Very much enjoyed listening to you on BBC Hardtalk this morning - and nice to hear your voice after years of reading your words!
(1) Stephen Sackur spent quite a long time on "absolute certainty." I wonder if that emphasis is peculiarly British - or even a peculiarly Church of England? It seems to me that in the UK there is quite a fierce fight over, as it were, the final 1% of faith. Perhaps secularism in the UK is shaped by a kind of anti-secularist who is prepared to concede a great deal and then dig in - a kind of opponent less common in the US (and elsewhere?).
I see that final 1% as a territory in which, for the anti-secularist at least, there is an enhanced role for tact, and a reduced role for dialectic steered by evidential claims. Does the secularist necessarily need to dispute that priority?
I am trying to picture those secular practices you talked about replacing religious institutions. Do you think, I wonder, they might still use religious language and ideas, but in a euphemistic way? I'm not sure! But I'm sure there are human institutions whose self-understanding involves propositions which everyone knows, when it comes down to it, aren't strictly true. Their truth is not their point. (So maybe, "We can usefully regard human life from an Inspirational Stance . . .").
The disjunct between what is ritually professed, and what comes out in an anonymised and/or scientistic context, is pretty suggestive. For instance: not too long ago a survey of Church of England clergy suggested that only roughly half believed in the immaculate conception. (OK, I must be careful not to caricature the C of E - it is certainly not already a secular replacement for a religious institution, and belief in the power of prayer, for instance, is widespread and often extremely strong. But still).
Related: right at the start when you mentioned "replacements" I thought it was a caution, rather than a hope. In other words, the decline of institutionalised religion could provide a space for the institutionalisation, or informal flourishing, of other forms of irrationalism. I soon found out what you really meant. But it is intriguing how certain superstitions may act as checks on others.
So perhaps the atheist's job, in this context, is to tactfully nudge and rearrange evidentially unsupportable thoughts, language, practices, rather than try to expunge them. To compartmentalise them, in other words, so that religion and/or its successor superstitions don't compromise us as epistemological and as ethical beings. (I think of Don Cupitt in more or less-this-mould (though perhaps he asks the traditional Christian to concede only 90%, not 99%)).
You mentioned religious scientists who can compartmentalise their mental life, so that their belief in the impossible doesn't compromise their studies. The White Queen in Through the Looking Glass believes in six impossible things before breakfast, very rigorous and extreme compartmentalisation!
The kind of transitional arrangements to a form of rationalism in which superstition resides as a commensalistic or mutualistic presence would have to be much subtler. In this regard, the atheist may need to start being a bit more of a theologian, dwelling in mysteries.
Sometimes fairly literally a theologian: when there is a fierce fight over the last 1% of faith, atheists have an obligation to intervene, with great tact and imagination, in theological debates. They have an obligation to demonstrate exegetical acuity and a kind of intellectually-developed empathy with the experience of revelation and its aftermath. They thereby both earn their authority and have a chance at recovering the rationalist elements of institutionalised irrationalism. (I know this because it came to me in a dream).
(2) Your Intuition Pump (/Pomp) about religion and music is really excellent! What if a scientific consensus told you music was bad for you, that you can allow yourself a little of it (like drink or drugs or delicious food, perhaps), but no more? Perhaps that's what it feels like to be a person of faith confronted with secularism.
Except . . . don't you think it's cheating a little to allow yourself those few bits of music? I just think losing one's faith tends to be a more dramatic shift.
Perhaps a closer analogy would be if all recorded music, all rehearsed music and all music involving instruments were bad for you. You would have to learn to hear a different music: bird song, the cadences of the speaking voice, the music of the wind in the leaves, the song of the cityscape, etc. It sounds pretty awful to me. Or perhaps the analogy should be, you can only listen to Bruce Springsteen (not including the Seeger sessions). OMG, I think I'd have to start a cult!
Best,
L
Monday, 1 April 2013
Friday, 1 February 2013
Corporate Responsibility Reporting Assurance (3)
What is assurance anyway, Lara? Ha! I'm glad you asked.
OK, so let me introduce assurance and begin to analyse the concept of independence on which it depends. The contemporary assurance market is rooted in an explosion in social accounting experiments in the 1970s (Hess 2001). CR reporting declined and theoretical interest waned during the recession of the early 1980s. Environmental auditing and reporting picked up in the 1990s, and then underwent a steady expansion of remit. See Elkington (1994) on the “triple bottom line” of economic, social and environmental dimensions of organisational success. CR reports characteristically address all three dimensions.
In 2007 nearly 80% of the largest 250 companies worldwide issued annual CR reports, compared to about 50% in 2005 (KPMG 2008). I'm unsure where we are today, although I have a horrible feeling CR and CR reporting has slipped down the list of priorities since the most recent global financial crisis. CR shouldn't be one of a set of priorities: it should be the most important aspect of every priority a firm has.
CR is a highly complex and divisive concept. CR disclosure, especially in the form of annual standalone CR reports, is seen as one way of improving the deliberative setting in which the concept is contested.
Whenever there has been growing interest in CR reporting, there has also been a rise in independent assurance of CR reports. This is unsurprising, given the “growing body of social and environmental accounting research that finds corporate posturing and deception in the absence of external monitoring and verification” (Laufer 2003:254). Surveys regularly show public distrust of statements of business leaders (see e.g. BBC 2002). In 2007, about 40% of companies of the largest 250 companies worldwide used some form of assurance in their reports.
Before we go any further, we need to settle on a stipulative definition of assurance. As used by accountants, it is a very broad term covering the audit of financial statements, as well as various due diligence, attestation and agreed-upon-procedures engagements, and customised services which may or may not result in a standard form of report.
In the context of CR reporting, assurance sometimes refers to any tactic intended to add credibility to a corporate disclosure. This may include those which bear no obvious relation to accounting methodology. SustainAbility (2005:1) offer four categories of assurance unrelated to accounting methodology: evaluation, certification (e.g., against the SA8000 standard), expert statement (e.g., from NGOs or academics), and stakeholder commentary.
To further confuse matters, academics sometimes use audit as a broad term encompassing certification, consultancy and assurance activities which the accountancy profession would categorise as non-audit. This use is characteristic of Critical Management Studies; there “audit” emphasises the financial origins, and ostensibly mathematically-reductionist presuppositions of a positivist governance paradigm, for example Power and Laughlin (1992).
There is some inconsistency in the way the term assurance is used by the Big Four. Generally speaking, audit of financial statements is recognised as a sub-type of assurance. But since it is the main sub-type, referring to assurance rather than audit can imply that services other than financial audit are meant. PwC, for example, calls its core service line “Audit and Assurance,” tacitly differentiating the two.
In these blog posts, except where noted, assurance refers only to the assurance of CR reports in a manner that is “systematic, documented, evidence-based, and characterized by defined procedures” (GRI 2006:38), not to any of the wide range of engagements identified above. Audit refers only to the audit of financial statements.
The Big Four and a few other large accountancy firms dominate the assurance market. Technical or issue experts and specialist assurance provider firms have a sizeable minority share. Many companies use stakeholder panels and other third-party commentary to add credibility to their CR reports, but few firms combine these methods with formal assurance (KPMG 2008).
In addition to financial audit and assurance, the Big Four offer their clients a huge variety of consultancy and certification services. Assurance needs to be provisionally distinguished from these services. In assurance, there is a subject matter, a set of suitable criteria, and a tripartite relationship between assurance practitioner, entity responsible for the subject matter, and intended users of the subject matter. This standard break-down can be seen for example in IAASB 2004:283. A case in point is: the Vodafone Corporate Responsibility Report 2008/09 (subject matter); GRI’s G3 Guidelines and AccountAbility’s AA1000APS (criteria); KPMG LLP (assuror); Vodafone Group plc (responsible entity); Vodafone’s stakeholders (intended users of the subject matter).
The intended users of a subject matter often include the responsible entity itself, but to speak of “assurance” implies that the responsible entity is not the only user. This distinguishes assurance from consultancy. Assurors are “third parties,” positioned between the responsible entity and the intended users of the subject matter. The assuror applies the criteria to the subject matter, and issues a statement summarizing its findings. The assuror thereby advises the intended users on what level of trust they can place in the subject matter.
This assurance statement is usually included in the CR report itself. The statement is often of the form that the subject matter is “fairly stated.” The statement usually also includes a high-level summary of methodology, and sometimes includes areas in which the responsible entity could show improvement. A formidable liability statement is the final piece of the assurance statement.
This liability statement points to the difference between assurance and certification. Assurance is characterised by a comparatively low transfer of liability to the assuror. If the subject matter proves, contrary to the assurance statement, to be misstated, the assuror is fairly well-protected from torts initiated by those who have relied on it.
Liability is roughly correlated with reputation. In other words, if a certification agency only had the degree of confidence implicit in assurance when it issued its certifications, they would probably lose their credibility. However, the correlation is more exacting in the business world than in the wider public domain. In the case of financial audit, the transfer of liability to the auditor is consistently beneath public expectations. Audit has a reputation as certification against fraud – but is not considered so by auditors or by the law. Ha! See Millichamp (2002:2). This disparity is known, in a rather smug and patrician and euphemistic sort of way, as the “expectation gap.” Humphrey et al. (1992:57) argue that the expectation gap allows the accountancy profession to “convey an impression of responding to public concern; to reaffirm its independent and selfless image; to assert the validity of its own perspectives on the nature of the audit function; and to direct questioning away from the existing audit system to the limits of proposed reforms and solutions for closing the expectations gap.” For empirical work on the expectation gap see e.g. Monroe and Woodliff (2009).
Indeed, the boundaries of consultancy, certification, and assurance are in practice often blurred. There is an iterative quality to assurance, such that the responsible entity is advised periodically what steps are necessary to acquire an assurance statement. KPMG comment, “Once we receive a reasonable draft of the client’s sustainability report we can check whether the identified issues are covered and whether the information on a material issue is balanced. This is usually the start of a lively debate with the client about what different parties may perceive to be material for their organization, which is more difficult to define if the client’s own stakeholder engagement processes are not fully developed” (AccountAbility 2007:9).
In this way, assurance may drive improvements in CR reporting and underlying CR policies. However, Big Four descriptions of assurance accentuate how their independence can generate credibility, not how it can drive organisational change.
This is our first indication of an orientation to the audit of financial statements. A brief history will help to explain. The link between audit and consultancy has been by far the most publicly contentious issue relating to auditor independence. In the late 1990s fierce criticism and a string of court cases persuaded all of the Big Five except Deloitte to sell or spin off their consultancy businesses. Deloitte also initially announced its intention to split into separate audit and consultancy firms. Following the collapse of Arthur Andersen (producing the Big Four from the Big Five) after its provision of dubious consultancy and audit services to Enron, a raft of tighter regulatory measures, notably the Sarbanes-Oxley Act 2002 in the US (“SOX”), seemed to take the problem of the relationship between audit and consultancy out of the Big Four’s hands. Deloitte thus elected to retain its consultancy business, which proved extremely profitable throughout the next decade. The other Big Four firms have quietly rebuilt their consultancy businesses. The issue remains a senstive one, however, and the Big Four seldom seek to thematise any complementarity of audit and consultancy.
But as Bendell (2005) argues, the link between CR consultancy and assurance is not so obviously problematic. Declining to assure a CR report does not lead to a dramatic loss of investor confidence, as is typical when an auditor refuses to sign off on a set of financial statements, or challenges a company’s “going concern” assumption. Similarly, “shopping around” for an assuror of CR reports is unlikely to make investors nervous in the same way switching auditors tends to, so ideas for organisatonal change can be drawn from a larger pool. Such advantages may outweigh the risk that assurors exaggerate the success of systems which, wearing their consultancy hats, they helped to design. See Beattie and Fernley (2003) for a literature review around auditor independence and the provision of non-audit services, and Cragg (2005:96-97) for examples of independence issues arising from consultancy in the context of CR report assurance and social audit.
The Deloitte web site offers a typical Big Four rationale for assurance: “As the importance in and reliance of [sic] these [CR] reports increases, there is a growing trend to add credibility to the information presented through assurance. The benefits include greater transparency, increased stakeholder confidence and enhanced regulatory compliance.”
The appeals to “greater transparency” and “increased stakeholder confidence” confirm that in Deloitte’s view, the point of assurance is credibility. “Enhanced regulatory compliance” whispers at organisational change, but it is an oblique phrase in need of some interpretation. Corporations in the UK are not legally obliged to undertake CR policies. The Companies Act 2006 requires that publicly listed companies include information in their annual report on “environmental matters,” “the company’s employees” and “social and community issues” (Section 417, Para 5). Assurance thus neither constitutes, nor falls under, any kind of state-mandated compliance regime. Listing “regulatory compliance” simpliciter as a benefit would make mandatory activities appear to depend on discretionary ones, and the main function of “enhanced” is to neutralise this connotation.
But there is also a ubiquitous expectation that CR will be increasingly legalised, and that reporting will be an early focus of this legalisation. For example, France has required publicly listed companies to publish annual environmental and social reports since 2001. A European Parliament resolution in 2007 recommended the revision of the Fourth Company Law Directive to include social and environmental reporting alongside financial reporting requirements. “Enhanced” thus also carries a sense of “ahead of the game” – organisations which assure their CR reports will find the transition easier when CR and CR reporting are inscribed in law. In this connection, “enhanced regulatory compliance” also imparts a sense of “enhanced standardisation”; that is, of compliance with widely-recognised standards like the G3, even though such guidelines are not regulatory in any straightforward sense.
That typo - a botched edit, actually - is exemplary of the kind of anxiety and confusion surrounding the purposes and priorities of CR reporting. It is likely that the phrase was originally “the reliance in and importance of these reports”; reliance connoting de facto market realities, importance with just a hint of idealism about it. The importance was deemed more important, but the editor left traces of his or her work.
Elsewhere Deloitte (2009:3) are confident enough to set a date on legalisation. “2015-2030 – Increasing legislation, regulation and tax policies force reactive organisations to adopt sustainable behaviour which now becomes a license to operate as unsustainable supply chains seem increasingly outdated. A few popular sustainable approaches and quality stamps emerge as standard, allowing benchmarking and greater consumer visibility. Increasing collaboration between non-competing organisations emerges as the main route to sustaining competitive advantage.”
From the Big Four’s perspective, responsibility for the economic, social and environmental impact of business is migrating inevitably from the public sector to the state sector, driven by ratcheting public expectations. Good CR policies, such as the assurance of CR reports, have their value in positioning businesses advantageously in this shift, and allowing them to shape a few of its specific characteristics.
OK, so let me introduce assurance and begin to analyse the concept of independence on which it depends. The contemporary assurance market is rooted in an explosion in social accounting experiments in the 1970s (Hess 2001). CR reporting declined and theoretical interest waned during the recession of the early 1980s. Environmental auditing and reporting picked up in the 1990s, and then underwent a steady expansion of remit. See Elkington (1994) on the “triple bottom line” of economic, social and environmental dimensions of organisational success. CR reports characteristically address all three dimensions.
In 2007 nearly 80% of the largest 250 companies worldwide issued annual CR reports, compared to about 50% in 2005 (KPMG 2008). I'm unsure where we are today, although I have a horrible feeling CR and CR reporting has slipped down the list of priorities since the most recent global financial crisis. CR shouldn't be one of a set of priorities: it should be the most important aspect of every priority a firm has.
CR is a highly complex and divisive concept. CR disclosure, especially in the form of annual standalone CR reports, is seen as one way of improving the deliberative setting in which the concept is contested.
Whenever there has been growing interest in CR reporting, there has also been a rise in independent assurance of CR reports. This is unsurprising, given the “growing body of social and environmental accounting research that finds corporate posturing and deception in the absence of external monitoring and verification” (Laufer 2003:254). Surveys regularly show public distrust of statements of business leaders (see e.g. BBC 2002). In 2007, about 40% of companies of the largest 250 companies worldwide used some form of assurance in their reports.
Before we go any further, we need to settle on a stipulative definition of assurance. As used by accountants, it is a very broad term covering the audit of financial statements, as well as various due diligence, attestation and agreed-upon-procedures engagements, and customised services which may or may not result in a standard form of report.
In the context of CR reporting, assurance sometimes refers to any tactic intended to add credibility to a corporate disclosure. This may include those which bear no obvious relation to accounting methodology. SustainAbility (2005:1) offer four categories of assurance unrelated to accounting methodology: evaluation, certification (e.g., against the SA8000 standard), expert statement (e.g., from NGOs or academics), and stakeholder commentary.
To further confuse matters, academics sometimes use audit as a broad term encompassing certification, consultancy and assurance activities which the accountancy profession would categorise as non-audit. This use is characteristic of Critical Management Studies; there “audit” emphasises the financial origins, and ostensibly mathematically-reductionist presuppositions of a positivist governance paradigm, for example Power and Laughlin (1992).
There is some inconsistency in the way the term assurance is used by the Big Four. Generally speaking, audit of financial statements is recognised as a sub-type of assurance. But since it is the main sub-type, referring to assurance rather than audit can imply that services other than financial audit are meant. PwC, for example, calls its core service line “Audit and Assurance,” tacitly differentiating the two.
In these blog posts, except where noted, assurance refers only to the assurance of CR reports in a manner that is “systematic, documented, evidence-based, and characterized by defined procedures” (GRI 2006:38), not to any of the wide range of engagements identified above. Audit refers only to the audit of financial statements.
The Big Four and a few other large accountancy firms dominate the assurance market. Technical or issue experts and specialist assurance provider firms have a sizeable minority share. Many companies use stakeholder panels and other third-party commentary to add credibility to their CR reports, but few firms combine these methods with formal assurance (KPMG 2008).
In addition to financial audit and assurance, the Big Four offer their clients a huge variety of consultancy and certification services. Assurance needs to be provisionally distinguished from these services. In assurance, there is a subject matter, a set of suitable criteria, and a tripartite relationship between assurance practitioner, entity responsible for the subject matter, and intended users of the subject matter. This standard break-down can be seen for example in IAASB 2004:283. A case in point is: the Vodafone Corporate Responsibility Report 2008/09 (subject matter); GRI’s G3 Guidelines and AccountAbility’s AA1000APS (criteria); KPMG LLP (assuror); Vodafone Group plc (responsible entity); Vodafone’s stakeholders (intended users of the subject matter).
The intended users of a subject matter often include the responsible entity itself, but to speak of “assurance” implies that the responsible entity is not the only user. This distinguishes assurance from consultancy. Assurors are “third parties,” positioned between the responsible entity and the intended users of the subject matter. The assuror applies the criteria to the subject matter, and issues a statement summarizing its findings. The assuror thereby advises the intended users on what level of trust they can place in the subject matter.
This assurance statement is usually included in the CR report itself. The statement is often of the form that the subject matter is “fairly stated.” The statement usually also includes a high-level summary of methodology, and sometimes includes areas in which the responsible entity could show improvement. A formidable liability statement is the final piece of the assurance statement.
This liability statement points to the difference between assurance and certification. Assurance is characterised by a comparatively low transfer of liability to the assuror. If the subject matter proves, contrary to the assurance statement, to be misstated, the assuror is fairly well-protected from torts initiated by those who have relied on it.
Liability is roughly correlated with reputation. In other words, if a certification agency only had the degree of confidence implicit in assurance when it issued its certifications, they would probably lose their credibility. However, the correlation is more exacting in the business world than in the wider public domain. In the case of financial audit, the transfer of liability to the auditor is consistently beneath public expectations. Audit has a reputation as certification against fraud – but is not considered so by auditors or by the law. Ha! See Millichamp (2002:2). This disparity is known, in a rather smug and patrician and euphemistic sort of way, as the “expectation gap.” Humphrey et al. (1992:57) argue that the expectation gap allows the accountancy profession to “convey an impression of responding to public concern; to reaffirm its independent and selfless image; to assert the validity of its own perspectives on the nature of the audit function; and to direct questioning away from the existing audit system to the limits of proposed reforms and solutions for closing the expectations gap.” For empirical work on the expectation gap see e.g. Monroe and Woodliff (2009).
Indeed, the boundaries of consultancy, certification, and assurance are in practice often blurred. There is an iterative quality to assurance, such that the responsible entity is advised periodically what steps are necessary to acquire an assurance statement. KPMG comment, “Once we receive a reasonable draft of the client’s sustainability report we can check whether the identified issues are covered and whether the information on a material issue is balanced. This is usually the start of a lively debate with the client about what different parties may perceive to be material for their organization, which is more difficult to define if the client’s own stakeholder engagement processes are not fully developed” (AccountAbility 2007:9).
In this way, assurance may drive improvements in CR reporting and underlying CR policies. However, Big Four descriptions of assurance accentuate how their independence can generate credibility, not how it can drive organisational change.
This is our first indication of an orientation to the audit of financial statements. A brief history will help to explain. The link between audit and consultancy has been by far the most publicly contentious issue relating to auditor independence. In the late 1990s fierce criticism and a string of court cases persuaded all of the Big Five except Deloitte to sell or spin off their consultancy businesses. Deloitte also initially announced its intention to split into separate audit and consultancy firms. Following the collapse of Arthur Andersen (producing the Big Four from the Big Five) after its provision of dubious consultancy and audit services to Enron, a raft of tighter regulatory measures, notably the Sarbanes-Oxley Act 2002 in the US (“SOX”), seemed to take the problem of the relationship between audit and consultancy out of the Big Four’s hands. Deloitte thus elected to retain its consultancy business, which proved extremely profitable throughout the next decade. The other Big Four firms have quietly rebuilt their consultancy businesses. The issue remains a senstive one, however, and the Big Four seldom seek to thematise any complementarity of audit and consultancy.
But as Bendell (2005) argues, the link between CR consultancy and assurance is not so obviously problematic. Declining to assure a CR report does not lead to a dramatic loss of investor confidence, as is typical when an auditor refuses to sign off on a set of financial statements, or challenges a company’s “going concern” assumption. Similarly, “shopping around” for an assuror of CR reports is unlikely to make investors nervous in the same way switching auditors tends to, so ideas for organisatonal change can be drawn from a larger pool. Such advantages may outweigh the risk that assurors exaggerate the success of systems which, wearing their consultancy hats, they helped to design. See Beattie and Fernley (2003) for a literature review around auditor independence and the provision of non-audit services, and Cragg (2005:96-97) for examples of independence issues arising from consultancy in the context of CR report assurance and social audit.
The Deloitte web site offers a typical Big Four rationale for assurance: “As the importance in and reliance of [sic] these [CR] reports increases, there is a growing trend to add credibility to the information presented through assurance. The benefits include greater transparency, increased stakeholder confidence and enhanced regulatory compliance.”
The appeals to “greater transparency” and “increased stakeholder confidence” confirm that in Deloitte’s view, the point of assurance is credibility. “Enhanced regulatory compliance” whispers at organisational change, but it is an oblique phrase in need of some interpretation. Corporations in the UK are not legally obliged to undertake CR policies. The Companies Act 2006 requires that publicly listed companies include information in their annual report on “environmental matters,” “the company’s employees” and “social and community issues” (Section 417, Para 5). Assurance thus neither constitutes, nor falls under, any kind of state-mandated compliance regime. Listing “regulatory compliance” simpliciter as a benefit would make mandatory activities appear to depend on discretionary ones, and the main function of “enhanced” is to neutralise this connotation.
But there is also a ubiquitous expectation that CR will be increasingly legalised, and that reporting will be an early focus of this legalisation. For example, France has required publicly listed companies to publish annual environmental and social reports since 2001. A European Parliament resolution in 2007 recommended the revision of the Fourth Company Law Directive to include social and environmental reporting alongside financial reporting requirements. “Enhanced” thus also carries a sense of “ahead of the game” – organisations which assure their CR reports will find the transition easier when CR and CR reporting are inscribed in law. In this connection, “enhanced regulatory compliance” also imparts a sense of “enhanced standardisation”; that is, of compliance with widely-recognised standards like the G3, even though such guidelines are not regulatory in any straightforward sense.
That typo - a botched edit, actually - is exemplary of the kind of anxiety and confusion surrounding the purposes and priorities of CR reporting. It is likely that the phrase was originally “the reliance in and importance of these reports”; reliance connoting de facto market realities, importance with just a hint of idealism about it. The importance was deemed more important, but the editor left traces of his or her work.
Elsewhere Deloitte (2009:3) are confident enough to set a date on legalisation. “2015-2030 – Increasing legislation, regulation and tax policies force reactive organisations to adopt sustainable behaviour which now becomes a license to operate as unsustainable supply chains seem increasingly outdated. A few popular sustainable approaches and quality stamps emerge as standard, allowing benchmarking and greater consumer visibility. Increasing collaboration between non-competing organisations emerges as the main route to sustaining competitive advantage.”
From the Big Four’s perspective, responsibility for the economic, social and environmental impact of business is migrating inevitably from the public sector to the state sector, driven by ratcheting public expectations. Good CR policies, such as the assurance of CR reports, have their value in positioning businesses advantageously in this shift, and allowing them to shape a few of its specific characteristics.
Thursday, 31 January 2013
Corporate Responsibility Reporting Assurance (2)
First, a little caveat: some of this could be dated. At the time when I pulled most of this material together, I did a kind of close reading of "independence." I checked out Big Four’s web sites and other marketing materials; I examined the assurance and general ethics standards promulgated by the International Federation of Accountants (“IFAC”) and by the Institute of Chartered Accountants in England and Wales (“ICAEW”), the popular AA1000 standards developed by the non-profit organisation AccountAbility, the G3 standards developed by the non-profit Global Reporting Initiative, and some of the assurance methodology recommended by audit text books. I also tried to get a sense of the self-regulatory mechanisms of the accountancy profession. I did this by looking at the web sites of various entities, and corresponding with very nice representatives from IFAC and the Financial Reporting Councial (“FRC”) - though not, if I remember rightly, from the Big Four? - to further clarify this regulation architecture. This close reading exposed how the concept of “independence” is constructed in close relation with two others, “professionalism” and “stakeholders.” So I also engaged closely with primary sources which articulate these concepts. This was all about four years back though; a lot may have changed since then. If something has changed, or I'm wrong about something, I'd love to hear from you.
Second, a quick digression. It's a funny world, corporate responsibility. And corporate responsibility reporting is a funnier world inside it. The funniest little world is corporate responsibility reporting assurance.
Or perhaps it's corporate responsibility reporting awards-judging. It's that time of year again: CorporateRegister.com wants you to vote for your favourite CR report (AKA sustainability report or CSR report)! You have a chance of winning cash prizes if you vote! What's that? You don't have a favourite CR report? I'm sorry, I don't understand.
Perhaps those incentives are there because so few people will trouble themselves reading one, let alone two, let alone many CR reports. And even if you did read one, how are you supposed to say if you like it? We like the CR reports that are the most true. Which are they?
Yet a company's CR and CR reporting are really the only things about that company that matter to most sensible people.
There needs to be more journalistic mediation between places like CorporateRegister and members of the public. At the very least, there needs to be an accessible, one-stop-shop that summarises the assurance processes which have gone into each report.
CorporateRegister: you in particular, for your "credibility through assurance" category in particular, need to rejig your layout so that information about who the assuror was, if GRI criteria were used, etc. appears on the same page as you cast your vote. That allows for a quick comparison, and energetic voters can still do depth research if they need to (which one of our two tomorrows does Two Tomorrows really support? etc.).
Third, an introduction to one or two concepts from political sociology. (I didn't really need them to do this analysis; in fact, I think it would have been a lot stronger had I proceeded without formal methodology, and only that sense common to the humanities / liberal arts. But as it happens, I did use them, and at least the history of these concepts being applied is enriched (if only enriched with my bungling)).
It is difficult to invoke Habermas with a clear conscience in a blog post about anything other than Habermas. His core preoccupations undergo constant and nuanced revision throughout his ouevre. I've elected to take concepts from The Theory of Communicative Action, but their application here also points to successors in later and precursors in earlier works by Habermas. One point I'm going to make later on - that organisations seeking a “license to operate” from society are systemically hampered, in harvesting credibility, by the disparities between genuine sources of legitimacy in the socio-cultural sub-system and the representative institutions open to those organisations - recalls Legitimacy Crisis (1975). In characterising the accountancy profession’s structure of mixed orientation to success and to understanding as legal rationality, I'll be parallelling one core idea of Between Facts and Norms (1996), that law derives its legitimacy from networks of communicative power, and thereby expresses the tension between the claims of reason as concretely specified and their context-transcending idealizations (Habermas 1996:449). Furthermore, there are parts of The Theory of Communicative Action which I have only cursorily engaged with here. The concept of legal rationality constitutes abbreviated and speculative reconstruction of aspects of knowledge embodied in accountants’ everyday practices, whereas Habermas’s theory of reconstructive science provides a comprehensive framework within which the concept could be more rigorously linked to empirical fallibilistic enquiry.
Power and Laughlin (1999) also apply Habermas to the accounting profession, suggesting that “the nechnical neutrality of accounting practice is illusory and that accounting is a potentially colonizing force which threatens to ‘delinguistify’ the public realm” (132). To suggest a model of the entanglement of independence and professionalism, which can operate outside both concrete discursive connections and a sociology of the professions, I'm going to draw on categories developed by Habermas (1985), especially socially-integrated and systemically-integrated action settings. Habermas develops these to contest Max Weber’s “identification of instrumental reason with the rationalisation characteristic of modern life” (Power and Laughlin 1999:121).
Habermas’s analysis of modernity proposes two parallel processes of rationalisation. In the domain of instrumental-purposive action, action is oriented to success. Rationalisation here consists in the optimisation of success. Action can be optimally integrated by steering media, that is, non-linguistified communication media such as money and power. These steering media relieve the participants in complicated regimes of action of the burden of achieving linguistic consensus, while preserving and extending the integrity of their action networks. Each actor is steered according by the contours of incentives and disincentives which confront her, not motivated by her linguistically-attained intersubjective understanding. This is what is meant by “systemic integration,” contradistinguished from “social integration.” Since action in this domain is oriented to success, its systemic integration by steering media is considered non-pathological.
In the domain of communicative action (the “lifeworld”), however, action is oriented towards understanding. Rationalisation in this domain consists in the accumulation of intersubjective moral-practical understanding. This process is identical with the increasing generality of that understanding, which Habermas understands as the gradual uncoupling of the institutional, cultural and personality symbolic structures which together comprise the lifeworld. To make sense of this triptych, we need to consider that social integration consists in the reciprocity of socialisation (the internalisation of cultural values by the personality system) and social control (the internalisation of cultural values by institutions). As the lifeworld rationalises, and the three symbolic structures float apart from one-another, their interpenetration coming more and more to depend upon the interpretive accomplishments of actors, who reciprocally raise and redeem the validity claims inherent in their communicative practices. See Habermas (1985:146).
Socially-integrated action in this domain is non-pathological. But systemically-integrated action is associated with the distortion of communicative rationality. The tendency for this to occur is what is meant by “the internal colonisation of the lifeworld.” It is this tendency – and not rationalisation in either the dimension of purposive-instrumental action or of communicative action – which is the closest correlate to Weber’s understanding of rationalisation as the expansion of formal reason to ever more domains of social life.
Is that OK? Does that seem about right to you?
Now, in my view, the professional independence of auditors means that audit cannot be reduced to the internal colonisation of the lifeworld. In line with Habermas’s thesis that purposive-instrumental action remains anchored in communicative action (1985:196), I'm going to argue that the systems rationality embodied by auditor independence relies on the lifeworld resources of the accounting profession, including: a permanent regime of training and mentoring, a tradition of professional congeniality and discussion, a preoccupation with ethics, as well as a relatively homogeneous pool of cultural and ideological norms. Professional independence straddles both system and lifeworld. It contains a mixture of strategic and communicative action. Somewhere in the coming posts, I'll analyse this mixture, in its institutional specification in the accountancy profession, as that profession’s legal rationality.
Second, a quick digression. It's a funny world, corporate responsibility. And corporate responsibility reporting is a funnier world inside it. The funniest little world is corporate responsibility reporting assurance.
Or perhaps it's corporate responsibility reporting awards-judging. It's that time of year again: CorporateRegister.com wants you to vote for your favourite CR report (AKA sustainability report or CSR report)! You have a chance of winning cash prizes if you vote! What's that? You don't have a favourite CR report? I'm sorry, I don't understand.
Perhaps those incentives are there because so few people will trouble themselves reading one, let alone two, let alone many CR reports. And even if you did read one, how are you supposed to say if you like it? We like the CR reports that are the most true. Which are they?
Yet a company's CR and CR reporting are really the only things about that company that matter to most sensible people.
There needs to be more journalistic mediation between places like CorporateRegister and members of the public. At the very least, there needs to be an accessible, one-stop-shop that summarises the assurance processes which have gone into each report.
CorporateRegister: you in particular, for your "credibility through assurance" category in particular, need to rejig your layout so that information about who the assuror was, if GRI criteria were used, etc. appears on the same page as you cast your vote. That allows for a quick comparison, and energetic voters can still do depth research if they need to (which one of our two tomorrows does Two Tomorrows really support? etc.).
Third, an introduction to one or two concepts from political sociology. (I didn't really need them to do this analysis; in fact, I think it would have been a lot stronger had I proceeded without formal methodology, and only that sense common to the humanities / liberal arts. But as it happens, I did use them, and at least the history of these concepts being applied is enriched (if only enriched with my bungling)).
It is difficult to invoke Habermas with a clear conscience in a blog post about anything other than Habermas. His core preoccupations undergo constant and nuanced revision throughout his ouevre. I've elected to take concepts from The Theory of Communicative Action, but their application here also points to successors in later and precursors in earlier works by Habermas. One point I'm going to make later on - that organisations seeking a “license to operate” from society are systemically hampered, in harvesting credibility, by the disparities between genuine sources of legitimacy in the socio-cultural sub-system and the representative institutions open to those organisations - recalls Legitimacy Crisis (1975). In characterising the accountancy profession’s structure of mixed orientation to success and to understanding as legal rationality, I'll be parallelling one core idea of Between Facts and Norms (1996), that law derives its legitimacy from networks of communicative power, and thereby expresses the tension between the claims of reason as concretely specified and their context-transcending idealizations (Habermas 1996:449). Furthermore, there are parts of The Theory of Communicative Action which I have only cursorily engaged with here. The concept of legal rationality constitutes abbreviated and speculative reconstruction of aspects of knowledge embodied in accountants’ everyday practices, whereas Habermas’s theory of reconstructive science provides a comprehensive framework within which the concept could be more rigorously linked to empirical fallibilistic enquiry.
Power and Laughlin (1999) also apply Habermas to the accounting profession, suggesting that “the nechnical neutrality of accounting practice is illusory and that accounting is a potentially colonizing force which threatens to ‘delinguistify’ the public realm” (132). To suggest a model of the entanglement of independence and professionalism, which can operate outside both concrete discursive connections and a sociology of the professions, I'm going to draw on categories developed by Habermas (1985), especially socially-integrated and systemically-integrated action settings. Habermas develops these to contest Max Weber’s “identification of instrumental reason with the rationalisation characteristic of modern life” (Power and Laughlin 1999:121).
Habermas’s analysis of modernity proposes two parallel processes of rationalisation. In the domain of instrumental-purposive action, action is oriented to success. Rationalisation here consists in the optimisation of success. Action can be optimally integrated by steering media, that is, non-linguistified communication media such as money and power. These steering media relieve the participants in complicated regimes of action of the burden of achieving linguistic consensus, while preserving and extending the integrity of their action networks. Each actor is steered according by the contours of incentives and disincentives which confront her, not motivated by her linguistically-attained intersubjective understanding. This is what is meant by “systemic integration,” contradistinguished from “social integration.” Since action in this domain is oriented to success, its systemic integration by steering media is considered non-pathological.
In the domain of communicative action (the “lifeworld”), however, action is oriented towards understanding. Rationalisation in this domain consists in the accumulation of intersubjective moral-practical understanding. This process is identical with the increasing generality of that understanding, which Habermas understands as the gradual uncoupling of the institutional, cultural and personality symbolic structures which together comprise the lifeworld. To make sense of this triptych, we need to consider that social integration consists in the reciprocity of socialisation (the internalisation of cultural values by the personality system) and social control (the internalisation of cultural values by institutions). As the lifeworld rationalises, and the three symbolic structures float apart from one-another, their interpenetration coming more and more to depend upon the interpretive accomplishments of actors, who reciprocally raise and redeem the validity claims inherent in their communicative practices. See Habermas (1985:146).
Socially-integrated action in this domain is non-pathological. But systemically-integrated action is associated with the distortion of communicative rationality. The tendency for this to occur is what is meant by “the internal colonisation of the lifeworld.” It is this tendency – and not rationalisation in either the dimension of purposive-instrumental action or of communicative action – which is the closest correlate to Weber’s understanding of rationalisation as the expansion of formal reason to ever more domains of social life.
Is that OK? Does that seem about right to you?
Now, in my view, the professional independence of auditors means that audit cannot be reduced to the internal colonisation of the lifeworld. In line with Habermas’s thesis that purposive-instrumental action remains anchored in communicative action (1985:196), I'm going to argue that the systems rationality embodied by auditor independence relies on the lifeworld resources of the accounting profession, including: a permanent regime of training and mentoring, a tradition of professional congeniality and discussion, a preoccupation with ethics, as well as a relatively homogeneous pool of cultural and ideological norms. Professional independence straddles both system and lifeworld. It contains a mixture of strategic and communicative action. Somewhere in the coming posts, I'll analyse this mixture, in its institutional specification in the accountancy profession, as that profession’s legal rationality.
Corporate Responsibility Reporting Assurance (1)
Okay Fawks, in the next few posts I want to talk about the independent assurance services provided by the world’s largest professional services firms, PwC, Deloitte, KPMG and E&Y (“the Big Four”) on their clients’ Corporate Responsibility (“CR”) reports.
The Big Four’s core business is audit. All publicly listed companies are legally obliged to publish financial statements, informing shareholders and the general public of the company’s financial position. They are also legally obliged to have these financial statements verified by an external auditor. The Big Four perform this role for the world’s largest corporations. In the UK market for example the Big Four audit all of the FTSE100.
The Big Four’s reputation for independence stems from their auditing of financial statements. The governance structure which they rely upon to protect their independence is also oriented towards this activity.
However, to assure CR reports, a different type of independence is required. Unlike financial statements, CR reports try to address the needs of all stakeholders in a company. Instead of being limited to financially material information, CR reports aim to cover all the social and environmental issues which are important to these stakeholders.
The assurance of CR reports thus requires a type of independence resembling the liberal idea of state neutrality. The Big Four are required to arbitrate among a plurality of often contradictory demands. With only the independence inherited from the financial audit context, the Big Four regularly fail in this role. As a result, many stakeholders remain incredulous towards CR reports, and corporations themselves are confused about the levels of transparency they are achieving.
The Big Four should shift to “critical independence,” abandoning many claims to disinterestedness, and acknowledging the specific place from which they speak.
The Big Four’s core business is audit. All publicly listed companies are legally obliged to publish financial statements, informing shareholders and the general public of the company’s financial position. They are also legally obliged to have these financial statements verified by an external auditor. The Big Four perform this role for the world’s largest corporations. In the UK market for example the Big Four audit all of the FTSE100.
The Big Four’s reputation for independence stems from their auditing of financial statements. The governance structure which they rely upon to protect their independence is also oriented towards this activity.
However, to assure CR reports, a different type of independence is required. Unlike financial statements, CR reports try to address the needs of all stakeholders in a company. Instead of being limited to financially material information, CR reports aim to cover all the social and environmental issues which are important to these stakeholders.
The assurance of CR reports thus requires a type of independence resembling the liberal idea of state neutrality. The Big Four are required to arbitrate among a plurality of often contradictory demands. With only the independence inherited from the financial audit context, the Big Four regularly fail in this role. As a result, many stakeholders remain incredulous towards CR reports, and corporations themselves are confused about the levels of transparency they are achieving.
The Big Four should shift to “critical independence,” abandoning many claims to disinterestedness, and acknowledging the specific place from which they speak.
Monday, 17 December 2012
Guns - my alter (massive!) ego, Leary Buckarootown, weighs in!
Yup, it’s been a tragic few days ... as the media erupts in an apocalyptic display of outrage and hand-ringing at the senseless murder of 20 children and 6 adults by yet another mentally unhinged individual intent on creating as much havoc, distress and support for gun law reform as possible.
Whatever his warped motives, one thing is clear – he sought revenge on society and his actions were designed to leave a permanent mark on those who had in some way offended his twisted sensibilities.
Chances are we will never know what drove him to wish for the death of fellow citizens or how he came to the conclusion that children could in some way be anything other than innocent in the demons that were tormenting him.
Whether we like it or not, the issue of gun ownership is raising its ugly head, yet again as calls go out for the population to be disarmed. Before I begin the defence of the individual to own a firearm, I would like my readers to understand the very reason that American citizens maintain the right to bear arms.
It is for protection against the State and the right of self-defence.
Most Americans do not own guns to shoot children, gangster rappers or wild bears! They own them in the knowledge that if a deranged lunatic decides to invade your property to settle whatever mental health issues he has with you or society in general, he can quickly and permanently be subdued.
A pistol in the bedside table is standard in many American homes because that is how they choose to protect their nearest and dearest.
Whilst we in the UK debate the legalities of being open to prosecution for merely owning a baseball bat to fend off the drunken chavs breaking down the front door because you dared to criticise them for pissing in your garden, the average American knows that an armed society is a polite society.
Certainly, the ease at which a psychopath can obtain weapons is a concern, but lest we forget, Timothy McVee ended the lives of 168 innocent Americans, including children, with nothing more than fertiliser to form a bomb.
Religious zeal caused four demented bigots to fill rucksacs with chapatti flour and destroy the lives of 54 innocent human beings on the tube, yet calls for Mosques to be closed or chapattis to be banned are strangely silent. The issue is not with the weapon, but with the motivation. It’s like blaming spoons for obesity or petrol for reckless driving – illogical.
Those who cannot obtain guns will simply find other mechanisms to wreak havoc on the society they hate. From a transit van driven at crowds in Cardiff to a machete-wielding fruitloop entering a Birmingham nursery school, or a whooping American GI remotely sending an Afghan wedding party to their drone-inflicted deaths, the means are but a way to an end.
I don’t know about you dear reader, but I and many of my peers refuse to frequent areas after dark for fear of being robbed, beaten, stabbed or maimed by a new type of feral youth out of control on the ease at which they can inflict violence on an innocent public.
Not a day passes without one of us being beaten to death for “looking at someone a bit funny”. Further disarming that public will not result in crime falling, just more victims for the evil and the warped to prey upon.
Sadly, this is not the last massacre we will see because we have not cured the wish of the psychotically violent to inflict terror on others. Until we bridge the gap between the insane, the oppressed and the downright mad and bad, the banning of spoons or cricket bats in a built up area will serve no useful purpose other to facilitate yet more violence against the innocents.
UPDATE: Having had one or two slightly puzzled responses, I feel obliged to append the caveat: Alas, This Is A Parody! I thought the use of "hand-ringing," "rucksac," "mental health issues he has with you," and "the means are but a way to an end" should have made that abundantly clear ... my more po-faced response, which is not dogmatically "pro-gun control," can be read here. Oh dear, perhaps I'd better leave this sort of thing to Posie. (But then I can never be sure when she's being serious!)
Saturday, 15 December 2012
Guns
What should "the right to keep and bear arms" look like in modern America? You sometimes hear the glib suggestion that, because the government now has Stryker APCs and M1 Abrams tanks and nuclear submarines etc., citizens need these things too - y'know, scowling proudly on your front porch in your rusty-but-feisty Black Hawk, "Betsy."
This is usually intended as a reduction to absurdity: since citizens can't hope to resist contemporary military, the Second Amendment is more-or-less meaningless. Right? The debate then often drifts into a comparative statistical realm, where the anti-gun movement has a firm case, albeit a case pretty effectively countered with unsubstantiated contradiction. Here's Adam Gopnik in The New Yorker:
So is the Second Amendment really irrelevant, except as a thorny anachronism, a relict legislative tangle that we have to just cut through somehow? Could there be some way of giving America the equivalent of a Black Hawk on the front porch?
In short, if Americans have the right to "keep and bear arms," what should "arms" look like today?
Well, we all also know that military strength is more than just weaponry. Your weaponry is useless if you don't know how to use it. It's pointless if you don't know where to point it. Military strength is also supplies and other materiel, intelligence, infrastructure, doctrine, training, ideology, culture, experience, loyalty, morale, oversight, adaptability, mobilisation, deployment, reputation, procurement capacity, capacity to militarize emergent technologies and technological conjunctures, and numerous other interconnected dimensions of organisational capability. It is true now more than ever that there is no purely military realm independent from its civilian substrate.
Military strength is also relational in the sense that it depends on the degree and type of threats to itself and/or its objectives. Consider the existence of a well-regulated militia equipped with javelins and cowhide shields, and trained in fighting against similar forces. Of course, such a militia is eliminated if it loses its javelins and cowhide shields or various crucial organisational capabilities. But it is also eliminated -- practically eliminated, that is -- if the threats it faces evolve sufficiently. Such a militia effectively ceases to exist when its enemies drive around in Strykers carrying combat assault rifles etc. It becomes immaterial, negligible.
America is armed. But is it bearing arms?
The chief concern of the Second Amendment is a deterrence to tyrannical government, and the intersection of positive law with the natural law right of revolt. So what kind of civilian military counterweight ("militia"?) could exist, even in principle, to a potential USAF-backed tyranny by the US government? I don't know, but I have two strong hunches:
(1) Its protection overlaps with protecting other civil and political liberties which are not typically considered in connection with the rights to arms, in particular law concerning privacy, due process, habeas corpus and freedom of speech. In other words: military operations have changed such that their outcomes increasingly depend on the way they are embedded in contexts traditionally considered non-military, and a corollary of these shifts is a possible Second Amendment rationale for protecting activities traditionally considered "non-militia." I'm thinking, of course, of developments such as Title II Enhanced Surveillance Procedures and indefinite detention under NDAA. (At the same time, I should be careful of defaulting to controversies as they have already been delineated in other debates, simply because that requires less imagination). In short: intelligence is the core of any military operation, so the Second Amendment cannot be separate from issues around privacy.
(2) It couldn't just be about what lies outside the USAF; it would have to be about US citizens' broad participation in, and influence upon, the governance and operations of the USAF itself. The vast resources of the USAF shouldn't ever be dominated by a partisan interest bloc. Nor should it (this in the spirit of the famous Federalist No. 10, against faction in government) be dominated by a broad but non-universal consensus which can afford to ignore minority perspectives. In other words, the Second Amendment requires the broad access (though in what sense "access," I'm not sure) of the nation's citizenry to that which comprises its military strength, even those ingredients which can't be conveniently stashed in a drawer or safe or slipped into a shoulder-holster. Bearing arms is about access to truly democratic institutions, and it's about the kinds of positive social rights that enable true broad and diverse participation in the democratic processes.
Closely connected questions are of course, how should "tyrannical government" be interpreted in the context of privatization and outsourcing on a vast scale? What does outsourced tyranny look like? What does unbundled tyranny look like? How should tyranny, or its threat, be interpreted in the context of Halliburton and other long-term, multi-administration contracting relationships? (Compare Hamilton, in Federalist No. 26, pondering how "Schemes to subvert the liberties of a great community require time to mature them for execution").
I don't have a lot of answers. But should the unlikely occur, and the recent horror in Connecticut, or the next few in-principle-foreseeable similar horrors, transform the pipe-dream of gun law reform into a serious political reality, then these questions need to be at the forefront of the debate.
I'll leave you with Jeremy Scahill's ever-so-slightly sensational account of the atmosphere in certain sections of American society the last time a Democrat president was elected for a second term, which gives one or two hints about the kind of revolutionary militia the USA might realistically be expected to produce, what might regulate such a militia, and the kind of freedom they might be prepared to defend:
PS: Of course, my two hunches up there are fairly Living Constitutionalist in spirit, with a dash of Originalism. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," them's the rules. Hmm. You know, that could also be read as a conditional clause. "So long as a well regulated militia is necessary to the security of a free state, then the right of the people to keep and bear arms shouldn't be infringed" ...
UPDATE: They thought of that. The Supreme Court opinion in District of Columbia et al. v. Heller [2008]:
Here's part of the Supreme Court opinion in District of Columbia et al. v. Heller [2008]:
PPPS: My spellcheck suggests "hallucination" for "Halliburton"! Bliss!
PPPPS: Just for the heck of it, here's a TLDR copy-paste of Hamilton's Federalist No. 29, concerning militias. I haven't checked it out properly yet, he probably thinks Occupy Oakland was one or something. Personally I never trust these pseudonymy types. What are they, zany?
This is usually intended as a reduction to absurdity: since citizens can't hope to resist contemporary military, the Second Amendment is more-or-less meaningless. Right? The debate then often drifts into a comparative statistical realm, where the anti-gun movement has a firm case, albeit a case pretty effectively countered with unsubstantiated contradiction. Here's Adam Gopnik in The New Yorker:
After the Aurora killings, I did a few debates with advocates for the child-killing lobby—sorry, the gun lobby—and, without exception and with a mad vehemence, they told the same old lies: it doesn’t happen here more often than elsewhere (yes, it does); more people are protected by guns than killed by them (no, they aren’t—that’s a flat-out fabrication); guns don’t kill people, people do; and all the other perverted lies [...]If you want to get into the deets, the Harvard Injury Control Center is a great gateway. A gun-toting society is a more murderous one: that correlation is pretty clear across high-income nations. You can "guard with jealous attention the public liberty" (Patrick Henry, 1788) in the abstract, but people - children - are indeed dying today because of it.
So is the Second Amendment really irrelevant, except as a thorny anachronism, a relict legislative tangle that we have to just cut through somehow? Could there be some way of giving America the equivalent of a Black Hawk on the front porch?
In short, if Americans have the right to "keep and bear arms," what should "arms" look like today?
Well, we all also know that military strength is more than just weaponry. Your weaponry is useless if you don't know how to use it. It's pointless if you don't know where to point it. Military strength is also supplies and other materiel, intelligence, infrastructure, doctrine, training, ideology, culture, experience, loyalty, morale, oversight, adaptability, mobilisation, deployment, reputation, procurement capacity, capacity to militarize emergent technologies and technological conjunctures, and numerous other interconnected dimensions of organisational capability. It is true now more than ever that there is no purely military realm independent from its civilian substrate.
Military strength is also relational in the sense that it depends on the degree and type of threats to itself and/or its objectives. Consider the existence of a well-regulated militia equipped with javelins and cowhide shields, and trained in fighting against similar forces. Of course, such a militia is eliminated if it loses its javelins and cowhide shields or various crucial organisational capabilities. But it is also eliminated -- practically eliminated, that is -- if the threats it faces evolve sufficiently. Such a militia effectively ceases to exist when its enemies drive around in Strykers carrying combat assault rifles etc. It becomes immaterial, negligible.
America is armed. But is it bearing arms?
The chief concern of the Second Amendment is a deterrence to tyrannical government, and the intersection of positive law with the natural law right of revolt. So what kind of civilian military counterweight ("militia"?) could exist, even in principle, to a potential USAF-backed tyranny by the US government? I don't know, but I have two strong hunches:
(1) Its protection overlaps with protecting other civil and political liberties which are not typically considered in connection with the rights to arms, in particular law concerning privacy, due process, habeas corpus and freedom of speech. In other words: military operations have changed such that their outcomes increasingly depend on the way they are embedded in contexts traditionally considered non-military, and a corollary of these shifts is a possible Second Amendment rationale for protecting activities traditionally considered "non-militia." I'm thinking, of course, of developments such as Title II Enhanced Surveillance Procedures and indefinite detention under NDAA. (At the same time, I should be careful of defaulting to controversies as they have already been delineated in other debates, simply because that requires less imagination). In short: intelligence is the core of any military operation, so the Second Amendment cannot be separate from issues around privacy.
(2) It couldn't just be about what lies outside the USAF; it would have to be about US citizens' broad participation in, and influence upon, the governance and operations of the USAF itself. The vast resources of the USAF shouldn't ever be dominated by a partisan interest bloc. Nor should it (this in the spirit of the famous Federalist No. 10, against faction in government) be dominated by a broad but non-universal consensus which can afford to ignore minority perspectives. In other words, the Second Amendment requires the broad access (though in what sense "access," I'm not sure) of the nation's citizenry to that which comprises its military strength, even those ingredients which can't be conveniently stashed in a drawer or safe or slipped into a shoulder-holster. Bearing arms is about access to truly democratic institutions, and it's about the kinds of positive social rights that enable true broad and diverse participation in the democratic processes.
Closely connected questions are of course, how should "tyrannical government" be interpreted in the context of privatization and outsourcing on a vast scale? What does outsourced tyranny look like? What does unbundled tyranny look like? How should tyranny, or its threat, be interpreted in the context of Halliburton and other long-term, multi-administration contracting relationships? (Compare Hamilton, in Federalist No. 26, pondering how "Schemes to subvert the liberties of a great community require time to mature them for execution").
I don't have a lot of answers. But should the unlikely occur, and the recent horror in Connecticut, or the next few in-principle-foreseeable similar horrors, transform the pipe-dream of gun law reform into a serious political reality, then these questions need to be at the forefront of the debate.
I'll leave you with Jeremy Scahill's ever-so-slightly sensational account of the atmosphere in certain sections of American society the last time a Democrat president was elected for a second term, which gives one or two hints about the kind of revolutionary militia the USA might realistically be expected to produce, what might regulate such a militia, and the kind of freedom they might be prepared to defend:
In November 1996 - the month Clinton crushed Bob Dole and won reelection - the main organ of the theoconservative movement, Richard Neuhaus's journal First Things, published a "symposium" titled "The End of Democracy?" which bluntly questioned "whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." [...] A series of essays raised the prospect of a major confrontation between the church and the "regime," at times seeming to predict a civil-war scenario or Christian insurrection against the government, exploring possibilities "ranging from noncompliance to resistance to civil disobedience to morally justified revolution." Erik Prince's close friend, political collaborator, and beneficiary Chuck Colson authored one of the five major essays of the issue, as did extremist Judge Robert Bork, whom Reagan had tried unsuccessfully to appoint to the Supreme Court in 1987. [...] "Americans are not accustomed to speaking of a regime. Regimes are what other nations have," asserted the symposium's unsigned introduction. "This symposium asks whether we may be deceiving ourselves and, if we are, what are the implications of that self-deception. By the word 'regime' we mean the actual, existing system of government. The question that is the title of this symposium is in no way hyperbolic. The subject before us is the end of democracy." It declared, "The government of the United States of America no longer governs by the consent of the governed. . . . What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people." The editorial quoted Supreme Court Justice Antonin Scalia saying, "A Christian should not support a government that suppresses the faith or one that sanctions the taking of an innocent human life." [...] Colson's essay was titled "Kingdoms in Conflict": [...] "[E]vents in America may have reached the point where the only political action believers can take is some kind of direct, extra-political confrontation of the judicially controlled regime," Colson wrote, adding that a "showdown between church and state may be inevitable. This is not something for which Christians should hope. But it is something for which they need to prepare." He asserted, "[A] 'social contract' that included biblical believers and Enlightenment rationalists was the basis of the founding of the United States. . . . If the terms of our contract have in fact been broken, Christian citizens may be compelled to force the government to return to its original understanding. . . . The writings of Thomas Jefferson, who spoke openly of the necessity of revolution, could also be called upon for support." [...] Colson stopped short of calling for an open rebellion, but he clearly viewed that as a distinct possibility/necessity in the near future, saying, "with fear and trembling, I have begun to believe that, however Christians in America gather to reach their consensus, we are fast approaching this point."
* * *
PS: Of course, my two hunches up there are fairly Living Constitutionalist in spirit, with a dash of Originalism. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," them's the rules. Hmm. You know, that could also be read as a conditional clause. "So long as a well regulated militia is necessary to the security of a free state, then the right of the people to keep and bear arms shouldn't be infringed" ...
UPDATE: They thought of that. The Supreme Court opinion in District of Columbia et al. v. Heller [2008]:
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be re-phrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”PPS: There are Second Amendment concerns other than tyrannical government: to do with hunting, quelling insurrection, the relationships among states, guarding against foreign invasion, etc.
Here's part of the Supreme Court opinion in District of Columbia et al. v. Heller [2008]:
It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.The Framers were suspicious of a standing army, even those who broadly supported making provision for one. So the right to keep and bear arms wasn't just or even chiefly a counterweight to official military power, so much as a hopeful restraint upon its emergence: a provision to mitigate the need for a standing army - which for the Framers would probably have implied proto-PMFs like Blacke Death Water and Thrice Canopie, BTW - through reliance on, in George Washington's exasperated language, "Men just dragged from the tender Scenes of domestick life" (1776). But we are where we are.
PPPS: My spellcheck suggests "hallucination" for "Halliburton"! Bliss!
PPPPS: Just for the heck of it, here's a TLDR copy-paste of Hamilton's Federalist No. 29, concerning militias. I haven't checked it out properly yet, he probably thinks Occupy Oakland was one or something. Personally I never trust these pseudonymy types. What are they, zany?
To the People of the State of New York: THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment? By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist." Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee. There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia. In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes "Gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster. A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths? If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs. In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy. PUBLIUS.PPPPPS: See Charlie Brooker on coverage of the school massacre in Winnenden in 2009.
Tuesday, 4 December 2012
TLDR BBC
Incredibly boring & obvious letter to BBC World Have Your Say!!! YAAAA (crying) WWWWNNNNN!!!!
Dear BBC,
I watched several hours of your US election coverage. I thought it generally excellent, with Dimbleby superb as ever. However I was disappointed not to hear any mention of the third party candidates, especially Stein and Johnson. While no one disputes this was a two horse race, there are plenty of reasons to bring them up:
(1) In a race so tight, third party voting patterns could have had a bearing on the outcome.
(2) Regardless of any direct bearing, votes for third parties can help us form an impression of why a state or county is voting the way that it is. (Of course, making distinctions within the third party vote category would be crucial: the catch-all category "other" tells us very little).
(3) A bit of variety! There were plenty of long stretches where nothing was happening, nor was likely to happen. These shouldn't be exclusively used to reiterate the major themes. Some viewers are dipping in and out, but the lucky ones are in for the long haul. (I lost count of the number of times I heard the phrase, "No surprises there." SO SURPRISE ME).
(4) The BBC can play a particularly strong role in interpreting the US election for an international audience. For a viewer more familiar with UK politics, for example, it is tempting to make lazy and misleading identifications between the GOP and the Tories, and the Dems and Labour respectively. Talking about third parties is a useful way into a more nuanced and contextualised view of the American political landscape (particularly this time round, when the narrative of voters disliking both options was so strong).
(5) Likewise, the BBC can play a particularly strong role in locating the US election within an international context, and its issues within as broad as possible a spectrum of political opinion, geographically and historically. If some mainstream feature of European political life would appear radical or fringe in the USA, or vice-versa, I'd like that to be teased out. It makes your coverage more relevant, interesting and true.
(6) Even if third parties get little or no discussion, I would count it a valuable service to have the 1% or so of "other" votes further broken down on your infographics. (Perhaps this would be prohibitively administratively complex -- but it's certainly worth investigating, if you haven't already. Perhaps it would be possible on the BBC web site, if it isn't possible on the telly).
(7) Someone close to me who has dual US/UK citizenship, and had just voted for Stein by absentee ballot was similarly dismayed. Third party voters often make the morally difficult decision of declining a tactical vote, on the basis that a vote of conscience may raise awareness, influence debate and help to shape the political climate. But it is less likely to do this if it is ignored by organisations like the BBC.
It was of course not an omission unique to the BBC: throughout election night, and even today, the day after, it is extremely hard to find any discussion whatsoever of third parties. I write to you only because my expectations of you are a little higher.
Kind regards,
Lara Buckerton
Dear BBC,
I watched several hours of your US election coverage. I thought it generally excellent, with Dimbleby superb as ever. However I was disappointed not to hear any mention of the third party candidates, especially Stein and Johnson. While no one disputes this was a two horse race, there are plenty of reasons to bring them up:
(1) In a race so tight, third party voting patterns could have had a bearing on the outcome.
(2) Regardless of any direct bearing, votes for third parties can help us form an impression of why a state or county is voting the way that it is. (Of course, making distinctions within the third party vote category would be crucial: the catch-all category "other" tells us very little).
(3) A bit of variety! There were plenty of long stretches where nothing was happening, nor was likely to happen. These shouldn't be exclusively used to reiterate the major themes. Some viewers are dipping in and out, but the lucky ones are in for the long haul. (I lost count of the number of times I heard the phrase, "No surprises there." SO SURPRISE ME).
(4) The BBC can play a particularly strong role in interpreting the US election for an international audience. For a viewer more familiar with UK politics, for example, it is tempting to make lazy and misleading identifications between the GOP and the Tories, and the Dems and Labour respectively. Talking about third parties is a useful way into a more nuanced and contextualised view of the American political landscape (particularly this time round, when the narrative of voters disliking both options was so strong).
(5) Likewise, the BBC can play a particularly strong role in locating the US election within an international context, and its issues within as broad as possible a spectrum of political opinion, geographically and historically. If some mainstream feature of European political life would appear radical or fringe in the USA, or vice-versa, I'd like that to be teased out. It makes your coverage more relevant, interesting and true.
(6) Even if third parties get little or no discussion, I would count it a valuable service to have the 1% or so of "other" votes further broken down on your infographics. (Perhaps this would be prohibitively administratively complex -- but it's certainly worth investigating, if you haven't already. Perhaps it would be possible on the BBC web site, if it isn't possible on the telly).
(7) Someone close to me who has dual US/UK citizenship, and had just voted for Stein by absentee ballot was similarly dismayed. Third party voters often make the morally difficult decision of declining a tactical vote, on the basis that a vote of conscience may raise awareness, influence debate and help to shape the political climate. But it is less likely to do this if it is ignored by organisations like the BBC.
It was of course not an omission unique to the BBC: throughout election night, and even today, the day after, it is extremely hard to find any discussion whatsoever of third parties. I write to you only because my expectations of you are a little higher.
Kind regards,
Lara Buckerton
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