimes she was a little girl. In the last, quite authentic rôle, Elmer loved her fondly—except when she assumed it just as she was due to go out and hypnotize three thousand people.
He would beg her, “Oh, come on now, Shara, please be good! Please stop pouting, and go out and lambaste ’em.”
She would stamp her foot, while her face changed to a round childishness. “No! Don’t want to evangel. Want to be bad. Bad! Want to throw things. Want to go out and spank a bald man on the head. Tired of souls. Want to tell ’em all to go to hell!”
“Oh, gee, please, Shara! Gosh all fishhooks! They’re waiting for you! Adelbert has sung that verse twice now.”
“I don’t care! Sing it again! Sing songs, losh songs! Going to be bad! Going out and drop mice down Adelbert’s fat neck—fat neck— fat hooooooly neck!”
But suddenly: “I wish I could. I wish they’d let me be bad. Oh, I get so tired—all of them reaching for me, sucking my blood, wanting me to give them the courage they’re too flabby to get for themselves!”
And a minute later she was standing before the audience, rejoicing, “Oh, my beloved, the dear Lord has a message for you tonight!”
And in two hours, as they rode in a taxi to the hotel, she was sobbing on his breast: “Hold me close! I’m so lonely and afraid and
cold.”
II
Among his various relations to her, Elmer was Sharon’s employee. And he resented the fact that she was making five times more than he of that money for which he had a reverent admiration.
When they had first made plans, she had suggested:
“Dear, if it all works out properly, in three or four years I want you to share the offerings with me. But first I must save a lot. I’ve got some vague plans to build a big center for our work, maybe with a magazine and a training-school for evangelists. When that’s paid for, you and I can make an agreement. But just now—— How much have you been making as a traveling man?”
“Oh, about three hundred a month—about thirty-five hundred a year.” He was really fond of her; he was lying to the extent of only five hundred.
“Then I’ll start you in at thirty-eight hundred, and in four or five years I hope it’ll be ten thousand, and maybe twice as much.”
And she never, month after month, discussed salary again. It irritated him. He knew that she was making more than twenty thousand a year, and that before long she would probably make fifty thousand. But he loved her so completely that he scarce thought of it oftener than three or four times a month.
III
Sharon continued to house her troupe in hotels, for independence. But an unfortunate misunderstanding came up. Elmer had stayed late in her room, engaged in a business conference, so late that he accidentally fell asleep across the foot of her bed. So tired were they both that neither of them awoke till nine in the morning, when they were aroused by Adelbert Shoop knocking and innocently skipping in.
Sharon raised her head, to see Adelbert giggling.
“How dare you come into my room without knocking, you sausage!” she raged. “Have you no sense of modesty or decency? Beat it! Potato!”
When Adelbert had gone simpering out, cheeping, “Honest, I won’t say anything,” then Elmer fretted, “Golly, do you think he’ll blackmail us?”
“Oh, no, Adelbert adores me. Us girls must stick together. But it does bother me. Suppose it’d been some other guest of the hotel! People misunderstand and criticize so. Tell you what let’s do. Hereafter, in each town, let’s hire a big house, furnished, for the whole crew. Still be independent, but nobody around to talk about us. And prob’ly we can get a dandy house quite cheap from some church-member. That would be lovely! When we get sick of working so hard all the time, we could have a party just for ourselves, and have a dance. I love to dance. Oh, of course I roast dancing in my sermons, but I mean—when it’s with people like us, that understand, it’s not like with worldly people, where it would lead to evil. A party! Though Art Nichols would get drunk. Oh, let him! He works so hard. Now you skip. Wait! Aren’t you going to kiss me good morning?”
They made sure of Adelbert’s loyalty by flattering him, and the press-agent had orders to find a spacious furnished house in the city to which they were going next.
IV
The renting of furnished houses for the Falconer Evangelistic Party was a ripe cause for new quarrels with local committees, particularly after the party had left town.
There were protests by the infuriated owners that the sacred workers must have been, as one deacon-undertaker put it, “simply raising the very devil.” He asserted that the furniture had been burned with cigarette stubs, that whisky had been spilled on rugs, that chairs had been broken. He claimed damages from the local committee; the local committee sent the claims on to Sharon; there was a deal of fervent correspondence; and the claims were never paid.
Though usually it did not come out till the series of meetings was finished, so that there was no interference with saving the world, these arguments about the private affairs of the evangelistic crew started most regrettable rumors. The ungodly emitted loud scoffings. Sweet repressed old maids wondered and wondered what might really have happened, and speculated together in delightful horror as to whether—uh—there could have been anything—uh—worse than drinking going on.
But always a majority of the faithful argued logically that Sister Falconer and Brother Gantry were righteous, therefore they could not do anything unrighteous, therefore the rumors were inspired by the devil and spread by saloon-keepers and infidels, and in face of this persecution of the godly, the adherents were the more lyric in support of the Falconer Party.
Elmer learned from the discussions of damages a pleasant way of reducing expenses. At the end of their stay, they simply did not pay the rent for their house. They informed the local committee, after they had gone, that the committee had promised to provide living quarters, and that was all there was to it. . . . There was a lot of correspondence.
VOne of Sharon’s chief troubles was getting her crew to bed. Like most actors, they were high-strung after the show. Some of them were too nervous to sleep till they had read the Saturday Evening Post; others never could eat till after the meetings, and till one o’clock they fried eggs and scrambled eggs and burnt toast and quarreled over the dish-washing. Despite their enlightened public stand against the Demon Rum, some of the performers had to brace up their nerves with an occasional quart of whisky, and there was dancing and assorted glee.
Though sometimes she exploded all over them, usually Sharon was amiably blind, and she had too many conferences with Elmer to give much heed to the parties.
Lily Anderson, the pale pianist, protested. They ought all, she said, to go to bed early so they could be up early. They ought, she said, to go oftener to the cottage prayer meetings. The others insisted that this was too much to expect of people exhausted by their daily three hours of work, but she reminded them that they were doing the work of the Lord, and they ought to be willing to wear themselves out in such service. They were, said they; but not tonight.
After days when Art Nichols, the cornetist, and Adolph Klebs, the violinist, had such heads at ten in the morning that they had to take pick-me-ups, would come days when all of them, even Art and Adolph, were hysterically religious; when quite privately they prayed and repented and raised their voices in ululating quavers of divine rapture, till Sharon said furiously that she didn’t know whether she preferred to be waked up by hell-raising or hallelujahs. Yet once she bought a traveling phonograph for them, and many records, half hectic dances and half hymns.
VI
Though her presence nearly took away his need of other stimulants, of tobacco and alcohol and most of his cursing, it was a year before Elmer was altogether secure from the thought of them. But gradually he saw himself certain of future power and applause as a clergyman. His ambition became more important than the titillation of alcohol, and he felt very virtuous and pleased.
Those were big days, rejoicing days, sunny days. He had everything: his girl, his work, his fame, his power over people. When they held meetings in Topeka, his mother came from Paris to hear them, and as she watched her son addressing two thousand people, all the heavy graveyard doubts which had rotted her after his exit from Mizpah Seminary vanished.
He felt now that he belonged. The gospel crew had accepted him as their assistant foreman, as bolder and stronger and trickier than any save Sharon, and they followed him like family dogs. He imagined a day when he would marry Sharon, supersede her as leader—letting her preach now and then as a feature—and become
one of the great evangelists of the land. He belonged. When he encountered fellow evangelists, no matter how celebrated, he was pleased but not awed.
Didn’t Sharon and he meet no less an evangelist than Dr Howard Bancock Binch, the great Baptist defender of the literal interpretation of the Bible, president of the True Gospel Training School for Religious Workers, editor of The Keeper of the Vineyard, and author of “Fool Errors of So-Called Science”? Didn’t Dr. Binch treat Elmer like a son?
Dr. Binch happened to be in Joliet, on his way to receive his sixth D. D. degree (from Abner College) during Sharon’s meetings there. He lunched with Sharon and Elmer.
“Which hymns do you find the most effective when you make your appeal for converts, Dr. Binch?” asked Elmer.
“Well, I’ll tell you, Brother Gantry,” said the authority. “I think ‘Just as I Am’ and ‘Jesus, I Am Coming Home’ hit real folksy hearts like nothing else.”
“Oh, I’m afraid I don’t agree with you,” protested Sharon. “It seems to me—of course you have far more experience and talent than I, Dr. Binch—”
“Not at all, my dear sister,” said Dr. Binch, with a leer which sickened Elmer with jealousy. “You are young, but all of us recognize your genius.”
“Thank you very much. But I mean: They’re not lively enough. I feel we ought to use hymns with a swing to ’em, hymns that make you dance right up to the mourners’ bench.”
Dr. Binch stopped gulping his fried pork chops and held up a flabby, white, holy hand. “Oh, Sister Falconer, I hate to have you use the word ‘dance’ regarding an evangelistic meeting! What is the dance? It is the gateway to hell! How many innocent girls have found in the dance-hall the allurement which leads to every nameless vice!”
Two minutes of information about dancing—given in the same words that Sharon herself often used—and Dr. Binch wound up with a hearty: “So I beg of you not to speak of ‘dancing to the mourners’ bench!’ ”
“I know, Dr Binch, I know, but I mean in its sacred sense, as of David dancing before the Lord.”
“But I feel there was a different meaning to that. If you only knew the original Hebrew—the word should not be translated ‘danced’ but ‘was moved by the spirit.’ ”
“Really? I didn’t know that. I’ll use that.”
They all looked learned.
“What methods, Dr. Binch,” asked Elmer, “do you find the most successful in forcing people to come to the altar when they resist the Holy Ghost?”
“I always begin by asking those interested in being prayed for to hold up their hands.”
“Oh, I believe in having them stand up if they want prayer. Once you get a fellow to his feet, it’s so much easier to coax him out into the aisle and down to the front. If he just holds up his hand, he may pull it down before you can spot him. We’ve trained our ushers to jump right in the minute anybody gets up, and say ‘Now, Brother, won’t you come down front and shake hands with Sister Falconer and make your stand for Jesus?’ ”
“No,” said Dr. Binch, “my experience is that there are many timid people who have to be led gradually. To ask them to stand up is too big a step. But actually, we’re probably both right. My motto as a soul-saver, if I may venture to apply such a lofty title to myself, is that one should use every method that, in the vernacular, will sell the goods.”
“I guess that’s right,” said Elmer “Say, tell me, Dr Binch, what do you do with converts after they come to the altar?”
“I always try to have a separate room for ’em. That gives you a real chance to deepen and richen their new experience. They can’t escape, if you close the door. And there’s no crowd to stare and embarrass them.”
“I can’t see that,” said Sharon. “I believe that if the people who come forward are making a stand for Christ, they ought to be willing to face the crowd. And it makes such an impression on the whole
bunch of the unsaved to see a lot of seekers at the mourners’ bench. You must admit, Brother Binch—Dr. Binch, I should say—that lots of people who just come to a revival for a good time are moved to conviction epidemically, by seeing others shaken.”
“No, I can’t agree that that’s so important as making a deeper impression on each convert, so that each goes out as an agent for you, as it were. But every one to his own methods. I mean so long as the Lord is with us and behind us.”
“Say, Dr. Binch,” said Elmer, “how do you count your converts? Some of the preachers in this last town accused us of lying about the number. On what basis do you count them?”
“Why, I count every one (and we use a recording machine) that comes down to the front and shakes hands with me. What if some of them are merely old church-members warmed over? Isn’t it worth just as much to give new spiritual life to those who’ve had it and lost it?”
“Of course it is. That’s what we think. And then we got criticized there in that fool town! We tried—that is, Sister Falconer here tried— a stunt that was new for us. We opened up on some of the worst dives and blind tigers by name. We even gave street numbers. The attack created a howling sensation; people just jammed in, hoping we’d attack other places. I believe that’s a good policy. We’re going to try it here next week. It puts the fear of God into the wicked, and slams over the revival.”
“There’s danger in that sort of thing, though,” said Dr. Binch. “I don’t advise it. Trouble is, in such an attack you’re liable to offend some of the leading church-members—the very folks that contribute the most cash to a revival. They’re often the owners of buildings that get used by unscrupulous persons for immoral purposes, and while they of course regret such unfortunate use of their property, if you attack such places by name, you’re likely to lose their support. Why, you might lose thousands of dollars! It seems to me wiser and more Christian to just attack vice in general.”
“How much orchestra do you use, Dr. Binch?” asked Sharon.
“All I can get hold of. I’m carrying a pianist, a violinist, a drummer, and a cornetist, besides my soloist.”
“But don’t you find some people objecting to fiddling?”
“Oh, yes, but I jolly ’em out of it by saying I don’t believe in letting the devil monopolize all these art things,” said Dr. Binch. “Besides, I find that a good tune, sort of a nice, artistic, slow, sad one, puts folks into a mood where they’ll come across both with their hearts and their contributions. By the way, speaking of that, what luck have you folks had recently in raising money? And what method do you use?”
“It’s been pretty good with us—and I need a lot, because I’m supporting an orphanage,” said Sharon. “We’re sticking to the idea of the free-will offering the last day. We can get more money than any town would be willing to guarantee beforehand. If the appeal for the free-will offering is made strong enough, we usually have pretty fair results.”
“Yes, I use the same method. But I don’t like the term ‘free-will offering,’ or ‘thank offering.’ It’s been used so much by merely second-rate evangelists, who, and I grieve to say there are such people, put their own gain before the service of the Kingdom, that it’s got a commercial sound. In making my own appeal for contributions, I use ‘love offering.’ ”
“That’s worth thinking over, Dr. Binch,” sighed Sharon, “but, oh, how tragic it is that we, with our message of salvation—if the sad old world would but listen, we could solve all its sorrows and difficulties —yet with this message ready, we have to be practical and raise money for our expenses and charities. Oh, the world doesn’t appreciate evangelists. Think what we can do for a resident minister! These preachers who talk about conducting their own revivals make me sick! They don’t know the right technique. Conducting revivals is a profession. One must know all the tricks. With all modesty, I figure that I know just what will bring in the converts.”
“I’m sure you do, Sister Falconer,” from Binch. “Say, do you and Brother Gantry like union revivals?”
“You bet your life we do,” said Brother Gantry. “We won’t conduct a revival unless we can have the united support of all the evangelical
preachers in town.”
“I think you are mistaken, Brother Gantry,” said Dr. Binch. “I find that I have the most successful meetings with only a few churches, but all of them genuinely O. K With all the preachers joined together, you have to deal with a lot of these two-by-four hick preachers with churches about the size of woodsheds and getting maybe eleven hundred a year, and yet they think they have the right to make suggestions! No, sir! I want to do business with the big down-town preachers that are used to doing things in a high-grade way and that don’t kick if you take a decent-sized offering out of town!”
“Yuh, there’s something to be said for that,” said Elmer. “That’s what the Happy Sing Evangelist—you know, Bill Buttle—said to us one time.”
“But I hope you don’t like Brother Buttle!” protested Dr. Binch.
“Oh, no! Anyway, I didn’t like him,” said Sharon, which was a wifely slap at Elmer.
Dr. Binch snorted, “He’s a scoundrel! There’s rumors about his wife’s leaving him. Why is it that in such a high calling as ours there are so many rascals? Take Dr. Mortonby! Calling himself a cover-tocover literalist, and then his relations to the young woman who sings for him—I would shock you, Sister Falconer, if I told you what I suspect.”
“Oh, I know. I haven’t met him, but I hear dreadful things,” wailed Sharon. “And Wesley Zigler! They say he drinks! And an evangelist! Why, if any person connected with me were so much as to take one drink, out he goes!”
“That’s right, that’s right. Isn’t it dreadful!” mourned Dr. Binch. “And take this charlatan Edgar Edgars—this obscene ex-gambler with his disgusting slang! Uh! The hypocrite!”
Joyously they pointed out that this rival artist in evangelism was an ignoramus, that a passer of bogus checks, the other doubtful about the doctrine of the premillennial coming; joyously they concluded that the only intelligent and moral evangelists in America were Dr. Binch, Sister Falconer, and Brother Gantry, and the lunch broke up in an orgy of thanksgiving.
“There’s the worst swell-head and four-flusher in America, that Binch, and he’s shaky on Jonah, and I’ve heard he chews tobacco— and then pretending to be so swell and citified. Be careful of him,” said Sharon to Elmer afterward, and, “Oh, my dear, my dear!”
CHAPTER XV I
was not her eloquence but her healing of the sick which raised Sharon to such eminence that she promised to become the most renowned evangelist in America. People were tired of eloquence; and the whole evangelist business was limited, since even the most ardent were not likely to be saved more than three or four times. But they could be healed constantly, and of the same disease.
Healing was later to become the chief feature of many evangelists, but in 1910 it was advertised chiefly by Christian Scientists and the New Thoughters. Sharon came to it by accident. She had regularly offered prayers for the sick, but only absentmindedly. When Elmer and she had been together for a year, during her meetings in Schenectady a man led up his deaf wife and begged Sharon to heal her. It amused Sharon to send out for some oil (it happened to be shotgun oil, but she properly consecrated it) to anoint the woman’s ears, and to pray lustily for healing.
The woman screamed, “Glory to God, I’ve got my hearing back!”
There was a sensation in the tabernacle, and everybody itched with desire to be relieved of whatever ailed him. Elmer led the healed deaf woman aside and asked her name for the newspapers. It is true that she could not hear him, but he wrote out his questions, she wrote the answers, and he got an excellent story for the papers and an idea for their holy work.
Why, he put it to Sharon, shouldn’t she make healing a regular feature?
“I don’t know that I have any gift for it,” considered Sharon.
“Sure you have! Aren’t you psychic? You bet. Go to it. We might pull off some healing services. I bet the collections would bust all records, and we’ll have a distinct understanding with the local committees that we get all over a certain amount, besides the collection the last day.”
“Well, we might try one. Of course, the Lord may have blessed me with special gifts that way, and to him be all the credit, oh, let’s stop in here and have an ice cream soda, I love banana splits, I hope nobody sees me, I feel like dancing tonight, anyway we’ll talk over the possibility of healing, I’m going to take a hot bath the minute we get home with losh bath salts—losh and losh and losh.”
The success was immense.
She alienated many evangelical pastors by divine healing, but she won all the readers of books about will-power, and her daily miracles were reported in the newspapers. And, or so it was reported, some of her patients remained cured.
She murmured to Elmer, “You know, maybe there really is something to this healing, and I get an enormous thrill out of it— telling the lame to chuck their crutches. That man last night, that cripple—he did feel lots better.”
They decorated the altar now with crutches and walking-sticks, all given by grateful patients—except such as Elmer had been compelled to buy to make the exhibit inspiring from the start.
Money gamboled in. One grateful patient gave Sharon five thousand dollars. And Elmer and Sharon had their only quarrel, except for occasional spats of temperament. With the increase in profits, he demanded a rise of salary, and she insisted that her charities took all she had.
“Yuh, I’ve heard a lot about ’em,” said he: “the Old Ladies’ Home and the orphanage and the hoosegow for retired preachers. I suppose you carry ’em along with you on the road!”
“Do you mean to insinuate, my good friend, that I—”
They talked in a thoroughly spirited and domestic manner, and afterward she raised his salary to five thousand and kissed him.
With the money so easily come by, Sharon burst out in hectic plans. She was going to buy a ten-thousand-acre farm for a Christian Socialist colony and a university, and she went so far as to get a three-months’ option on two hundred acres. She was going to have a great national daily paper, with crime news, scandal, and athletics omitted, and a daily Bible lesson on the front page. She was going to
organize a new crusade—an army of ten million which would march through heathen countries and convert the entire world to Christianity in this generation.
She did, at last, actually carry out one plan, and create a headquarters for her summer meetings.
At Clontar, a resort on the New Jersey coast, she bought the pier on which Benno Hackenschmidt used to give grand opera. Though the investment was so large that even for the initial payment it took almost every penny she had saved, she calculated that she would make money because she would be the absolute owner and not have to share contributions with local churches. And, remaining in one spot, she would build up more prestige than by moving from place to place and having to advertise her virtues anew in every town.
In a gay frenzy she planned that if she was successful, she would keep the Clontar pier for summer and build an all-winter tabernacle in New York or Chicago. She saw herself another Mary Baker Eddy, an Annie Besant, a Katherine Tingley. . . . Elmer Gantry was shocked when she hinted that, who knows? the next Messiah might be a woman, and that woman might now be on earth, just realizing her divinity.
The pier was an immense structure, built of cheap knotty pine, painted a hectic red with gold stripes. It was pleasant, however, on hot evenings. Round it ran a promenade out over the water, where once lovers had strolled between acts of the opera, and giving on the promenade were many barnlike doors.
Sharon christened it “The Waters of Jordan Tabernacle,” added more and redder paint, more golden gold, and erected an enormous revolving cross, lighted at night with yellow and ruby electric bulbs.
The whole gospel crew went to Clontar early in June to make ready for the great opening on the evening of the first of July.
They had to enlist volunteer ushers and personal workers, and Sharon and Adelbert Shoop had notions about a huge robed choir, with three or four paid soloists.
Elmer had less zeal than usual in helping her, because an unfortunate thing had gone and happened to Elmer. He saw that he really ought to be more friendly with Lily Anderson, the pianist. While he remained true to Sharon, he had cumulatively been feeling that it was sheer carelessness to let the pretty and anemic and virginal Lily be wasted. He had been driven to notice her through indignation at Art Nichols, the cornetist, for having the same idea.
Elmer was fascinated by her unawakenedness. While he continued to be devoted to Sharon, over her shoulder he was always looking at Lily’s pale sweetness, and his lips were moist.
II
They sat on the beach by moonlight, Sharon and Elmer, the night before the opening service.
All of Clontar, with its mile of comfortable summer villas and gingerbread hotels, was excited over the tabernacle, and the Chamber of Commerce had announced, “We commend to the whole Jersey coast this high-class spiritual feature, the latest addition to the manifold attractions and points of interest at the snappiest of all summer colonies.”
A choir of two hundred had been coaxed in, and some of them had been persuaded to buy their own robes and mortar boards.
Near the sand dune against which Sharon and Elmer lolled was the tabernacle, over which the electric cross turned solemnly, throwing its glare now on the rushing surf, now across the bleak sand.
“And it’s mine!” Sharon trembled. “I’ve made it! Four thousand seats, and I guess it’s the only Christian tabernacle built out over the water! Elmer, it almost scares me! So much responsibility! Thousands of poor troubled souls turning to me for help, and if I fail them, if I’m weak or tired or greedy, I’ll be murdering their very souls. I almost wish I were back safe in Virginia!”
Her enchanted voice wove itself with the menace of the breakers, feeble against the crash of broken waters, passionate in the lull, while the great cross turned its unceasing light.
