Reflexive Law: The New Legal System Driving Sustainable Development

Every society in history has been hinged on compatible systems of social structure, economics and politics. And, every unique society is regulated by a compatible legal system that settles all disputes between its citizens. In the Western world and especially in America, this is revered as the “Rule of Law”.

On August 26, 2014 the New York Times blasted out the head­line, Obama Pur­suing Cli­mate Accord in Lieu of Treaty. In short, Obama was to use Exec­u­tive Orders to entangle the U.S. in a global “treaty” on cli­mate change, without con­sulting the U.S. Senate. How­ever, the Con­sti­tu­tion requires the Senate to vote on all treaties and the bar is high: It takes a two-third vote to approve.

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

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

Obama’s prin­cipal adviser and “nego­tiator” on this so-called cli­mate accord was John Podesta, and this whole treaty-by-executive-order debacle can be laid squarely at his feet. Until just recently, Podesta was a member of the Tri­lat­eral Com­mis­sion. He was Bill Clinton’s chief-of-staff in the 1990s and the orig­inal insti­gator of Exec­u­tive Branch policy of using Exec­u­tive Orders to bypass Con­gress on cer­tain issues. Clinton, also a Tri­lat­eral member, cre­ated many such EO’s to side-step Con­gress, and Con­gress unfor­tu­nately let him get away with it.

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

The NYT article stated,

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

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

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

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

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

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

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

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

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

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

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

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

Greening NAFTA then spelled out exactly what Reflexive Law entails:

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

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

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

The Greening NAFTA authors were very blunt about this:

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

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

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

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

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

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

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

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

The NYT elab­o­rated further:

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

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

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

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

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

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

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

Foot­notes:

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