Democracy beyond the state and the problem of too much democracy – Observations on Chapter 6: ‘Dual Democracy’

 In Chapter 6 of The Constitutionalization of International Law which deals with ‘Dual Democracy’, Anne Peters engages (see post here) with the challenges presented by regulation by non-state actors and the reduction in the importance of sovereign consent in international law to the practice of domestic democracy. The two-track solution depends on the democratization of domestic political systems (democracy within the state) and the democratization of international organizations and other non-state actors, principally through the introduction of parliamentary assemblies and consultation mechanisms (democracy beyond the state).

 International parliamentary assemblies might provide a useful addition to the global institutional architecture, but they would not ensure the democratization of global governance. The establishment of a legislative assembly does not provide democratic legitimacy in the absence of a political community constructed by the exercise of political authority through law. The principal advantages of international assemblies lie in their ability to ensure the representation of the plurality of dominant political opinions within states and to compensate for the democratic deficit that results from the application of the principle of sovereign equality in international law-making (one-state; one vote, irrespective of population size). The most significant contribution would be in establishing an institutional mechanism to monitor the governance activities of global regulators and providing a locus for informed democratic debate on the appropriateness (or otherwise) of global law norms.

Professor Peters concludes that, in developing the idea of global democracy, it is not meaningful to refer to the idea of a global demos (although the conclusion sits uneasily with the idea of a Global Constitutional Community, in which the individual is the ultimate unit of concern). The relationship between international organizations and individuals is established by an application of the principle of ‘affectedness’ (‘those affected’ by global regulations have the right to participate in the formation and review of international law norms). There are, however, a number of problems in relying on the  ‘all affected’ principle to establish lines of accountability for the exercise of political authority ‘beyond the state’. First, the idea is invariable defined by reference to (international) human rights or material and financial considerations, reflecting particular ways of seeing the world (and particular value systems). Second, reliance on the ‘those affected’ principle leads to shifting boundaries of political constituency on policy issues, with non-state actors finding themselves accountable to different constituencies on different questions of policy (with different requirements for representation). Third, given that it is often possible for an individual to claim (and demonstrate) that they have in some way been affected by a global regulatory norm, the principle is invariably reformulated to include only those who are ‘significantly affected’ (etc.), with the test for inclusion (the claim to be ‘affected’) becoming both (more) indeterminate and subjective.

 The argument that the hypothetical political communities of global regulators are defined by the ‘those affected’ principle is common in the literature, drawing on arguments in domestic settings, where ‘those affected’ are a subset of ‘those subject’ to the law (all of whom, ceteris paribus, have the right to a vote and voice in deliberations about political law norms and the conditions of domestic justice). The establishment of political law norms is the right and responsibility of all members of the political community (‘citizens’ in the nomenclature of the state), with a particular concern for those subjects that will bear the burden of the regulatory measure (‘those affected’). The conclusion suggests that the political community of an international organizations should be defined by the principle of ‘subjectedness’: an autonomous international law order establishes its own jurisdictional boundaries and enters into an accountability relationship with those subject to the legal order. The exercise of political authority by international organizations and other non-state actors defines ‘those subjected’, who have the right to participate in decision-making processes, directly or through representatives.

 The Westphalian settlement, according to the positivist orthodoxy, constructed the modern political world, establishing the sovereign territorial state and dividing the idea of law along a strict binary line: (internal) state law in accordance with a self-given constitutional law order and (external) inter-Nation law that relied on sovereign consent for the establishment of international law norms. Within the state, it is now accepted that the legitimacy of law depends on the institutionalization of democratic procedures. The legitimacy of (positive) international law is provided by the requirement of sovereign consent, constructing an ideal in which political legitimacy rests on an expression of sovereign will and the consent of all subjected states. The two-track model of democratic legitimacy (democratic within the state and sovereign will for the establishment of international law norms) establishes a counterfactual ideal in which the democratic legitimacy of ‘Westphalian’ (domestic and international) law rests on an expression of sovereign will (in accordance with the will of the people).

 The globalization and fragmentation of regulatory functions and reduction in the centrality of sovereign consent for the establishment of law norms means that it is no longer possible for the concerned citizen to seek to influence ‘the law’ that regulates the conditions of social, economic and political life through state governments. The analysis developed by Anne Peters concludes with the requirement for a ‘multi-unit democracy, built with domestic and international building blocks’. It raises two important (and related) questions: why is it that ‘all rule [through law] over persons should be democratic’; and, how to we make sense of the counterfactual ideal in which the democratic norms of global governance systems conflict with the democratic law norms of the state – the problem of too much democracy. The solution to the ‘democratic conundrum’, following the telos of the constitutionalist argument (‘the core objective of constitutionalism [is] the containment of power’), suggests ‘an additional policy argument in favour of pluralist, non-hierarchical, network-type reconceptualizations of the relationship between international and domestic law (and between international constitutional and domestic constitutional law), based on discourse and mutual adaptation.’ Systems of law must recognize and accommodate the realities of global legal pluralism, in which overlapping and conflicting legal orders (defined by reference to a basic norm or rule of recognition), not organized in accordance with a global constitutional settlement, norm or principle, recognize their own autonomy and possibility of a legitimate claim to authority by other systems of law.

 The meta-analysis of the unstructured form of the global constitutional order is compelling, but leaves open the question as to how democratic systems of state law should react to the jurisdictional assertions of systems of global regulation (see, for an example, judgment of the German Federal Constitutional Court on the Acts approving the Treaty of Lisbon: Bundesverfassungsgericht (Treaty of Lisbon), BVerfG, 2 BvE 2/08 of 30 June 2009). The argument can be reformulated in terms of (legitimate) authority: law must have authority. For a global regulator to determine the normative situation of others, it must be a legitimate authority; that is, following Joseph Raz (The Morality of Freedom (Oxford: Oxford University Press, 1986), p. 53) it must regulate in accordance with the interests that the subjects of the legal regime already possess. In relation to the citizens of democratic states, it seems reasonable to conclude that individuals will only accept that those reasons can be determined through engagement with citizens through democratic procedures.

 The following conclusions suggest themselves in relation to international organizations and other non-state (‘non-sovereign’) actors: (1) the exercise of authority by global regulators cannot be justified by reference to global public goods (the interests of international peace and security, a globalized economy, etc.), it must be justified by reference to the interests of the subjects of the regulatory regime; (2) those interests cannot be asserted by experts, or any other institution or persons, they must be established through democratic procedures – a global regulator must engage in democratic procedures to ensure the inclusion of the interests and perspectives of those subject to the regime in any law-making processes; (3) regulatory norms must be established through a process of public reasoning that determines the content of authority directives in accordance with the interests and perspectives of those subject to the governance regime, requiring the establishment of representative, deliberative bodies and formal consultation mechanisms to engage with subjects; (4) in the absence of democratic procedures, a global regulatory body does not enjoy legitimate authority: it cannot legislate international law norms.

 The conclusion provides the basis for beginning to think about the structuring of the legal orders that together constitute the modern world of law (including state law orders and the legal orders of global governance): each (autonomous) legal system should structure its relationships with other legal systems in accordance with the idea of democratic authority. On this understanding, three issues will influence the attitude of the democratic state to conflicting assertions of jurisdiction by global governance regimes: its constructed identity as a sovereign state (it will understand itself as being bound to comply with international law norms established through an exercise of sovereign will); its rational self-interest in complying with global regulatory norms; and a revised understanding of the idea of democratic authority in conditions of global legal pluralism. The rule of international law creates a presumption for the authority of international law norms (properly so-called) that can be refuted (1) where a global regulator does not enjoy legitimate authority (where a non-state actor is not accepted as an authority, it cannot legislate valid international law norms); and (2) where the political legitimacy of state law, established through democratic procedures, ‘trumps’ that of the international law norm. Where the claim to democratic legitimacy of the international law is stronger, the international norm is to be preferred.

 The analysis suggests a multi-track approach to democratic legitimacy for ‘law’ in the modern age, following the globalization and fragmentation of regulatory functions: an international community of democratic states; deliberative forms of diplomacy in the practice of international law, with a particular focus on international law-making through international conferences that allow for the participation of state and non-state actors (‘those subjected’) and the development of the modern form of customary international law; democratic legitimacy for the global regulatory activities of non-state actors; and a conflicts of law regime that focuses on the question of democratic authority.