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Thinking Politically about Global Constitutionalism

Published on July 22, 2010        Author: 

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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. Read the rest of this entry…

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