Thinking Politically about Global Constitutionalism

Jean L. Cohen is Nell and Herbert Singer Professor of Political Theory and Contemporary Civilization at Columbia University.

I was asked to respond to the chapters of Anne Peters in the new volume, The Constitutionalisation of International Law. Peters’ work is comprehensive, diligent and impressive in its erudition and scope.  It gives a good overview of the arguments on all sides yet does not convince me.  I’ll summarize the general thesis and make some remarks along the way and in conclusion.

Peters’ chapter on Dual Democracy must be situated in the cosmopolitan camp.  Her thesis is that global constitutionalism requires democracy and that democracy must be dual: i.e. it must operate on two tracks: one statist, the other individualist, the former relating to governance within states, the latter to governance ‘above’ states. While it is not clear to me why global constitutionalism requires democracy (Much could depend on the concepts of constitution and constitutionalism which are not examined in these chapters. But whatever conception one works with, surely it is not convincing to equate constitutionalism and democracy: rather their interrelation requires serious theoretical and perhaps historical reflection).  Obviously the real thrust of the chapter is about imagining a feasible utopia of democratic global governance.  There’s no need to repeat the arguments as to the non-democratic character of international law-making or of global governance institutions.  Clearly the issue of legitimacy arises due to the expanded scope and reach of international/global law and governance.  For Peters, legitimacy means democratic legitimacy.  She usefully canvasses all the usual suspects in the democratic camp and comes up with her own distinctive position.  The strength of her position is that it avoids the substitution-alism of many models – cosmopolitan democracy does not replace democracy within states, global civil society does not replace domestic or global government, mechanisms of direct democracy do not replace mechanisms of representation or accountability.  Nor does her approach simply rest on the domestic analogy: she trys not to simply ratchet up democratic arrangements and mechanisms developed in democratic states to the globe or to international organizations (IOs) or in today’s parlance, global governance institutions (GGIs).  To be sure, she works with a strong conception of democratic principles—political equality, participation, inclusion of all governed, responsiveness and accountability of the governing actors and the sanction power of citizens to throw out politicians normally through elections.  But the dualistic conception is contrived to mesh with the dualism of the world order—i.e. as one that is and will remain composed of both states and individuals.  Thus against substitutes like theories of deliberation, participatory democracy or competitive democracy (ascribed to Dryzek, Pateman, and Pettit respectively) that allegedly should replace formal electoral democracy, she rightly argues that these do not on their own merit the label, democratic unless they hook up with formal i.e. electoral democratic mechanisms.

 How then to resolve the democratic deficit of international law?  So what is dual democracy?  Again, the constitutionalisation of international law in this chapter entails democratization which must occur on two distinct tracks.

1. First the constitutionalisation of international law (or global democracy) requires that all states be democratic. It seems obvious that if the democratic deficit of international/global law making is to be rectified and if states continue to be internal law makers (treaties, custom) and the key actors making global law (in IOs or GGI’s) then their own internal systems would have to be democratic for the claim of delegated democratic representation to get off the ground.  In a somewhat confusing blur of the empirical, analytical and the normative levels of analysis, Peters argues that there already is an international legal democratic entitlement and that this is a key feature now, of the constitutionalisation of international law.  It is unclear just what this may mean since there are many non democratic states belonging to GGIs/IOs and making international law and I don’t know if she thinks they should be excluded from the former or barred from the latter: not a very attractive or feasible idea in my view.  I am not convinced about an international legal requirement of domestic democracy apart from requirements for joining very specific types of polities like the EU, or apart from the possibility of expulsion in case of an anti-democratic military coup as in the OAS.  Sure we all want all states to be democratic but no one can seriously contemplate excluding China from the U.N. or stripping it of its sovereign equality as a subject of international law.  If we are speaking of ideal theory, then it would certainly be preferable logically and normatively that in democratic global governance – in which states as states have a key role, indeed in which as members of IOs or GGIs there is voting by majority (instead of unanimity) -ideally the states themselves should be internally democratic and enjoy democratic legitimacy.

 2. However, even if every state was democratic and the world order was really based on sovereign equality of states this would be insufficient.  In a constitutionalized world order (again constitutionalised=democratized in her view), as all cosmopolitan theorists unfailingly remind us, natural persons, not states are the ultimate unit of moral concern and this to Peters means the ultimate unit of democratic procedures.  So voting by state or law making even by democratic states violates the allegedly core principle of democracy: simple majority rule. Even majority voting by states instead of unanimity violates the principle of one person one vote.  Apparently simple majority voting rules rather than compound majority rules are the only real democratic formula.  (I am far from convinced by this argument even as it pertains internally within states since one would maintain that all majorities are compound and thus in some important areas voting by supermajority ensures a broader consensus as in constitutional amendment rules or in federal states or federal polities).   However Peters’ point that unless GGIs or IOs are also democratized, given their role and scope in the 21^st century, then democracy on the level of states will be insufficient to counter oligarchy, power on the global level and will itself be at risk the more the global institutions decide and the more they penetrate the black box of the state and constrain state organs and individuals is compelling.  The transitive model of democratic legitimacy that relies on delegation from citizens to their states political organs to IOs is certainly no longer convincing in many contexts.  In other words the old principal/agent model for GGI’s and IOs won’t do in today’s world of complex, pervasive global governance and law making.  The lack of accountability and responsibility in many IOs and GGIs to any democratic instance or to any citizenry is certainly a serious issue today.

For Peters this means that the second track of dual global democracy has to be based on the equal consideration of natural persons and she insists on active legal personality for natural persons such that ideally they become active individual law maker’s not just rights bearers or law takers.  Democratization means that the second track of dual democracy would have individuals as co-subjects of international law making.  Transnational citizenship has to complement domestic citizenship. Why? Because in a constitutionalised (i.e. democratic) world order, citizenship would have to be globalized such that the two relevant communities are taken into account: the local community of our birth (I assume by this she means the state) and the “community of human argument and aspiration”. I am not convinced that the latter is more than a moral or symbolic community, surely it is not homologous to the demos or political community of a state so the question is what this means institutionally.

Peters proposes a range of institutions to concretize this community of humanity on the second track: including peoples’ parliaments within the WTO, the UN and the Breton Woods organizations; mechanisms for the voice and presence of civil society organizations and for their full access to information for all citizens; publicity of decisions and decision-making; referenda regarding important global issues held nationally or globally, and so on.  Happily she does not propose the principle of one person one vote for the second track since she knows this is infeasible (although her normative conception seems to require it).  Nor does she propose to replace existing institutions such as the General Assembly by a global parliament but to supplement as already indicated.  Moreover she sees that the “all affected principle” allegedly the core democratic principle is not translatable in functional organizations due to problems of delimitation: everyone is affected by everything, of course.  But GGIs or global functional organizations like the WTO or the UN are not federal states: she states that it does not make sense to consider inhabitants of member states as indirect citizens of IOs via the member states.  The “flawed compromise” she proposes is one in which membership in parliamentary assemblies tracks states’ membership meaning that voting by individuals for representatives to GGI’s (who would have initially consultative roles) be determined by state membership.   Ultimately the argument for why global parliaments even if they are only (at first) consultative are not only needed to supplement eg. The General Assembly in the UN but also more democratic turns on the claims (326) that (elected) parliamentarians are closer to citizens then members of executive and diplomats who represent member states since population size would be taken into account, individual equality would be respected, the core democratic principle, and finally if delegates are elected from domestic parliaments they would include members of the opposition.  The consultative role of such bodies internal to GGIs, if complemented by a similar rule for civil society organizations would be a major step toward their democratization.

 To be sure.  But for me the problems start here where the analysis ends.  For what is lacking is any reflection on political form, any differentiation among the types of non-state political formations to which the discourse of democratic constitutionalisation is applied, not to mention the problem of how to get there, who would have the incentive and will to push in this direction and so on.

In short, it is utterly unclear what political form “human community” could or should or does consist of and what makes it a legal or political community comparable to the legal and political communities into which “individuals are born”, namely, states.  We are told that the political community would be organized into multiple demoi.  But in a chapter of nearly 80 pages the most obvious analogy, namely federalism is referred to in one short footnote (fn 252) to a passage in which she states that her middle strategy which still relies on inter-state structures yet translates the dual basis of international law into a visible institutional structure such as the model of two assemblies in the UN (representation of states, representation of individuals) has a federalist ring.(325)  In the footnote Peters says as an afterthought: “Actually, the whole idea of a two-track democracy implies a transnational federal polity which is not, however, and should never become a federal state.”

Indeed. And there in lies the problem. But this is where the crucial critical and reflective inquiry should begin, not where it should end.  What is a federation of states and peoples that is not itself a state? Are there different versions or such beasts and could/is the EU, a non-state polity a federation, should it become one, and could a (reformed) UN or WTO be one as well?  If a federal polity is not a state then what are its core features?  Does the constitutionalisation of international law mean rendering the external internal?  In what way?  The transnational citizenship of the EU clearly involves federal principles but must a federal polity (a constitutionalized transnational legal and political order) involve direct representation of individuals in its internal organs in order to be constitutional?  Surely not.  What about direct effect?  I argue that that the discourse of the constitutionalisation of international law cannot avoid the issue of political form and after all the endless normative arguments and ideal theorizing about design feasible or infeasible utopias, this is where we should not spend our energies.