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66Business & SocietyHahn and Weidtmann © 2011 SAGE Publications

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Business & Society 2016,Vol. 55(1) 90–129 © The Author(s) 2012 Reprints and permissions:

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Transnational Governance, Deliberative Democracy, and the Legitimacy of ISO 26000: Analyzing the Case of a Global Multistakeholder Process

Analyzing the Case of a Global Multistakeholder Process Rüdiger Hahn 1 and Christian Weidtmann 2 Abstract

Rüdiger Hahn 1 and Christian Weidtmann 2

Abstract Globalization arguably generated a governance gap that is being filled by transnational rule-making involving private actors among others.The demo- cratic legitimacy of such new forms of governance beyond nation states is sometimes questioned. Apart from nation-centered democracies, such gov- ernance cannot build, for example, on representation and voting procedures to convey legitimacy to the generated rules. Instead, alternative elements of democracy such as deliberation and inclusion require discussion to assess new instruments of governance.The recently published standard ISO 26000 is an interesting example of transnational governance. ISO 26000 was devel- oped in a lengthy multiorganizational process for the purpose of giving guid- ance on the social responsibility of organizations. By assessing the specific case of ISO 26000, this study sheds light on the question of how legitimacy beyond nation-state democracy is ensured or constricted. Centering on the idea of deliberate democracy and democratic legitimacy, the study offers in-depth insights on the normative legitimacy of the development process of

1 Universität Kassel, Kassel, Germany

2 Heinrich-Heine-Universität Düsseldorf, Düsseldorf, Germany

Corresponding Author:

Rüdiger Hahn, Universität Hohenheim, Faculty of Business, Economics and Social Sciences, 70599 Stuttgart, Germany. Email: ruediger.hahn@uni-hohenheim.de

The article was accepted during the editorship of Duane Windsor.

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ISO 26000. Positioned on the interface of business studies and public policy, this article contributes to the academic literature on transnational gover- nance and on the role of multistakeholder processes in shaping the role of business in society.

Keywords standardization, transnational governance, organizational responsibility, ISO 26000, legitimacy, deliberative democracy

Ongoing globalization tendencies are arguably connected with a decreasing regulative power of nation states and a growing influence of (multinational) corporations and different interest groups (e.g., Beck, 2005; Habermas, 2001; Hurrelmann, Schneider, & Steffek, 2007; Wettstein, 2010). Politics is no lon- ger tied exclusively to national governments and state actors. At the same time, private actors and especially private (multinational) enterprises are called to take over responsibilities and leverage their resources for societal issues as well as to actively engage in shaping the rules of doing business (e.g., Matten & Crane, 2005; Scherer & Palazzo, 2007). However, a critical mindset toward private enterprises and their influence in society often pre- vails (Palazzo & Scherer, 2006). Moreover, related concepts such as corpo- rate responsibility so far seem to be elusive and crudely defined at best (Dahlsrud, 2008) and measures pursued under the notion of corporate respon- sibility vary widely. Against this background, in 2001 the International Organization for

Standardization (ISO) set out to draft a unilateral standard on social responsi- bility (SR) to provide a common and internationally agreed characterization of organizational responsibilities (ISO, 2009c). The new guideline ISO 26000

sets out to encourage “every organization

sible by using this International Standard.” Furthermore, it aims to offer “ways to integrate socially responsible behavior into the organization” (ISO, 2010e, p. vi). To facilitate SR, it offers guidance on the scope of SR for various types of organizations. As a noncertifiable, voluntary guidance document it provides best-practices examples and possible courses of actions on the implementation of responsible management practices of various kinds of organizations. (Hahn 2012a, 2012b) However, given the above noted decreasing regulative power of nation states coupled with the growing influence of private actors some scholars foresee a governance gap (Quack, 2010). This gap is increasingly being filled

to become more socially respon-

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by transnational rule-making and institution-building as the number and pro- liferation of different kinds of standards demonstrates (Gilbert, Rasche, & Waddock, 2011). Such standards are often regarded as new governing mecha- nisms involving private, civil society, and state actors and they play an important role in international business relations to overcome the institutional barriers of single nation states (Palazzo & Scherer, 2006; Wieland, 2007). Other than laws and regulations, the resulting norms and guidance documents are usually voluntary in use, not legally binding, and not enforceable (Fransen & Kolk, 2007). Many scholars share a concern that new modes of governance do not always sit easily within traditional conceptions of (democratic) legiti- macy and accountability (Klijn & Skelcher, 2007; Quack, 2010; Sørensen & Torfing, 2005; Zürn, 2004). Some even suggest that there might be a severe mismatch between new forms of governance on one hand and traditional representative institutions on the other (Skelcher, 2007). Such critical views point to the managerial relevance of the present topic: Organizations (and especially private businesses) are increasingly expected to actively partici- pate in shaping the rules of society. However, it is sometimes feared that transnational governance might threaten traditional representative democ- racy since it would undermine the distinction between state and society (e.g., Sørensen & Torfing, 2007). Therefore, the development process of ISO

26000 proves to be an interesting object of study since it not only deals with

an intensely debated field in international business (namely, the SR of orga-

nizations). Its mode of finding consensus in a multiorganizational, multi- stakeholder process is particularly suitable for a legitimacy assessment in light of the previously highlighted issues of transnational governance.

Since traditional elements conveying legitimacy (such as elections, demo- cratic representations, and public control) do not apply to the novel elements of governance in question, new ways of establishing democratic procedures granting legitimacy are being discussed. Within this context, this study reverts to the concept of deliberative democracy (Dryzek, 2000, 2001; Habermas, 1994, 1996, 2003) that focuses on open and inclusive deliberation instead of democratic representation and elections. Based on this thinking, the general conditions as well as the open and more subtle elements of delib- eration in the development process of ISO 26000 are analyzed in this article. The aim is to shed light on the question of how legitimacy beyond nation- state democracy is ensured or constricted. The analysis of the unique ISO

26000 development process thus contributes to the scholarly conversation on

transnational governance and on the standardization of SR. It provides insights on the prospects and limitations of using (and analyzing) elements of deliberative democracy and normative legitimacy for standardization

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processes on the intersection of political and managerial science. Castka and Balzarova (2008a, p. 303) claim that the extensive multistakeholder discourse leading to the development of ISO 26000 resulted in “the most legitimate CSR ‘document’” currently available. However, they do not give further rea- son on how legitimacy comes into place and why ISO 26000 should be regarded as a legitimate document. This article distinguishes input legiti- macy, throughput legitimacy, and output legitimacy (Dingwerth, 2007; Quack, 2010; Scharpf, 1997) to pursue three main questions: (a) “How legiti- mate is the participation of various societal players in the development pro- cess of ISO 26000?” (i.e., input legitimacy). (b) “How legitimate is the design of the development process?” (i.e., throughput legitimacy). The third ques- tion dealing with output legitimacy, (c) “Is the outcome of the development process suitable to serve the functions for which it was set up?” (i.e., output legitimacy), can only be answered partly and preliminarily for reasons dis- cussed separately below. Following this introduction, the remainder of this article is structured into four sections. Since aspects of normative legitimacy have so far mainly been covered in political science, the article will commence in the first section by introducing ISO 26000 as an element of transnational governance in the realm of international management and business research. The single case study research design is then justified. The second section begins by sketch- ing the connections and differences between empirical legitimacy (which has intensively been used within organizational science so far) and normative legitimacy. This outline of different legitimacy aspects is used as a starting point for the theoretical underpinnings of normative legitimacy. The concept of deliberative democracy is then explored and the different dimensions of legitimacy are itemized along different criteria that will be used for the sub- sequent analysis. Based on these insights, the centerpiece of this article is an in-depth analysis of the development process leading to the publication of ISO 26000 in Section 3. Finally, a conclusion is reached in the final section.

ISO 26000 and Transnational Governance:

Background and Research Approach

This article aims to convey aspects of normative legitimacy into the realm of management and organizational research and to test this conceptual founda- tion in the context of international business relations. This section establishes the basis for this effort by providing a brief introduction of the ISO standard as a key element of transnational governance before outlining the validity of a single case study as the main research method for the study.

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Research Background

The ISO 26000’s lengthy and intensive development process comprising several stages of drafting and consensus-finding among different groups of society can be regarded as a prominent example of transnational governance in a field that has seen much discussion and little consensus so far (Crane, Matten, et al., 2008). Former research in managerial and in political science has dealt with adjacent issues within the realm of transnational governance. A robust stream of research focuses on assessing the functionality and effec- tiveness of decentralized and nonbinding modes of self- or soft regulation on the level of single actors, industries, or technologies by means of conceptual and empirical research (e.g., Fransen & Kolk, 2007; King & Lennox, 2000; Koutalakis, Buzogany, & Börzel, 2010; Lyon & Maxwell, 2001). In a global business context, the ISO and its numerous national standardization organi- zations can be characterized as the most important institution(s) for volun- tary technical and nontechnical standards. Thus it is not surprising that different ISO standards have gained extensive recognition within managerial research (e.g., Beck & Walgenbach, 2005; King, Lennox, & Teerlak, 2005; Tamm Hallström, 2004; Terlaak, 2007). Börzel and Risse (2010) indicate that various forms of transnational governance can indeed potentially replace hierarchical governance. However,

like governments, whose coercive capacity is reinforced by their

legitimacy, non-state market driven systems require legitimacy to jus-

Unlike sovereign states, which by defini-

tion possess legitimate authority,

must actively achieve “political legitimacy.” (Bernstein & Cashore, 2007, p. 351)

non-state market driven systems

tify policy development

This article specifically aims at fostering the understanding of the (potential) legitimacy of such forms of international standardization on a normative level. To achieve this goal, the specific case of ISO 26000 is discussed. Such aspects of legitimacy are indeed an intensely discussed field in con- temporary research (see Ansell, 2008; Quack, 2010). Wolf (2006), Risse (2006), or Bernstein and Cashore (2007), for example, explored aspects of legitimacy within transnational governance with a distinct focus on political science. Other than the present study, however, previous scholarship con- centrates on deriving an initial analytical framework rooted in a political science background. Empirical research on different transnational gover- nance has emerged only recently so that Meidinger (2008) as well as

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Sundström, Furusten, and Soneryd (2010) still identify a shortage of empiri- cal studies on participation and legitimacy. The present article complements this stream of research by means of an in-depth analysis based on a single case study building on concepts from different scholarly disciplines. It puts a special emphasis on political science, social philosophy, and jurisprudence by applying these insights to the field of transnational governance and inter- national business.

Object of Study, Method, and Data

For the ISO, the development of ISO 26000 was a unique approach. Their former standardization efforts up to then did not build on the insights and input of such a heterogeneous group of participants including experts from outside the ISO system. With regard to ISO’s worldwide influence and per- vasiveness, this process can be positioned as a critical case on the interface between international standardization and transnational governance. As such, it qualifies as a holistic single case study (see Sigglekow, 2007; Yin, 2009) offering a rich analysis of the legitimacy of the development process. Eisenhardt and Graebner (2007) propose using multiple methods of data collection by multiple investigators. As described below, a variety of data sources has been employed to analyze the lengthy development process of ISO 26000. During the analysis, the authors found that current theories of legitimacy used in managerial and organizational sciences were not suitable to assess the increasingly important phenomena of transnational governance in the business sphere. Thus this study focuses on the development of ISO 26000 as a distinct and so far unique process within transnational standardization. It is anchored in an interdisciplinary realm of organizational and political science. By focusing on aspects of normative legitimacy, this article supple- ments studies within organizational science which so far mainly used neo- institutional theory to discuss the proliferation of different ISO standards (see Beck & Walgenbach, 2005; King et al., 2005; Tamm Hallström, 2004). The data for the empirical findings were derived from the extensive material on the development process provided by the ISO. At the time when ISO 26000 was published in November 2010, these data included more than 1,600 documents accessible via the online ISO “Livelink” area (http://www .iso.org/wgsr). This material comprised, for instance, various drafts of ISO 26000, minutes of the working group meetings, working documents, resolu- tions, comments, and results of ballots. These documents have been inde- pendently screened and analyzed by both authors. The data is complemented

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by narrations of experts who participated in the development process. Additionally, surveys conducted by independent researchers and by ISO itself were also included in the analysis.

Theoretical Context of Legitimacy

Before applying the research design introduced above to the empirical data of the ISO 26000 development process, the following section presents the various aspects of legitimacy as the underlying theoretical construct of this study. Initially, a general distinction is made between empirical legitimacy (focusing on the actual acceptance of social rules, organizations, or struc- tures) and normative legitimacy (referring to the question under which con- ditions such rules, organizations, or structures can be perceived as legitimate). Then, building on the concept of deliberative democracy, the notion of nor- mative legitimacy is more concretely examined by categorizing it into an input, a throughput, and an output dimension to allow for a better itemization for this and potentially also for following empirical case studies.

Empirical and Normative Legitimacy

The exact notion of legitimacy varies by scientific discipline, and depend- ing on the object of investigation, research objective or otherwise (Johnson, Ridgeway, & Dowd, 2006; Kumar & Das, 2007). When referring in par- ticular to organizational and political science, a first and common distinc- tion can be made between empirical (or sociological) legitimacy focusing on the actual acceptance of social rules, organizations, or structures and normative legitimacy, which refers to the question under which conditions such rules, organizations, or structures can be perceived as legitimate (Dingwerth, 2007). The notion of empirical (or sociological) legitimacy is often used in orga- nizational science. In his seminal article, for example, Suchman (1995, p. 574) framed it as “a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions.” In her interdisciplinary work between political and organizational science, Quack (2008, p. 8) simi- larly described it as “people’s perceptions of the rightfulness and appropri- ateness of authority for their acceptance and support for political and social order.” In sum, empirical legitimacy can thus be understood as “generalized perception of social acceptance” (Vergne, 2011, p. 484) placing the factual acceptance in the middle of thinking (Dingwerth, 2007). Without such

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socially assigned legitimacy, an organization’s ability to achieve its goals might be considerably constricted. According to these terms, legitimacy is the empirical outcome of actual acceptance within society which is large enough to ensure the survival of the legitimacy seeking institution or organization. Normative legitimacy, however, asks for the reasons why social rules, organizations, or structures can be perceived as legitimate. In past scholar- ship, normative legitimacy has been intensively covered within political sci- ence in references, for example, to processes and procedures that constitute certain (political) rules and structures. Dingwerth (2007) consequently also terms the main aspects as democratic legitimacy and thus concentrates on democratic criteria of inclusiveness, transparency, and equality, which also play a central role in this analysis. Institutions that are perceived to hold nor- mative legitimacy are those with a widely accepted mandate that has been rightfully imposed (Quack, 2010). Therefore, the normative question of acceptability and how it can be achieved from a procedural perspective takes precedence. In short, empirical legitimacy focuses on the acceptance of a governing instrument by actors, whereas normative legitimacy addresses the legitimacy principles in developing and possibly enforcing these instruments or as Dingwerth (2007, p. 15) phrases, “When do people have good reason to accept decisions as rightful?” Despite the fact that they are usually discussed independently, both concepts are deeply connected: Acceptance in empirical legitimacy can relate to normative principles and such principles that are brought forward in philosophical or political beliefs can influence empirical legitimacy beliefs. By focusing on normative legitimacy, the authors aim to complement the perspective of empirical (or social) legitimacy that often pre- vailed in previous organizational studies and business research (e.g. Vergne, 2011). As stated in the introduction, the notion of normative legitimacy within transnational governance is of growing relevance in international management. This study focuses this view and sets the stage for consecutive studies of the ISO 26000’s empirical legitimacy, which can only be assessed after the standard has been in use for some time.

Instrumental and Normative Perspectives

When turning to normative legitimacy (i.e., focusing on the acceptability of governance processes), an instrumental as well as a normative perspective needs to be distinguished. Normative legitimacy of nongovernmental insti- tutions is receiving growing attention due to the indicated shift in attention from national governments toward institutions of transnational governance

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imposing worldwide standards or rules (Ansell, 2008; Quack, 2010). Yet institutions within the sphere of transnational governance usually have no legally binding or implementing power similar to those of governmental rule. They shape the ways of doing business either through voluntary self-

binding measures (e.g., industry codes of conduct or standards of behavior) or by posing external pressure on actors within their sphere of influence (e.g., when a voluntary standard becomes a de facto standard). However, “normative legitimacy deficits have been identified as generating problems

and perceptions of normative legitimacy flagged

as influential for the effectiveness of transnational governance” (Quack, 2010, pp. 7-8). Therefore, lacking normative legitimacy of transnational governance institutions and their development processes could limit the influence of these institutions if they are not perceived to be legitimate modes of governance by those who are affected. If the new standard or

similar efforts of transnational governance fail to demonstrate their legiti- macy they might be especially fragile and prone to scrutiny (e.g., by politi- cal and civil society actors). Such a “legitimacy crisis” could thus trigger a deteriorating effectiveness and efficiency of the standard or could even put

it into question in general. These thoughts so far point to an instrumental

perspective of legitimacy since a legitimate development process might foster social acceptance and voluntary obedience (or at least the prolifera- tion of usage of the standard). The problem with an exclusively instrumental approach, however, is two- fold. First, the causal relationship between a legitimate development process of transnational governance (defined by whichever criteria) and adherence to

the resulting norms and standards is empirically not assured and thus ambigu- ous. Second, the mere perception of legitimacy cannot be a sufficient ratio- nale for truly legitimate standardization processes since it might succumb to

a superficial “mantle of legitimacy” (Raz, 1990, p. 3) or as Wettstein (2010,

p. 280) illustrates, “This perception of legitimacy may or may not be justi- fied; accordingly, we must distinguish between normative authority and authority that is merely de facto.” An instrumental view of legitimacy thus does not provide a moral grounding but is rather fuelled by the supposed outcome. Starting from the normative deficiencies of a narrow instrumental approach, Scherer and Palazzo (2007) persuasively argue that a particular concept such as (C)SR needs to build on a normative justification to over- come the mentioned deficits. In following their reasoning it can be argued that a normative perspective is especially important for a voluntary norm, which sets out to provide guidance on SR: A standard that particularly influ- ences the behavior of organizations toward society can be expected to build

with social acceptance

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on a legitimate development process characterized by its acceptability in society. This thought, however, directly begs the question of what constitutes a legitimate development process.

Democratic Legitimacy and Deliberative Democracy in Transnational Governance

When elaborating on the rules and conditions under which a given instru- ment of governance is deemed legitimate, nowadays democratic principles normally stand at the center of thinking (Steffek, 2003). As mentioned ear- lier, new forms of governance are often connected with “a global democratic deficit that must be reduced if world-wide arrangements are to be legitimate” (Linklater, 1999, p. 477). As a consequence, establishing effective demo- cratic procedures is regarded as essential in gaining legitimacy (Clark, 2007). From a top-down perspective, democratic arrangements provide legitimation to institutions, rules, and norms (Abromeit & Stoiber, 2007). From a bottom- up perspective, these arguments are supposed to safeguard that those who are affected by the respective instrument of governance are not subjected to rules that they cannot accept. With transnational governance, however, the tradi- tional perspective of (representative) democracy becomes weaker since such forms of governance are not subject to the principle of elected individuals representing the people (Kjær, 2004; Sundström et al., 2010). Consequentially, new ways of establishing democratic procedures granting legitimacy are being discussed. The question of democratic legitimacy becomes even more pressing when looking at the various players influencing transnational gov- ernance beyond the single state. Businesses are licensed to operate as eco- nomic actors and nongovernmental organizations (NGO) or similar interest groups are licensed to act as advocates for specific issues. However, none of these actors are elected or democratically controlled by the public (Scherer & Palazzo, 2007). An approach compatible with new forms of governance under the condi- tions of globalization is often seen in the concept of deliberative democracy (esp. Habermas, 1994, 1996, 2003). According to this concept, democratic legitimacy is achieved if all parties that are affected by an instrument of policy have the opportunity to participate in its development through delib- eration. The centerpiece of legitimacy thus rests in communication processes that aim at building consensus (or at least mutual understanding) among the actors involved (Dryzek, 2000). Apart from the need to find alternatives modes of democratic legitimization beyond traditional (nation-based) democracy, various scholars point to the inherent benefits of deliberative

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democracy. Barker (2007), for example, argues that “deliberative democ-

racy

has] been developed in part to remedy the deficiencies of democ-

racy” (p. 25) and he adds that

there is a difference between a government that stands above and beyond subjects, and a process of rule deliberation and rule-making in which all those affected by the rules are involved. Simple representa- tive government does not provide the latter. Democracy as a feature of politics does. (p. 27)

The same applies to transnational governance: International norm setters such as the ISO rely on voluntary involvement in norm development pro- cesses and on voluntary adherence to the norms. Consequentially, they build on “deliberative processes to underpin the authority of their products” (Higgins & Tamm Halmström, 2009, p. 995) or put differently, any norm derived from such a governance process has to prove that it can be considered justified by being tested in a deliberative process with the affected parties (Scherer & Palazzo, 2007). Such testing places extensive demands on the governance processes to include criteria of deliberative democracy to gain democratic legitimacy as will be discussed in greater detail below.

Criteria of the Input,Throughput, and Output Dimension of Normative Legitimacy

Building on the concept of deliberative democracy, normative legitimacy in transnational governance derives from processes and results of public con- sultation, which are not part of national democratic decision making. The outcome of such processes achieves its legitimacy from the degree to which these processes reflect the plurality of views in the public sphere and among the affected parties (Palazzo & Scherer, 2006). The challenge here is to iden- tify new criteria for democratic will formation (and legitimization) beyond nation states integrating new actors such as businesses and NGOs. To assess normative legitimacy and expose such deliberate democracy criteria, the dimensions of input, throughput, and output legitimacy require consideration (Dingwerth, 2007; Quack, 2010; Zürn, 1998). Normative legitimacy is not subject to a digital 1-0 assessment but instead ranges on a continuum that will be assessed based on the criteria introduced in the following (similar to Abromeit & Stoiber, 2007). First, the input dimension deals with the question of which parties should be involved in decision making. Turning to democratic legitimacy, the initial

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question centers around the aspect of how to define the notion of “the people” in transnational governance. Because transnational governance crosses the border of nation states, the answer goes beyond the simple question of citi- zenship. Instead, the main issue from the perspective of deliberate democracy is whether the interests of all the relevant actors are sufficiently considered (i.e., is the governance process outcome based on the approval of the direct addressees and of those additional potential actors who are indirectly con- cerned). When examining transnational governance and in particular interna- tional standardization, it is necessary to consider whether the standard is derived directly or indirectly from the authentic preferences and needs of the parties concerned, and whether it appropriately considers the demands and preferences of the rule addressees (Matz, 2005; Scharpf, 1997). To elaborate, this aspect deals with the key participants of the rule-generating and decision- making processes. To achieve democratic legitimacy, those who are affected by a decision must be able to take part in the preceding governance processes and have an equal opportunity to engage in the discourse (Deitelhoff & Müller, 2005; Risse, 2006). The underlying rational is that a broad inclusion of constituents contributes to rationality and stability of the process due to a more extensive articulation of reasons (Scherer & Palazzo, 2007). Significantly, effective deliberative processes rely on the meaningful input of the participants so that the qualification or expertise of those included in pub- lic consultation can be included as additional criterion (Quack, 2010). Second, throughput legitimacy builds on a given input legitimacy and covers the precise features of decision making within the governance pro- cess. It asks which conditions need to be fulfilled when taking decisions (i.e., does the outcome rest on fair procedures of decision making) and thus deals with the procedural level of discoursive decision making (Matz, 2005). The central question addresses the way in which decisions are made (Rapkin & Braaten, 2009). Throughput legitimacy focuses on how the aggregation of individual preferences is established and in how far the rule-making actors are accountable for their actions toward the rule-following actors (Bäckstrand, 2010). In democratic governmental systems, rulers are accountable to citi- zens through mechanisms of representation and elections. In transnational governance, however, no conventional electoral procedures guarantee a legit- imate representation. In deliberative democracy instead, legitimacy is gained through procedures of deliberation in a public sphere (Habermas, 1996). As a result, the analysis focuses on the modalities of communication and decision making as well as the transparency of the process and its underlying rules. Process transparency is regarded as an enabling factor of accountability influencing democratic legitimacy. The argument is that the chance of

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(public) control of decision-making processes is an essential aspect of accountability because it leads to decisions that are based on reason rather than on the sole basis on the asymmetric power resources of the participants (Deitelhoff & Müller, 2005; Meidinger, 2008). The vital assumption for the approval of legitimate process throughput is that only informed actors are able to voice their concerns and thus to actively integrate themselves to exert their monitoring-function within transnational governance (Take, 2008). Third, to complete the picture, the output dimension is introduced as last element of normative legitimacy. Whereas input and throughput legitimacy refer to the procedural aspects of a deliberative process, output legitimacy refers to the actual result of a process and its problem-solving capacity (Rapkin, & Braaten, 2009). Thus it is a subsequent element of normative legitimacy that is based on the aspects of democratic legitimacy presented above. Accordingly, output legitimacy is a twofold dimension: The first aspect examines whether the process fulfills the goals it set for itself and whether the (intended) outcome is achieved (Matz, 2005). The second aspect refers to the quality of this out- come, that is, whether the outcome is suitable to problem solving and leads to the desired goals (Bäckstrand, 2010). Both aspects can be summarized as nor- mative since the “goals” to which both aspects of output legitimacy refer to are not an unambiguous and objective final state but rather prone to (normative) interpretation (not least since SR or corporate responsibility itself is a distinc- tively normative concept; e.g., Hahn, 2011). However, despite being an ele- ment of normative legitimacy, the output dimension is not a constituent element of democratic legitimacy since it lacks the procedural focus of the other two (Dingwerth, 2007). Instead, it focuses on the outcome of the preceding proce- dures. As a result, output legitimacy will only be a side aspect in the analysis below. Since ISO 26000 has to date only been in use for a limited time, the actual outcome of applying the new standard cannot be assessed, yet. Consequently, an assessment of the quality of the problem-solving capacity of the standard will have to await the results of subsequent empirical studies. However, in the meantime the potential institutional effectiveness of ISO 26000 can cautiously be assessed insofar as it can be derived from input and throughput legitimacy as well as from its actual content.

Analysis and Discussion of the Normative Legitimacy of ISO 26000

Based on the concept of normative legitimacy, this section undertakes a detailed analysis of the development process of ISO 26000. It covers the main elements of deliberative democracy that were introduced above. To

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elaborate, the evaluation is structured along the basic dimensions of input legitimacy (focusing on the “balance and expertise of stakeholder represen- tativeness” and on the “balance of regional representativeness”) and on throughput legitimacy (focusing on the “modalities of communication” and “modalities of decision making” and on the “transparency of the develop- ment process”). Furthermore, a brief outlook on output legitimacy will also be provided.

Input Legitimacy of ISO 26000

Input legitimacy refers primarily to the representativeness of the rule addressees in the development process. In doing so, it facilitates consider- ation of the interests of all the relevant parties. Due to the extensive range of addressees and due to the broad content of SR the participatory quality of the decision-making processes is a decisive factor to assess the input legitimacy of ISO 26000. As a result, this section assesses whether a balanced represen- tation of the various relevant stakeholder groups is achieved and whether such a representation then leads to an appropriate consideration of the vari- ous interests. The focus of the analysis is on the balance of the different stakeholder groups per se as well as in terms of their regional (geographical) representativeness. These two measures were chosen because the ISO 26000 is intended as an inclusive document that can be used by various types (and sizes) of organizations from different societal backgrounds or industries in different parts of the world (ISO, 2010e). Consequently, the assessment of these two criteria aims to indicate whether the composition of the ISO SR Working Group participants reflects this theoretically unlimited sphere of usage (thus fulfilling the general requirement of deliberation by appropri- ately allowing for the participation of all parties who might be affected by the standard). Balance and expertise of stakeholder representation. Due to the fact that a radical democratic representation (in terms of full participation of every sin- gle actor) is impossible to achieve, Habermas (1994), in his concept of delib- erative democracy, embraces the idea of moving to an association of citizens (in form of NGOs, civil society networks, or otherwise) to facilitate a repre- sentation of stakeholder ideas. Other scholars, however, dismiss the idea that such a representation can be suitable to act for a global society. Apart from the fact that, for example, marginalized groups might not be represented and transparency might not be ensured within these groups (Kjær, 2004), Howse (2001) already quite generally criticizes international civil society as “a self- selecting mélange of individuals and organizations.” (p. 362) Nevertheless, a

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representation of some form appears necessary to ensure the effectiveness of deliberative processes through information transfer as well as opinion and preference formation (Clark, 2007). Already earlier efforts in the (C)SR domain such as the later revisions of the OECD Guidelines for Multinational Enterprises embraced a variety of stakeholders. For the revision of the OECD guidelines in 2000 and 2011, an informal consultation committee of different actors was convened (Salzmann, 2005). This group, however, included only selected NGOs and experts from trade unions and business representatives without necessarily ensuring a bal- ance of different stakeholder groups. Moreover, NGO representatives were only included in the drafting phase where they participated in focus groups to comment and brainstorm on relevant issues. The ISO 26000 development process stroke a new path in systemizing the representation. Members of the ISO Working Group (WG) were subdivided in six stakeholder categories (“Consumers,” “Government,” “Industry,” “Labor,” “NGO,” and “Service, support, research and others [SSRO]”; ISO, 2005b) to support a balanced representation of the different stakeholders that meets the various interests of the addressees of the guideline. ISO member bodies (i.e., those national bod- ies that represent their country within the ISO) were allowed to nominate up to six persons (one for each of the six stakeholder categories). These nomi- nees held an “expert status” that included the right to participate actively at the different drafting stages (ISO, 2004b, 2009d). Each member body was also encouraged to establish a national mirror committee to integrate further expertise into the development process to support the WG experts. Moreover, international or regional non-ISO organizations could acquire a so called “D-liaison status” with the right to nominate up to two experts with the same status as other nominated experts (ISO, 2004b). Since SR as subject of ISO 26000 involves numerous issues beyond mere technical standardization, the inclusion of experts from various stakeholder groups seems appropriate to generate a broad expertise within the community of nominated experts. Therefore, the decision to include D-liaison experts can be regarded as beneficial for the overall expertise of the group if it can be assumed that those D-liaisons who nominated experts are especially well equipped to deal with various aspects of SR. This conclusion is supported by the type of prominent D-liaisons who sent experts to the WG (e.g., UN Global Compact, Transparency International, World Health Organization, Global Reporting Initiative, and numerous others). In May 2010 the WG consisted of 450 experts from more than 80 coun- tries (ISO, 2010c). The overall representation within the WG showed no dominating share of any single group so that the setting of a maximum

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number of experts from each stakeholder group (and country) effectively restricted, for example, financially more affluent groups from dominating the process. When drawing on the Gini coefficient as an indicator of inequal- ity in distribution, a value of 0.18 in May 2010 (improved from 0.27 in March 2005) indicates a comparably well-balanced representation. This trend toward equal representation correlated with a disproportionately high growth of smaller groups and an increasing overall number of experts during the development process. However, since private enterprises were expected to be the main adopters of the ISO 26000 (Castka & Balzarova, 2008b; Schmiedeknecht, 2008), it might have been argued that they should have been represented with a higher share to reflect the anticipated factual diffu- sion of the guideline. Apart from building on speculation (since during the development process the standard was apparently not in use, yet), such a claim does not ally with the fact that an overarching goal of ISO 26000 is to contribute to sustainable development (ISO, 2010e). Sustainable develop- ment reflects the idea of global intragenerational and intergenerational jus- tice (World Commission on Environment and Development [WCED], 1987). Since the ISO 26000 focuses not only on the needs of its direct users but also on the needs of all groups of society, the representativeness of the addressees in the development process should not (only) be equated with the representativeness of the anticipated eventual users of ISO 26000 but more importantly with the representativeness of those who might be affected by it. In addition to these aspects, the composition of the WG with its six catego- ries of stakeholders where each single expert represents the interests of its whole group can also be discussed from a more fundamental perspective. It might be argued that the grouping of participants was too inaccurate to reflect the manifold demands of the various stakeholders within each group. The two groups probably most affected in the process were “Industry” and “NGO.” For example, small and medium-sized enterprises as well as large transna- tional corporations are both included in the “Industry” group despite their very different attributes and concerns (Perera, 2009), whereas the “NGO” group can be regarded as even more heterogeneous due to the combination of such diverse aspects as human rights and biodiversity under the same roof (Boström & Tamm Hallström, 2010). While this heterogeneity indeed might have hampered the decision-making processes within these groups, a further differentiation into various subgroups would have increased the number of experts. Such an increase could have led to difficulties in consulting, voting, and reaching consensus. Furthermore, Wieland (2007) suggests that exceed- ing a critical mass of experts is likely to introduce significant barriers for an effective development progress. In this case, since the WG meetings required

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the realization of substantial resources, it appears that the final number of experts was close to reaching its maximum capacity. Instead of a further dif- ferentiation of stakeholder groups, differing concerns and viewpoints could already be voiced within these groups. This procedure directly leads to the question of the input legitimacy of each single group since the experts are supposed to represent the position of their various principals. Here again, a balanced representation of those principals who develop the position of the whole group (as well as its outcome, which is respectively voiced by the expert) clearly requires assessment. Such an analysis, however, was beyond the scope of this study. As was the case with the WG experts from different stakeholder groups, a balanced representation of stakeholders is also needed in the already men- tioned national mirror committees. More specifically, the aim of these com- mittees was to integrate potentially different national stakeholder interests into the international development process. The integration of interests was achieved via a continuous exchange of information and the option to submit comments to the WG (Castka & Balzarova, 2008b; ISO, 2009c). While already in 2006, 72% of participating countries had mirror committees, only 62% had representatives from all six stakeholder categories and 30% of the countries admitted that their committees were not in accordance with the

principle of a well-balanced representation of participation (ISO, 2007a). As

a consequence, the participating parties of the WG meeting in May 2009

were again requested to take active measures to achieve an appropriate bal- ance across the stakeholder categories in their mirror committees (ISO, 2009f). Due to the unbalanced representation in some mirror committees, communication might have been unbalanced or influenced by the interests of certain stakeholders thus limiting democratic legitimacy in this aspect. Balance of regional representation. Since ISO 26000 is intended as a world- wide standard, the regional balance of representation can be regarded as a supplementary criterion of input legitimacy. Former standard-setting pro-

cesses were sometimes criticized for an insufficient representation of devel- oping country experts that led to a “Westernization” of standards (Castka & Balzarova, 2008b; Gilbert & Rasche, 2007). The most visible effort to ensure

a regional balance in the ISO 26000 development process was the twinned

leadership of the WG that was led by the ISO member bodies Brazil and Sweden (ISO, 2009c). Furthermore, in May 2010, 70% of the WG experts came from developing countries up from 47% in May 2005 (ISO, 2010c). Hence, during the lengthy consultation process toward developing the ISO 26000 the regional allocation of experts increasingly mirrored the actual (albeit highly simplified) status of worldwide society.

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Nevertheless, given that the guideline might have been assumed to be mainly employed by organizations from industrialized countries, one could have argued that this representation does not reflect the real circumstances of future ISO 26000 adoption. However, at the time of development it was not yet clear where the potential users of the standard would come from so that any bias toward a specific group would not be justified if solely taken on grounds of speculation. To avoid such a bias, the representation should instead reflect the true circumstances of society. Such a reflection helps to prevent any ex-ante limitation of input legitimacy and more significantly, reflect the claim of sustainable development that explicitly highlights the “essential needs of the world’s poor” (WCED, 1987, p. 43). This claim directly triggers the question of how such a representation can be achieved. Each country had the same weight in the development process irrespective of other criteria such as population or GDP. This is not unproblematic when picturing that, for example, China and the U.S.A. had the same voting power as Barbados. However, attaching voting power to GDP might directly con- flict with the idea of sustainable development (since it would lose sight of the voices of the poor), whereas an allocation on the grounds of total population could potentially suppress the needs of minorities (White, 2005). In summary, the analysis above indicates that a perfect input legitimacy based on a full representativeness of all possible addressees of ISO 26000 is neither given nor potentially even possible. Perfect representation could only be achieved when virtually all addressees are included, as the underlying allocation mechanisms could otherwise always be criticized. Yet perfect rep- resentation is an unrealistic goal since it would inhibit any decision making and consulting process (Take, 2008) and thereby would directly impede throughput legitimacy. Nevertheless, an asymmetric distribution of power within such a multistakeholder discourse could destabilize the entire process. Strong individual participants could use their resources to oppress opposing positions, which could threaten the power balance. In an early survey by Schmiedeknecht (2008), 78% of the participating experts raised concerns that some groups might have a higher influence than others. Despite these objec- tions, the vast majority still agreed that the process was inclusive (86%), fair (83%), and democratic (81%). As a result, overall, the participatory quality of the WG tends to be balanced (at least in terms of ISO’s self-defined catego- ries). Consequently, the development process was not characterized by sig- nificantly unbalanced participation or by a substantially asymmetric preallocation of power. However, the aspect of unbalanced mirror commit- tees does cast a slight cloud on the democratic legitimacy of the process input. The endeavors to institute those committees can generally be regarded

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as suitable to cascade representation down to the different member bodies and to foster the communicative processes within these groups. Nevertheless, the realization of this idea was not flawless and thus provides opportunities to improve input legitimacy in transnational governance (e.g., in downstream groups). The next section now turns to evaluate whether and how the other- wise balanced representation is reflected in the processes of consultation and decision making.

Throughput Legitimacy of ISO 26000

The modalities of communication and decision making within the develop- ment process as well as the transparency of the process as an enabling factor of accountability can be regarded as the main elements of throughput legiti- macy. Furthermore, in addition to open communication, “informal” avenues of decision making such as “behind the scene” talks or the political power of certain players in the process can be relevant aspects in transnational deci- sion making. Consequently, they play an important role in the development of ISO 26000 (see Bowers, 2006). Despite their potential influence, such informal consultations are generally not included when assessing democratic legitimacy as they do not comprise an open (but merely a hidden) inclusion of actors. The authors will nevertheless revert to this aspect in the later analysis and point out opportunities and limits of such forms of participation. Modalities of communication. As stated above, democratic legitimacy in deliberative processes is achieved through open communication based on equal rights of participation. The ISO aimed to ensure open communication between the WG-participants as well as with externals (ISO, 2004b). The fol- lowing analysis will determine whether the process shows indications of barrier-free communication for the participants as a precondition for effective communication. The first area of analysis is the physical WG meetings, which can be regarded as the main international platform of communication among the WG participants. The eight plenary meetings provided opportunities for direct communication and exchange among the participants (ISO, 2007c). The average participation quota of WG experts was 58% (ISO, 2009e). With several hundred attending experts these meetings were quite large compared, for example, with the consultations preceding the revisions of the OECD guidelines that were conducted in much smaller groups (Salzmann, 2005). To avoid underrepresentation of experts from organizations with limited finan- cial resources (and thus linking this aspect of throughput legitimacy directly to the aspect of balanced representation from input legitimacy), the ISO

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established the SR Trust Fund. This fund covered the main costs for partici- pating at the WG meetings of eligible individuals to increase and broaden a balanced stakeholder involvement (ISO, 2008b). Additionally, ISO member bodies from developing countries could obtain support from the “ISO/ DEVCO” committee. Thus a number of institutional arrangements were made to lower potential barriers for participating at the WG meetings. This support enhanced the potential of personal communication within the devel- opment process and thereby strengthened opportunity for a balanced and inclusive deliberation. Beyond physical WG meetings and mirror committees, the participating actors could submit their particular standpoints on any topic of the develop- ment process and thus have it (potentially) included into the discussions. Just as with the year 2000 revision of the OECD Guidelines for Multinational Enterprises, these comments were made publicly available. With the publica- tion on the ISO online area “Livelink” they can be regarded as part of the discourse process that potentially additionally allowed for a monitoring of the involved parties by outside actors. The fact that several thousand written comments were submitted and published before each meeting indicates that this communication channel was actively used. However, active commenting

is not sufficient to justify a conclusion of legitimate decision-marking pro-

cesses. First, a key question is whether these comments were heard, dis- cussed, and incorporated in the subsequent decisions. The multistakeholder

WG conferences and the different task groups facilitated discussions and incorporation of comments into the various drafts. In addition, they provided abundant opportunities for further formal and informal consultation (van Huijstee & Glasbergen, 2008). A survey by Schmiedeknecht (2008) already indicated that the participants themselves mostly perceived the decisions to be the output of inclusive and transparent stakeholder discussions. For obvi- ous reasons however, the previously mentioned informal consultations in particular represented a “black box” for this study. Notwithstanding, language as another practical aspect of communication, can be analyzed. Just like in every other ISO standard development process, English was the official language. While taskforces provided translations of the most important documents (in particular in Spanish and French) no simul- taneous translation took place at the WG meetings. Missing translation proves

a potential impediment to democratic legitimacy during the development

process since it excluded those experts who lacked sufficient knowledge of English from participating effectively in direct communication (Tamm

Hallström & Boström, 2010). In summary, this analysis of the communica- tion procedures concludes that the procedures of the ISO 26000 development

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held no significant obstacles to hinder open communication. Yet the language aspect indicates that there is still room for improvements for future processes of transnational governance Modalities of decision making. The next level of analysis addresses the modalities of decision making within the standard development process. To gain an impression on how aggregations of preferences took place within the WG, the focus is placed on the question on how far the rules for taking major decisions followed the preconditions of democratic processes. Within delib- erative democracy, the ideal outcome would be a consensus that is achieved through open discourses in a noncoercive environment (Habermas, 1996). The overall proceeding principle within the ISO 26000 project is founded on the idea of achieving a consensus among the participants (ISO, 2005a). The ISO itself defines consensus as a

general agreement, characterized by the absence of sustained opposi- tion to substantial issues by any important part of the concerned inter- ests and by a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting argu- ments. (ISO, 2004a, p. 26)

However, this definition is not necessarily equivalent to unanimity. This evaluation can already be illustrated by a debate that took place even before the WG was constituted: In the beginning, the question of whether ISO 26000 should be designed as a certification standard or as a guideline was subject to intense discussions (Castka & Balzarova, 2008c). The final (yet strongly debated) consensus was to refrain from the idea of certification due to difficulties in verifying an extremely diverse concept (such as SR) as well as due to the unsatisfying status of the verification industry at the time. The ISO 26000 development process was then divided into several suc- cessive stages. To complete one stage and enter the next, a continuously improved draft version of the guideline had to be approved. The aim of this approach was the continuous improvement and approval of all drafts with the result being the publication of a new guideline or standard as an official ISO document. To make the consensus-principle applicable, it was presented in concrete terms for each project stage. Figure 1 illustrates these stages graphically. Figure 1 depicts how during the “Preparatory Stage,” the WG composed four consecutive “Working Drafts.” Each of these versions was sent out to all experts for comments and received an extensive amount of input by the dif- ferent stakeholders. Through this input numerous changes were successively

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Stage Preparatory Enquiry Approval Stage Commi ee Stage Stage Stage Document Working Dra 1 -
Stage
Preparatory
Enquiry
Approval
Stage
Commi ee
Stage
Stage
Stage
Document
Working
Dra 1 - 4
Commi ee
Dra
Dra Interna-
onal Standard
Final Dra Inter-
na onal Standard
Mode of
Judgement by
Decision-
leadership
Making for
⅔-majority of
vo ng P-members;
Backing of D-liaisons
Approval
⅔-majority of
vo ng P-members;
¾-majority of all
vo ng members;
Backing of D-liaisons
⅔-majority of
vo ng P-members;
¾-majority of all
vo ng members;
Backing of D-liaisons

Figure 1. Stages and modalities of decision making in the ISO 26000 development process.

implemented. To complete this stage and finalize the Working Draft, a judg- ment by the WG leadership determined whether a consensus among the par- ticipating experts was reached so that the development process entered the “Committee Stage” (ISO, 2008d). This second stage is regarded as the prin- ciple stage of the process since it included the first robust draft of ISO 26000 (ISO, 2004a). While it was made clear from the beginning, that “there will be no voting in the WG” (ISO, 2005a, p. 5) compiling the Working Drafts, the decision-making modality for completing the “Committee Draft” changed to a two-thirds majority vote of the national member bodies who actively par- ticipated in the development process (so called “P-members”; ISO, 2004a, 2009e). Clearly, since it is no longer based on finding an overarching consen- sus, such voting abandons the idea of an ideal discourse. On the other hand, whereas decisions solely stemming from the ideal speech situation are argu- ably “too idealistic” (Habermas, 1994, p. 4), decisions should at least be based on mutual understanding of the participants’ positions and values (Dryzek, 2000). This approach generally allows a deviation from a strong consensus principle. In the committee draft stage, each P-member was sup- posed to represent a national consensus of all participating stakeholder cate- gories (ISO, 2008c). Additionally, the backing of the D-liaison organizations was requested and could be expressed through comments on the Committee Draft. However, these comments were not counted as formal votes (ISO, 2007b). In March 2009, the second stage was completed after about 70% of all P-members agreed to the Committee Draft and 75% of the D-liaison orga- nizations expressed their support (ISO, 2009a). Beyond the official ISO rules, however, these results offer some leeway for interpretation: When the 14 P-members who officially abstained from voting or did not react to vote are included into the calculation, the active supportive votes account for 58% of all member bodies entitled to vote. Hence, whether this formal agreement

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reflects a true fundamental consensus or not remains inconclusive since not all member bodies took part in the vote. Nevertheless, the conclusion can be made that the free choice to take part in (or absent from) the voting process meets the requirements of a democratically coined normative legitimacy. In the last two stages (“Enquiry Stage” and “Approval Stage”), the num- ber of members who were permitted to vote was increased to all ISO mem- ber bodies (and not only the active P-members; ISO, 2004a). Again, a two-third majority among the P-members was needed to finalize the stages. This time however, no more than a quarter of negative votes of the total number of all votes cast were allowed (i.e., including those member bodies that were not active in the development process; ISO, 2004a, 2009e). This tightening of voting rules raised the formal hurdle to achieve approval along with the increasing number of voting parties. Furthermore, the backing of the D-liaisons was again requested and had to be determined on the basis of the given comments (ISO, 2007b). All comments needed either to be reviewed and resolved or rejected by the WG leadership (ISO, 2009e). In March 2010, the “Draft International Standard” and in September 2010 the “Final Draft International Standard” was approved (ISO, 2010a, 2010d). In the last voting round, the final draft reached 72 positive votes with five negative votes and 11 abstentions. This allocation of votes led to the direct publication of ISO 26000 in November 2010 (ISO, 2004a, 2010b).When reflecting on these modalities of decision making for the project milestones, the changing voting rules as well as the status of the D-liaisons deserve spe- cial attention. The closer the development process came to the final release of the guideline, the more parties had to be considered and included in vot- ing. While a consensus among the individual WG experts was necessary for the approval of the Working Draft, the “field of consensus” was gradually expanded to all ISO member bodies and the D-liaison organizations when reaching the final release of the guideline. As a result, not only the number of involved parties increased but also the approval modus changed from a consensus among individuals to a majority consensus among institutions. In particular during the final stages, this mode of consensus can be regarded as an aggregation of institutional preferences based on a previous aggregation of individual preferences. Noteworthy, however, is the fact that “consensus” as perceived by the ISO changed its meaning significantly dur- ing the process (from a general agreement and harmony type to a majority opinion determined by voting procedures). While this interpretation presents a different notion of consensus than initially intended, it nevertheless seems to be a reasonable approach to ensure the final publication of the standard. Gaining unilateral consensus amongst virtually all parties at this stage appears

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to be unfruitful (particularly when considering the highly contested content and meaning of SR by the different stakeholders). As a result, voting proce- dures, which set out to find a broad majority of agreement and which are at the same time open for all relevant actors can be deemed legitimate in a democratic sense of throughput legitimacy. This reasoning, however, implies that all votes by the member bodies build on an upstream consensus and legitimacy amongst the individual stakeholders within each of the member bodies. Here, a closer look at the votes of the member bodies in connection with the consensus principle reveals some further insights that helps to inter- pret the voting results discussed above. One of the 11 abstentions in the final voting came from the German mem- ber body. Within this member body, the groups “Government,” “SSRO,” “NGO,” and “Consumers” voted in favor of the final standard, whereas the “Industry” abstained from voting and “Labor” rejected the publication of ISO 26000 (Schoenheit, 2010). Thus, despite a supporting majority, no con- sensus could be reached, which finally led to the abstention of this member body. There are two possible reasons for this outcome leading to very differ- ent conclusions regarding the legitimacy of the processes within this mem- ber body so that this demeanor offers further interesting empirical insights with regard to normative legitimacy: It might have been possible that the German unions (as the main actors of the “Labor” group) were powerful enough to overrule the majority of other groups that were in favor of the standard. Such a course of action would indicate a drastic imbalance of power radiating from input to throughput legitimacy. The reason for the German abstention was, however, instead the result of a preceding decision taken by the German member body as early as 1996 saying that no decision can be made if a party with substantial interest in any new standard does not agree with the majority. This rule inevitably leads to a continuously used “harmony type” consensus principle (in line with ISOs efforts) to generate an inclusive and unbiased development process. While the abstention induced by the two “Labour” representatives was labeled as unsatisfactory for the German member body by some of the German experts (see Halfmann, 2010; Schoenheit, 2010) it also casts an interesting light on the overall throughput legitimacy: If such a procedure were followed in all member bodies, the distinct approval of the Final Draft International Standard would indeed indicate a very broad support of ISO 26000 among the different stakeholder groups in the different member bodies. However, even unanimous support by the member bodies does not auto- matically imply support by the external experts (namely, the D-liaisons). The D-liaison experts were considered equitable to the ISO-experts in the

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“Preparatory Stage.” They were, nevertheless, not entitled to vote during

the final ballots. Despite being asked to comment on the later draft versions there was no minimum quota for supportive comments. This approach matches with the role of outside experts (e.g., representing different NGOs)

in the revision process of the OECD guidelines. As a result, a certain room

for interpretation was given. Moreover, the fact that the achievement of a

“resolved” status for a comment also includes possible rejections indicates

a potential hazard since comments may be rejected just to speed up an

approval. Thus an assumed support of the D-liaisons might be vulnerable as some organizations could still have had significant objections. Given these facts, the ISO 26000 approval could be criticized for potentially being biased. Notwithstanding (and different from the revision process of the OECD guidelines), it has to be emphasized, however, that the issues for which D-liaisons stand as advocates should ideally be represented already in one of the six regular stakeholder categories that justifies the role of D-liaisons as advising experts. A formal voting right for these organizations could otherwise have led to an excess of votes from a specific group espe- cially since there was no predefined maximum number of D-liaisons from any area. Transparency of the development process. The ISO 26000-project was initi- ated as a multiorganizational, multistakeholder discourse for the initially discussed reasons. Consequentially, the different modi operandi need to be comprehensible for external actors to allow their active participation. The usual procedures of the ISO were widely adopted and only selectively cus- tomized to the unique preferences of ISO 26000 (e.g., with special operating procedures for D-liaison organizations; ISO, 2007b). The complexity of these rules might inhibit transparency and traceability in particular for those stakeholders who were new or not directly involved in the development pro- cess. To reduce this problem (at least for the actors involved), various tools of internal and external communication (newsletters, seminars, press releases, or the provision of WG documents via the online ISO “Livelink” area) as well as a task group (providing internal guidance on the special working procedures of the WG) were installed (ISO, 2008a, 2009c). How- ever, based on the reactions toward the change in decision-making modali- ties between the Working Draft (consensus by the experts) and the Committee Draft (voting by the member bodies), these efforts can be interpreted as not entirely successful. Since only the Working Drafts are usually (largely autonomously) prepared by the experts, the new modalities were technically still in accordance with the early resolution that stated that there was to be “no voting in the WG.” Nevertheless, this change was perceived as a breach

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of the consensus principle (Tamm Hallström & Boström, 2010). Since it was apparently not communicated clearly in advance it restricted the require- ments of deliberate democracy. Apart from the internal transparency regarding procedures and processes, one of the most important steps to ensure transparency affecting throughput legitimacy was the publication of the voting results and comments in a non- anonymous manner, that is, relating them to the respective organizations and member bodies (ISO, 2009a, 2009b). Such a procedure is in line with the principles of an open expression of opinions in deliberative democracy in which the importance of a public sphere is highlighted (Habermas, 1996). However, it does not follow democratic practices of secret ballots. On one hand, this forces the different stakeholders and actors at least partially out of their anonymity thus potentially hampering freedom of expression if such a public naming reduces an expression of opinions. On the other hand, such publicity potentially improves the possibilities to exchange ideas and thoughts while also limiting the options to revert to dogmatic positions which might hamper deliberations by assigning each comment or vote to a specific stake- holder or institution. This approach of publicity is in line with the idea of consensus finding as expressed by the ISO. Since all of the involved actors with their related votes and comments (including the final approval of ISO 26000 as an official ISO guidance document) are public, they can also be held accountable for their decisions within the process as well as for possible contrary behavior afterwards. This last point becomes highly relevant when applying ISO 26000. By allowing for monitoring by external third parties, the overall transparency of the project thus adds to its democratic legitimacy. Interestingly, whereas aspects such as comments, votes, and procedures were extensively and transparently documented, the physical meetings of the WG instead used a closed-door-policy excluding, for example, media attendance. Apparently, albeit not supported by all of the groups involved (see Tamm Halmström & Boström, 2010), this approach was chosen to foster an open communication within the WG itself to avoid strategic arguing. In sum, this multifaceted approach seems to be a suitable compromise as foundation for reasonably transparent and at the same time open communication. In conclusion it can be assessed that a largely robust general development framework generating throughput legitimacy was in place. However, in the end, the responsibility lay with the participating actors themselves to use this framework to generate throughput legitimacy through consultation and open discourses. Here, the intensive involvement (with several thousand com- ments and a rather active expression of opinion) can be regarded as a positive indicator. Indeed, the participants themselves already confirmed at an early

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stage of the development process that they generally regarded the process as inclusive, fair, legitimate, and transparent (Schmiedeknecht, 2008). However, as discussed above, some participants also mentioned a perceived uneven distribution of influence of different stakeholder groups contrary to the intended balanced stakeholder representativeness. Nevertheless, such aspects may have resulted from the participant’s own behavior rather than from an insufficient institutional framework.

Preliminary Thoughts on Output Legitimacy of ISO 26000

As mentioned above, an extensive evaluation of output legitimacy will only be possible after the new standard is in use for some time. Consequently, at this point in time, from the two main aspects of outcome legitimacy (i.e., the actual results of the process as well as the problem-solving capacities of its outcome) only an assessment of the results of the process is feasible. An assessment of the problem-solving capacity of ISO 26000 would inevitably require conducting an extensive empirical study on the effectiveness of the new standard in fostering SR in various types of organizations (comparable to preceding studies, for example, of the effectiveness of the ISO 14001 or ISO 9001; e.g., Aravind & Christmann, 2011; Beck & Walgenbach, 2005; King et al., 2005; Naveh & Marcus, 2005). When referring to the results of the process, possible trade-offs between the legitimacy on one hand and the efficiency and effectiveness of the dis- course and development processes on the other hand are relevant. At an early stage of the process, Wieland (2007) emphasized that high legitimacy (in terms of a broad inclusion of various stakeholders) could potentially lead to low effectiveness (in terms of the inhomogeneous interests of the parties involved) and efficiency (in terms of endless debates and an inability to come to an agreement). Such a trade-off could thus ultimately inhibit output legiti- macy. Indeed, the development of ISO 26000 was a lengthy process that took two years longer than initially planned. This delay can be regarded as an indicator of a trade-off. Yet in the end, a consensus was reached leading to the publication of ISO 26000. Thus a necessary condition of the output legiti- macy was finally fulfilled. This alone, however, is not sufficient to achieve output legitimacy. In particular the aspect of problem-solving capacity will most probably be subject to debate. In this regard, it is first necessary to define which “problems” ISO 26000 is designed to tackle. Given the broad aim of the

to become more

socially responsible by using this International Standard” and to offer “ways

guideline, which is to encourage “every organization

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to integrate socially responsible behaviour into the organization” (ISO 2010e, p. vi), the answer to this question can be quite multifaceted. Hahn (2012a), for example, discusses the prospects of ISO 26000 in providing an efficient organizational management infrastructure for responsible manage- ment processes, whereas Schwartz and Tilling (2009) are rather skeptical when it comes to the usefulness of the new standard. Furthermore, Van Hoivik (2011) provides insights into how the new standard might help small- and medium-sized enterprises in initiating a participatory dialogue process to embed a deeper understanding of CSR into the organization. Hahn (2012b) generally proposes that ISO 26000 will be most useful for small- and medium-sized enterprises and for those companies that did not deal with their social responsibility in a systematic way before, which would indicate certain limitations to output legitimacy. Despite these early efforts to assess the usefulness of ISO 26000, further research is necessary to deal with the question of how far ISO 26000 can achieve the above mentioned self-determined and admittedly rather vague goals and in how far it will actually be accepted by business and civil society actors.

Conclusion and Outlook

At the beginning the authors stated that there is growing recognition of the proliferation of various forms of transnational governance relevant in an international business context. Concerns of a possibly lacking democratic legitimacy of new governing mechanisms were also mentioned. In the light of this analysis one may conclude that much has been achieved in terms of legitimacy when looking at the specific example of the ISO 26000’s develop- ment process. The analysis has shown that this process is characterized by a relatively high level of normative legitimacy stemming in particular from its multiorganizational, multistakeholder approach involving experts from dif- ferent regions, organizational settings, and interest groups. This evaluation stands in stark contrast to former standardization efforts in the broad domain of SR, which derived their input from a much less diverse base of partici- pants (see Clapp, 1998, for ISO 14001; Mattli & Büthe, 2003, for ISO in general; Take, 2008, for several environmental standards). This outcome is not self-evident in light of some of the highly controversial issues which the ISO 26000 development process faced. A final look at one of these issues exposes some interesting aspects on the meaning of political bargaining in deliberate democracy: At the beginning of the ISO 26000 development there was a debate on the question whether it

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should be certifiable or not. On one hand, some participants from industry saw the opportunity for signaling “good” organizational conduct through such a certificate and some NGO representatives voiced their hope that a certifiable standard would be more easily accepted and could thus better introduce a worldwide minimum standard for social responsibility compared with a noncertifiable standard. On the other hand, other industry representa- tives feared the high costs of certification and some NGO participants argued that a certifiable standard would abet greenwashing and a misleading usage of the certificate. Yet the most critical stance against certification came from the labor representatives. Instead of a voluntary standard, labor unions and the International Labour Organization (ILO) instead preferred legal rules and binding legislation ideally on a global level. This could not be provided by the ISO. Furthermore, the ILO has its own system of international labor stan- dards that were not intended to become less important vis-à-vis ISO 26000. However, a worldwide standard on SR without the participation of the labor group would have seriously constricted the legitimacy of the standard since a broad stakeholder representation would not have been achieved. The ISO recognized this and put substantial efforts into securing the participation of the ILO as an important worldwide advocate of labor issues. A “memoran- dum of understanding” was signed which secured the position of the ILO in the development process. A position in all important decision-making com- mittees was guaranteed and the ILO was granted veto power in the case that ISO 26000 would interfere with internationally codified labor rights as set down by the ILO. The special position of the ILO can be regarded as detrimental for an ideal speech situation. In general, bargaining is not an option in the pure form of discoursive ethics. It undermines the free exchange of arguments and thus hinders an ideal discoursive outcome, which should be based solely on the quality of arguments and not on the power of the involved parties. The consultations with the ILO, however, certainly included bilateral nego- tiations and some form of bargaining. Does this then undermine the demo- cratic legitimacy of the process from the very beginning? As already discussed above in brief, the idea of an ideal speech situation can be dis- missed for its lack of feasibility in particular with regard to issues involving highly heterogeneous positions. The politically motivated talks between the ISO and the ILO can now be examined from two sides: On one hand, one could argue that they (potentially) undermine the democratic legitimacy of the development process already ex-ante since they inflate the relative posi- tion of the ILO vis-à-vis other stakeholders. On the other hand, the memo- randum of understanding might even enhance democratic legitimacy, which

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would be severely limited in the absence of this important stakeholders group. The present study suggests that the latter was the case (in particular when reflecting the relatively high level of input legitimacy and the reason- able modes of communication and decision making as relevant aspects of throughput legitimacy). The question of democratic legitimacy thus shifts to preceding processes: If the development of the ILO labor standards was coined by a high degree of democratic legitimacy, their preferred inclusion to ISO 26000 would be justified. In sum, this aspect directly points to the need to understand the limitations of deliberate democracy in transnational governance or, more precisely, to understand which compromises need to be made to enable normative legitimacy in the first place. The brief excursus illustrated that it might not be possible to implement such new modes of governance without falling back to some sort of political bargaining. For all intents and purposes, however, such bargaining inhibits deliberative democ- racy (at least theoretically) but it also served as an enabling factor of demo- cratic legitimacy for the ISO 26000 development process. Moreover, this review of the ISO 26000 development process has shown how new forms of transnational governance beyond nation states might work in practice and which drawbacks and critiques they face. From a multidisci- plinary perspective integrating organizational as well as political science, the analysis provided evidence of the legitimacy potential of this process with its opportunities as well as its limitations as an instrument of transnational gover- nance. It seems that the ISO’s efforts to achieve a reasonable balance of par- ticipation were partly successful although a full and equitable balance of stakeholders could not be achieved. The obvious limitations of the concept of deliberative democracy within transnational governance come to the fore, however, if one measures the degree of normative legitimacy (and deliberate democracy) mainly (or even solely) on the aspect of involvement of the direct and indirect stakeholders: In practical management such an extensive inclu- sion might not be achievable, for instance when critical NGOs are refusing to engage in stakeholder dialogue with companies due to feasibility, skepticism, and other reasons, or when vulnerable citizens in the third world are not able to voice their opinion due to practical constraints such as a lacking accessibil- ity, language difficulties, or otherwise. The goal of a perfectly inclusive rep- resentation thus does appear to be unrealistic already due to constraining factors such as availability of experts and other resources (similar ISO, 2010e). Nevertheless, a perfectly inclusive representation still illustrates the ideal benchmark against which such new forms of governance might be mea- sured. Yet a broad inclusion of stakeholders might not only generate positive results via a high level of input legitimacy but, in effect, an extensive and

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diverse set of participants might additionally create difficulties in ensuring throughput legitimacy since it potentially hampers consensus-finding. Notwithstanding the ISO’s apparent quest to ensure input and throughput legitimacy in the development process, its sustained efforts to achieve con- sensus might additionally lead to a situation in which the individual value for the users is rather low if the achieved consensus builds on too many compro- mises. Such an outcome is possible for corporations as well as for other orga- nizations or their stakeholders. Corporations, for example, may feel impelled to make too many concessions and compromises when extensively imple- menting the ISO 26000 guidelines, whereas other groups (such as NGOs, consumers, or employers) might perceive the final guideline as “too weak” to truly enforce organizational responsibilities. In both cases, the ISO 26000 development process would still be characterized by its normative legiti- macy. Yet this legitimacy would rather be superficial as it would not apply to the standard itself. Overall, such normative legitimacy would not help in strengthening the standards of empirical legitimacy. Finally, it is possible that the voluntary nature of the new standard could lead to mere superficial claims of adherence and possible greenwashing ten- dencies in the future. If this were indeed the outcome of using ISO 26000, the assessed normative legitimacy would not be helpful in fostering SR in organi- zations through transnational governance. If, however, the new standard helps organizations to better implement responsible management practices, it might actually prove to be a meaningful instrument of governance (Hahn, 2012b). Neither of these possible outcomes, however, is directly connected with the legitimacy assessment but rather to the content and nature of voluntary stan- dards and modes of de-governmentalized governance. Nevertheless, the inclu- sion of a diverse set of stakeholders, including reputable and well-known organizations such as Transparency International or the OECD already resulted in a broad attention toward the new standard. However, whether this attention will lead to a broad acceptance within business and society or not depends on the empirical legitimacy (i.e. the actual acceptance) it will gain amongst the different stakeholders. Moreover, it is essential that these stake- holders perceive the usage of the guideline as beneficial for themselves. Otherwise the guideline will probably perish from insignificance. These potential outcomes offer several possibilities for future research on ISO 26000.

Acknowledgments

The authors thank the editor and the anonymous reviewers of Business & Society for their valuable comments that helped to improve this article considerably.

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Authors’ Note

Earlier versions of this article were presented at the 51st International Studies Association Annual Convention 2010 and at the Academy of Management Annual Meeting 2011.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or pub- lication of this article.

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Author Biographies

Rüdiger Hahn is a full professor of business, esp. sustainability management, at the Universität Hohenheim, Germany. His research interests include, for example, sus- tainability management, CSR, sustainability reporting, and international & strategic management in developing countries. He recently published in internationally renowned journals such as, for example, Business Strategy and the Environment, International Business Review, Journal of Business Ethics, Journal of Business Research, and Organization & Environment.

Christian Weidtmann graduated from the Heinrich-Heine-Universität Düsseldorf (Germany). He is an auditor at an international multisector retailing group. His field

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of work includes worldwide audits of various functions of different group companies and due diligence projects. Previously, he worked as lecturer and research assistant at the Faculty of Business and Economics at the Heinrich-Heine-Universität Düsseldorf.

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