7
More Law, Less Democracy?
Democracy and Transnational Constitutionalism
Petra Dobner
i. introduction
Constitutionalism has an impressive past as a means of framing and taming the
political, guiding legislation and uniting societies in tacit consensus. This success
has powered the worldwide conviction that the political has either to be organised
constitutionally or will fail the demands of democracy if not modernity. But while
the process of national constitutionalisation is still going on, we are simultaneously,
confronted with the decline of state-centred constitutionalism as an effective way of
fully subordinating political power to constitutional law. The main reason for this
increasing inability of the state’s constitution to fulfil its tasks is the changing quality
of statehood itself. The transformation of statehood shatters the former unity of
territory, power, and people, and challenges the constitution’s ability comprehensively
to encompass the political entity of the state.
One answer to this problem has been to extend the concept of constitutionalism
to the global arena and to promote the idea of a global constitutionalisation. The
constitution’s journey from a state-centred concept to a transnational project has
opened new perspectives, not only in theory but also by the practical achievement
of subjecting the exercise of public authority to higher law. Recent trends towards
the  transnationalisation, privatisation, and sectoralisation of public policy have,
during the last decade, captured the attention of constitutional scholars and are
leading to the promotion of new ideas about how to theorise the emerging world of
globalised law, which extend from positions that defend the state’s indispensability to
visions of a truly new global constitutionalism beyond the state.
But this transfer of constitutional thinking from the state to the postnational
constellation does not come about without losses. One blind spot is remarkable:
throughout the debate, there exists general perplexity about how to meet the
normative demand of a democratic legitimation for legal arrangements in the
globalised world. Since the idea of global democracy remains an unfinished project
both theoretically as well as practically, this does not come as a surprise. But the lack
More Law, Less Democracy? Petra Dobner.
© Oxford University Press 2010. Published 2010 by Oxford University Press.
142 Petra Dobner
of democratically legitimised legal arrangements still renders the project of global
constitutionalisation not only incomplete but also dangerous.
The future democratic quality of law is also called into question by a third development.
In recent years, the promotion of democracy has tended to be substituted
by the promotion of the rule of law. As the American Bar Association puts it, there
is a growing belief ‘that rule of law promotion is the most effective long-term
antidote to the pressing problems facing the world community today, including
poverty, economic stagnation, and conflict’.1
While there can be no doubt that the
rule of law forms a necessary part of democratic governance, it is doubtful that
its external promotion can of itself foster democratic governance. The rule of law
as such is not necessarily democratic, and was not in the beginning of its installation
in Western societies.2
In order to fulfil democratic needs, the rule of law has
itself to be democratised. The question therefore remains whether and how the
promotion of the rule of law can be turned into a precondition for democratic
self-government.
There is, then, a growing drift between law and democracy. Surprisingly, this has
so far stirred little commotion among legal scholars. Pragmatic answers prevail, and
the urgent question of democratic legitimacy is put aside or postponed. There is,
to be sure, no ready-made solution to the question of how the normative call for
democratic legitimacy is to be reconciled with the political and legal evolution of
global rule. Yet concealing the vacancy is no remedy either: it merely shrouds the
fact that it has remained indispensable for any legitimate exercise of power to be
based upon the consent of the governed and that this major achievement of modernity
is seriously threatened by the process of globalisation in general as well as by the
globalisation of law in particular.
The practical effects of the dissolution of law and democracy and the normative
desirability of promoting democratised law will in this chapter be examined in four
steps. The first section recalls the mutual constituency of state, democracy, and
constitution, identifies the major drivers for processes of deconstitutionalisation,
and interprets them as indicators of a loosening relationship between democratic
legitimacy and constitutional law within the state. The second shows how and why
the move towards global law does not compensate for the losses in democratic
legitimacy, and instead adds to it. The third section presents and evaluates the most
salient normative approaches in the neo-Kantian tradition, which claim to present
an answer to the open question of the democratic legitimacy of global law. Finally,
the last section takes a deflated outlook on the prospects of a fully legitimised rule
of law in the globalised world.
1
American Bar Association, ‘Promoting the Rule of Law’, <http://www.abanet.org/rol/>
(accessed 25 June 2009).
2
E.-W. Böckenförde, ‘Entstehung und Wandel des Rechtsstaatsbegriffs’, in his Recht, Staat,
Freiheit: Studien zur Rechtsphilosophie, Staatstheorie und Verfassungsgeschichte (Frankfurt am
Main: Suhrkamp, 1991), 143–69, at 148.
More Law, Less Democracy? 143
ii. state, democracy, and constitution
For classical constitutional thought, the state and its constitution are mutually
constituent and dependent. It is the state’s material and geographical existence
which necessitates constitutions. Without the state’s will to act constitutionally, and
without the state’s ability to preserve and defend the viability and validity of the
constitution, it would be merely a piece of paper. For the democratic state at least,
the reverse is also true, namely that the state depends on the constitution, for there
has thus far been no other means of regulating in a binding manner both the democratic
practices and the legitimation of rule in secular societies.
In order to serve as an institution which guarantees democratic governance, the
constitution must be conceptualised as a specific form of legal regulation. In this
perspective, the particularities of constitutional regulation can be determined by
three key characteristics. Compared to their predecessors in the form of contracts
with rulers, constitutions not only limit the ruler’s exercise of power but also legitimise
such exercise; their coverage of matters is not individualised but universal; and
they bind not only some people in a given territory but all people.3
A democratic
constitution then, in contrast to other kinds of regulation, is a set of norms which
a community has agreed upon, which at least in principle is applicable to all important
matters of this community, and which is equally valid and mandatory for all
members of this community.
Thus understood, constitutions can be considered to be the ingenious answer to
the demands of secular societies to be free and bound to rules at the same time, by
forming a mutual contract—one individual with every other—in which the security
and freedom of the individual are preserved by putting the ‘natural rights’ of everyone
in the hands of the elected few. Constitutions are hence a functional solution
to a problem which could only evolve historically and culturally. In response to the
problem of how to preserve freedom and security in societies which had discovered
what Lefort calls the ‘empty place of power’, constitutions have filled this place with
their own production of legitimate rule.
With the constitution being a set of norms given by a state, for a state, and which
is valid within a state, it is coextensive with the state. The constitutional order ends
at the borders of a state, with both of them, states and constitutions, having to give
way to other states, people, and constitutions at these borders. As the normative
counterpart of the state, a constitution must address all of the state’s components,
ie the territory, power, and people. The unity of these elements in the state also has
to be represented in the institutional design of the constitution, which, to be the
order of the totality of the state, is a territorial order, a power order, and social order
in one.
Crucial to this picture of statehood and the modern constitution is the idea of
congruence: in a given territory, but not beyond, the state and only the state is
legitimised to rule over the people, who, by their consent, agree to be ruled under the
3
D. Grimm, Deutsche Verfassungsgeschichte 1776–1866 (Frankfurt am Main: Suhrkamp, 1988), 12.
144 Petra Dobner
laws of the constitution. On considering the major transformations of the political,
however, one finds that all of the classical elements of statehood are changing. In
sum, it is this congruence of territory, power, and people—which is reflected in the
constitution as a territorial, power, and social order—that is dissolving, thus changing
the conditions of constitutional rule.4
The principle of territoriality is most decisive for the modern state. It relies on
the acceptance of territorial borders as the material limit to the exercise of power.
Prepared for in the 1555 peace treaty of Augsburg and resolved in the 1648 peace
treaty of Osnabrück and Münster, the overlapping power claims based on personal
loyalties were replaced by a system of defined territorial borders. Modern states
‘explicitly claim, and are based on, particular geographic territories, as distinct from
merely occupying geographic space which is true of all social organizations. …
Territory is typically continuous and totally enclosed by a clearly demarcated and
defended boundary’.5
Altogether, the system of modern territorial states organises
geographical space by a system of ‘territorially disjoint, mutually exclusive, functionally
similar, sovereign states’.6
The territorial foundation of the state is an issue which was taken for granted as
soon as it was established. The political philosophers of the period in which the shift
from personal to territorial systems took place easily incorporated the geographic
border into their theories.7
Despite its revolutionary effects on the structures of
legitimation, the extension of power, the general self-understanding of states, the
organisation of the international system, the concept of security, and the formation
of a people, territoriality has only become a major issue of political and scientific
concern in the last few years.
This concern follows from the fact that the territorial basis is fading due to changes
both in and of space. Changes in space take place where territory formerly controlled
by the state’s authorities now is ruled by various competing actors, among which the
state is but one. Changes in space reorganise the relation between geographic space,
its users and/or usage, and its organising forces. A similar degree of attention devoted
to changes in space has been paid to changes of space and/or our perception of space.
The sense of territoriality in general is being questioned by the growing importance of
non-geographic spaces such as the virtual space of digitality. Without taking the position
that geography no longer matters, the geographically organised state is still losing
control of the growing virtual space, a fact which also undermines its authority in
4
P. Dobner, Konstitutionalismus als Politikform: Zu den Effekten staatlicher Transformation auf
die Verfassung als Institution (Baden-Baden: Nomos, 2002).
5
J. Anderson, ‘Nationalism and Geography’, in J. Anderson (ed), The Rise of the Modern State
(Atlantic Highlands, NJ: Humanities Press, 1986), 115–42, at 117.
6
J. G. Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International
Relations’ (1993) 47 International Organziation 139–74, at 151.
7
Thomas Hobbes, Leviathan oder Stoff, Form und Gewalt eines Kirchlichen und Bürgerlichen
Staates, ed I. Fetscher (Frankfurt am Main: Suhrkamp, 1984), 173; Jean Bodin, Über den Staat
(Stuttgart: Reclam, 1976), 11; John Locke, Two Treatises of Government [1689], ed P. Laslett
(Cambridge: Cambridge University Press, 1963), 343, 92.
More Law, Less Democracy? 145
geographic territories. Virtual space challenges the notion of locus; it raises the question
of whether it can make sense to speak of space and place anymore, and if so how, if
territorial fixation is abandoned. With a restructuring of the geopolitical landscape on
the one hand, and a redefinition of space in general on the other, the state enters into
a new competition over the control of space and territory. Being territorially fixed, and
having a concept of agency and power adjusted to geographic space understood in
terms of unquestionable property, the state is ‘territorially left behind’ vis-à-vis other
actors engaging in territorial fluidity.8
Once an unquestioned and reliable structure of
the political, territory is today marked by an increasing number of contingencies.
Among the terms used to describe political modernity, ‘sovereignty’ occupies
an outstanding position: ever since it was transplanted from its original theological
background to political reasoning, it has served as a focal point of political action and
self-understanding.9
The continuity in the use of the term, though, can easily betray
the fact that ‘sovereignty’ has undergone a severe change of meaning (from Fürstensouveränität
to Volkssouveränität), so modern usage of the term is not only different
from but in some respects even contradicts the original intentions of its inventor.
When in the sixteenth century Jean Bodin first applied the idea of sovereignty to the
political context, his main concern was to pacify a multitude of competing powers by
the means of centralisation and hierarchy, and to put an end to religious and civil war.
Following the philosophical reasoning about sovereignty up to the Federalist Papers
and the constitution of the USA, the concept of sovereignty has been successively
enriched and partly redirected. Whereas Bodin basically argued for the centralisation
of power, Hobbes claimed the rationality of absolute power, and although his intentions
were different, he opened rather than closed the door to a democratic share of
this power. This door was swung open wide by Locke, who argued that there is no
remedy to the uncertainties of the state of nature so long as power is held by an
absolute monarch, who ‘commanding a multitude, has the Liberty to be Judge in
his own Case, and may do to all his Subjects whatever he pleases, without the least
liberty to any one to question or controle those who Execute his Pleasure’.10
Locke
therefore claims that government has to be resigned to the public, for ‘there and only
there is a Political, or Civil Society’.11
Following this line on to the Federalists as the
ones to finally constitutionalise sovereignty, one should not neglect the contribution
made by Paine in Common Sense, who promoted a mass democratic acceptance of
the right to self-government.12
8
W.-D. Narr and A. Schubert, Weltökonomie: Die Misere der Politik (Frankfurt am Main:
Suhrkamp, 1994), 28.
9
For the early history of sovereignty cf H. Quaritsch, Souveränität: Entstehung und
Entwicklung des Begriffs in Frankreich und Deutschland Vom 13. Jahrhundert bis 1806 (Berlin:
Duncker & Humblot, 1986).
10
Locke, above n 7, 316.
11
Ibid 368.
12
Thomas Paine, Rights of Man and Common Sense (New York: Everyman, 1994).
146 Petra Dobner
Ever since the first constitution of modern times, sovereignty has shown a twosided
face: it claims the centralisation of power in the state and binds it to democratic
consent. The concept of democratically exercised sovereignty (Volkssouveränität)
now links two questions about power: the question as to the objects and extent of
power, and locating them within the state; and the question of the formal responsibility
for the exercise of this power by situating it ultimately with the people.
The concept of sovereignty for a long time has had its critics. During the early
decades of the twentieth century, Harold Laski questioned whether sovereignty was
but a hiding place for the issue of power and if there was any more legitimation to
locating it in the state than in the individual wills of the people.13
At the same time,
Hans Kelsen argued that sovereignty is incompatible with international law (Völkerrecht),
with his preferences being clearly in favour of the latter.14
This early theoretical
reasoning for a critical view on the concept of state sovereignty has recently
gained renewed support as a result of the state acquiring the status of primus inter
pares—as a national actor within the ‘corporate state’, and as an international actor
within the structures of global politics.
Taking up the differentiation of the objects and extent of power as one side of
sovereignty and the democratic responsibility as the other, the changes in sovereignty
can now be evaluated in two steps. First, we see an exodus of objects of
power out of the state, in the sense that an increasing number of basic issues such
as environmental matters, trade relations, legal affairs, and also legal sanctions and
tax matters are no longer either adequately or completely covered by one state.
And second, this also leads to a decrease in the number of democratic options for
controlling the ways in which this power is exercised, for these options have been
till now located only in the state. Although these two processes are linked, they
can be differentiated analytically and should be valued differently. Assessing the
loss of the state’s supremacy is purely a matter of measuring the output efficiency
of decision-making processes, and this assessment should be based on empirical
studies rather than political convictions. But political convictions quite rightly
have their place in evaluating the loss of democratic control accompanying this
process.
Political theory insists that the legitimation of the constitutional order must
be based directly or indirectly on the consent of the people. Ever since Rousseau’s
formulation of the social contract, the problem has been how consent can
be formed if the people have free and different wills. One answer has prevailed,
namely the assumption of homogeneity on the basis of traditional, cultural,
or ethnic bonds, which either legitimates excluding the dissenters as irrelevant
‘others’, or which ideally includes the dissenting minority into the community by
13
H. Laski, ‘Die Souveränität des Staates’, in H. Kurz (ed), Volkssouveränität und
Staatssouveränität (Darmstadt: Wissenschaftliche Buchgesellschaft, 1970), 90–108.
14
H. Kelsen, ‘Der Wandel des Souveränitätsbegriffs’, in H. Kurz (ed), Volkssouveränität und
Staatssouveränität (Darmstadt: Wissenschaftliche Buchgesellschaft, 1970), 164–78; H. Kelsen,
Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer Reinen Rechtslehre
(Aalen: Scientia, 1981).
More Law, Less Democracy? 147
assuming that sooner or later it will be part of a majority again. The construction
of homogeneity can come about aggressively as in the version of Carl Schmitt,15
or be seen as a constitutional goal as expressed by Otto Kirchheimer,16
or simply
be presented as a normatively necessary precondition for success in the general
deliberation as maintained by Jürgen Habermas.17
Without denying important
differences between these theories, one significant concurrence of these arguments
must be stated: there is no other way of constructing legitimate rule
under secular and democratic conditions than by assuming the ability to achieve
consent on the basis of shared views and values.18
Ever since they were introduced
into constitutional theory, homogeneity and consent have been theoretical
constructions as opposed to realistic descriptions. Nevertheless, we seem to have
reached a period in which these fictions have become less convincing, especially
if we take seriously the sociological observations of a growing self-reflexivity,
individualisation, differentiation, and transnational migration. These social
changes challenge the political fiction of a ‘closed society’,19
a fiction which lies
at the foundation of democratic theory and the democratic practices in most
countries.
Territorial contingency, the diffusion of power, and social plurality together
alter the conditions under which the supremacy of democratic constitutionalism
within the state was established. The exercise of public authority within the state
can no longer be considered to be under the full control of constitutional law.
Insofar as the constitution is understood as the legal realisation of the social
compact of a people, these changes also imply that democratic control by means
of constitutional law gives way to an exercise of political power beyond constitutional
norms, or to put it differently: that the linkage between law and democracy
is loosened. Globalising law is one remedy to put the exercise of public authority,
which has escaped the nation state, anew under legal regulations. But while the
establishment of transnational law undoubtedly can produce norms for matters
beyond the state, it fails to meet the criteria for democratic legitimacy of legal
arrangements.
15
C. Schmitt, ‘Legalität und Legitimität’, in his Verfassungsrechtliche Aufsätze aus den Jahren
1924–1954 (Berlin: Duncker & Humblot, 3rd edn, 1985), 263–350, at 235.
16
O. Kirchheimer, ‘Weimar—was dann?’, in his Politik und Verfassung (Frankfurt am Main:
Suhrkamp, 1981), 9–56, at 17–18.
17
J. Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen
Rechtsstaates (Frankfurt am Main: Suhrkamp, 1994).
18
A noteworthy exception to this rule is the idea of nichtüberzeugter Verständigung (‘unconvinced
understanding’) in N. Luhmann, Beobachtungen der Moderne (Opladen: Westdeutscher
Verlag, 1992), 202 (unfortunately Luhmann used the term once only, and failed to provide
further explication).
19
S. Benhabib, ‘Democracy and Identity: Dilemmas of Citizenship in Contemporary
Europe’, in M. T. Greven (ed), Demokratie—Eine Kultur des Westens? 20. Wissenschaftlicher
Kongreß der Deutschen Vereinigung für Politische Wissenschaft (Opladen: Leske und Budrich,
1998), 225–48, at 237.
148 Petra Dobner
iii. the democratic blind spot in transnational
constitutionalism
‘Transnational constitutionalism’ is here understood in an encompassing sense as
a common denominator for various attempts to extend the project of global law
beyond the traditional frame of public international law. It therefore extends beyond
the type of law which only concerns relations between sovereign states and intergovernmental
organisations.20
This younger debate observes and conceptualises a global
law which addresses or affects citizens directly and which is not restricted to law
between states but between different social, economic, or political entities within
and outside of states. Independent of whether or not the term ‘constitutionalism’ is
used to coin those projects by the authors themselves and irrespective of the general
difficulties in applying the term of constitution to global law,21
these approaches
share the idea that the global arena itself is a legislative sphere in which binding
regulations are produced which overrun the constitutional autarky of every single
state and which therefore can claim constitutional quality themselves.
From the perspective of political science, the main task for global public law in
this newer sense is to regain regulatory control over the exercise of legal or political
power. From a democratic standpoint this necessarily involves a full democratic
legitimacy for the production process of this law, its application, and its control.
The problem is that this demand can no longer be fulfilled by means of a legitimacy
chain (in which the people as members of sovereign states are viewed as authors
and addressees of the law), when either the coverage of global law leaves the paths
of interstate conventions or when the production of global law is a task for expert
conventions or private committees which are not representatives of the affected
civil societies. In either case the legitimacy chain is disrupted, thus leaving open the
question of consent. None of these conditions is denied to be empirically correct:
there is a widespread agreement that the emerging global law is a conglomerate of
rules and regulations which exceed the sphere of human rights, which can overrun
national constitutions (and not only within the EU), that compliance is enforced by
means of either juridical or economic sanctions, and that the production of these
rules has become a matter for hybrid actors, including not only states or intergovernmental
organisations, but also private, economic, and civil actors of all kinds. The
new global law therefore is confronted with a structural lack of democratic legitimacy
which can be stated in two respects: by general substantiation and by empirical
observations of new concepts of transnational law.
The democratic foundation of constitutional law and vice versa its ability to
found democratic governance within the state is closely linked to the different
aspects which have been outlined in the first section: first, that the rule of constitutional
law must be limited to a distinct territorial-personal unit and cannot claim
20
The term therefore covers concepts such as international constitutional law, global
constitutionalism, societal constitutionalism, and global administrative law.
21
Cf Grimm, Preuss, Loughlin, and Wahl in this volume.
More Law, Less Democracy? 149
validity beyond this unit; and, secondly, that it must address a specific political
entity within this unit which is responsible for the exercise of public authority, ie
government. Transnationalisation and privatisation of public authority challenge
these basic preconditions of the state’s constitution: a clear distinction between
inside and outside as well as a distinct separation of public and private.22
Following
Grimm in this basic argument about the inapplicability of constitutional thinking
beyond the state, the argument can be extended to liberal democracy in general:
not only constitutional thinking, but liberal democracy itself is dependent on a
constricted political entity. In political theory this condition is conceptualised as a
social compact between a given people. The limitation of this people is crucial for
the idea of a social compact, for only the seclusion of a political entity allows for
those who are ruled to consent to the ones who rule them. Practically the compliance
with this compact depends on the development of a specific organisation
which exercises governmental power, because the separation between a social and
a political sphere is a precondition for the constitutional subjection of the exercise
of political authority. All in all, the diffusion between governmental and private
actors, the dissolution of clearly demarcated political entities into the transnational
sphere, and the blending of private and public actors in the exercise of political
authority, which altogether characterise the transnational constellation, diminish
the options for democratic control over the exercise of political authority, and
neither can these open questions be answered, nor are they answered in the conceptions
of transnational constitutionalism. Those which so far are available fall short
of explaining how exactly global regulations can be legitimised by the consent of
the people who are affected.
How then is this problem addressed in conceptions of global law? The range
of answers is wide. Many scholars simply leave the question of legitimacy aside,
while those who do address the problem either (1) consider it to be a transitional
phenomenon, (2) continue to rely on the legitimacy chain, or (3) deny that there is
any problem at all. These stances are sketched in turn.
Representative of the first response is Christian Tomuschat, who maintains that
no group of countries is opposed in principle to the recognition of human
rights as an important element of the international legal order, almost no
group rejects democracy as a guiding principle for the internal systems of
governance of States. Given this rapprochement towards the emergence of
a true international community, objections to general principles of law are
progressively losing the weight which they carried 25 years ago.23
22
D. Grimm, ‘Die Verfassung im Prozess der Entstaatlichung’, in M. Brenner, P. M. Huber,
and M. Möstl (eds), Der Staat des Grundgesetzes—Kontinuität und Wandel: Festschrift für Peter
Badura (Tübingen: Mohr Siebeck, 2004), 145–67. See also Grimm in this volume.
23
C. Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New
Century, General Course on Public International Law, 281 Recueil des Cours (The Hague et al:
Nijhoff, 1999), at 339.
150 Petra Dobner
While it may be true that the international community shares a set of normative
values, including human rights and democracy, it remains questionable whether a
basic agreement can count as a substitute for direct involvement, co-determination,
and control of general principles of law. Critically viewed, Tomuschat’s argument
is paradoxical: if we all agree to be democrats, we do not have to be democratic
anymore. The basis of his argument is a substitution of practices with beliefs.
Instead of acting democratically we agree upon the principle. While a shared belief
in democracy (if it were true) should not be underestimated, it still cannot serve as a
substitute for a practical democratic legitimation of global principles.
Armin von Bogdandy and colleagues clearly see the problem. They state that
we are in the ‘difficult situation whereby international institutions exercise public
authority which might be perceived as illegitimate, but nevertheless as legal—for
lack of appropriate legal standards. Consequently, the discourse on legality is out of
sync with the discourse on legitimacy’.24
For them, and I agree, the newer attempts
to make up for the legitimacy deficit by looking at ‘accountability’ and ‘participation’
do not suffice, since ‘there is hardly any shared understanding about their
material content. Presently, these concepts do not provide accepted standards to
determine legality, but are not much more than partes pro toto for the concept of
legitimacy.’25
Representing the second approach, Bogdandy et al address the question of
legitimacy of global law through their own ‘public law approach’. They start by
approving some findings of the global governance concept. They note that
the global governance concept recognizes the importance of international
institutions, but highlights the relevance of actors and instruments which
are of a private or hybrid nature, as well as of individuals—governance is
not only an affair of public actors. Second, global governance marks the
emergence of an increased recourse to informality: many institutions,
procedures and instruments escape the grasp of established legal concepts.
Third, thinking in terms of global governance means shifting weight from
actors to structures and procedures. Last but not least, as is obvious from
the use of the term ‘global’ rather than ‘international,’ global governance
emphasizes the multi-level character of governance activities: it tends to
overcome the division between international, supranational and national
phenomena.26
They criticise, however, the fact that the concept of global governance ‘is mainly
understood as an essentially technocratic process following a little questioned dogma
24
A. von Bogdandy, P. Dann, and M. Goldmann, ‘Developing the Publicness of Public
International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9
German Law Journal 1375–400, at 1389.
25
Ibid.
26
Ibid 1378.
More Law, Less Democracy? 151
of efficiency’27
and seek in their own approach for a ‘response … to such claims of
illegitimacy from a public law perspective’.28
The public law perspective is defined by the dual function of public law: in the
liberal and democratic tradition public authority may only be exercised if it is based
on public law (constitutive function) and is controlled and limited by it (limiting
function).29
On this basis the answer to the legitimacy of public authority is provided
in three steps. First, the authors want to look at those activities only which ‘amount
to an exercise of unilateral, i.e. public authority’.30
They argue, that the global
governance perspective is insufficient in singling out these unilateral acts, since
‘global governance flattens the difference between public and private, as well as
between formal and informal ones’ and, moreover, rather concentrates on processes
than on single acts.31
Second, a workable concept of public authority is therefore
needed. The authors define ‘authority as the legal capacity to determine others and
to reduce their freedom, i.e. to unilaterally shape their legal or factual situation’ and
differentiate between binding and conditioning acts of this authority.32
The third and
final step defines the ‘publicness’ and internationality of public authority. This is
understood as follows:
We consider as international public authority any authority exercised on
the basis of a competence instituted by a common international act of
public authorities, mostly states, to further a goal which they define, and
are authorised to define, as a public interest. The ‘publicness’ of an exercise
of authority, as well as its international character, therefore depends
on its legal basis. The institutions under consideration in this project hence
exercise authority attributed to them by political collectives on the basis of
binding or non-binding international acts.33
Although the authors concede that these institutions only have limited resources of
democratic legitimacy, since those are ‘largely state-mediated’,34
nevertheless the gap
between the exercise of public authority and its democratic founding may be closed
via their connection to the legitimacy chains rooted in their ‘constituent polities’.35
But is the problem really solved? I have my doubts. The global governance perspective
clearly informs us about the fact that public authority defined as the ‘legal
capacity to determine others and to reduce their freedom’ is indeed exercised by a
27
Ibid 1379.
28
Ibid 1380.
29
Ibid.
30
Ibid.
31
Ibid 1381.
32
Ibid 1381–2
33
Ibid 1382.
34
Ibid 1400.
35
Ibid.
152 Petra Dobner
multitude of actors, private and public, formally and informally. Starting from the
empirically informed observation that the exercise of public authority is no longer
limited to those who are public by means of their formation, but by the effects they
have on the global public, the authors return to an idea of publicness in the first sense
only. The broad global governance perspective is narrowed by the normative decision
to count only those acts as an exercise of public authority which are exercised
by states or intergovernmental organisations and which have a ‘legal basis’ for their
operations. For those actors the legitimacy is quite unquestionable, since they are
representatives of given polities. The severe problem of legitimising the exercise of
public authorities by other actors, which are active in the production of global law—a
fact which is by no means denied by the authors themselves—remains unaddressed.
Illustrative of the third response is the work of Erika de Wet. De Wet states that
‘many critics regard the value system developing under the influence of international
institutions and tribunals as an illegitimate, super-imposed normative system that
takes place beyond any form of democratic control or accountability’.36
In addition
to the arguments which have been accentuated here, the general criticism addresses
the lack of democratic accountability for the elite groups of national officials,
the questionable legitimacy of non-governmental organisations of the emerging
Global Public Policy Networks. De Wet reports that ‘the impact of this illegitimacy
becomes even more palpable when the law of the international organization
is enforced directly in the domestic legal order without the national parliament’s
imprimatur, especially where a Member State is outvoted in the international organization
that produced the directly applicable decision’.37
Correct though her account
of the criticism is, her conclusion is questionable: ‘It is submitted that the flaw in
these arguments lies in their mythologizing of national democratic governance as a
model for international governance.’38
It would be more correct to state that the flaw
of the arguments lies not in the mythology of national democratic governance but
in the fact that the democratic legitimacy of governance is an inalienable right and
therefore must be transferred to the global arena—and that otherwise, if this is not
possible, the globalisation of law must be criticised. But at this point de Wet turns the
argument round by questioning whether democracy really equates with legitimacy.
Her first argument is based on the diversity of democracies. Surely, democracy
can ‘mean many different things, including popular democracy, representative
democracy, or pluralist democracy, to name but a few’.39
But the fact that there
are different organisational forms of democracies does not challenge the basic
fact that all of them must base their governmental system on the consent of the
people.
36
E. de Wet, ‘The International Constitutional Order’ (2006) 55 International and Comparative
Law Quarterly 51–76, at 71.
37
Ibid 72.
38
Ibid.
39
Ibid.
More Law, Less Democracy? 153
In her second argument de Wet challenges the nature of democratic theory. She
states:
[I]t has not yet been convincingly explained why the concept of democracy
would in and of itself be determinative for the legitimacy of any form of
governance. Even in well established democracies, the legitimacy of the
decision-making process has been undermined by the fact that national
democracies tend to exclude many who are affected by their policies,
simply because they are not part of the demos as understood in a particular
ethno-cultural sense. However, it is questionable whether such ethnocultural
definitions of demos are compatible with the founding principles
of constitutional democracies which aim at full representation and participation
of all affected by the decision-making process. It thus becomes
questionable whether the substance of the national democratic legislative
decision-making process would necessarily reflect the actual wishes of the
majority of those affected by it.40
What is this referring to? Modern concepts of citizenship have gone far beyond the
inclusion of an ‘ethno-cultural demos’, and overcome the ius sanguinis principle of
citizenship (which itself was never the dominant modern principle of citizenship).
The argument that the ‘substance’ of the decision-making process does not reflect
the wishes of the majority of the affected refers back to a long tradition of antidemocratic
rhetoric, but a tradition that also has been widely rejected. Direct democracies
do tend to represent the empirical will better than representative democracies
but they tend to do so on the basis of the subjection of the minority; representative
democracies, by contrast, possess a greater propensity to forge compromises.41
By
definition a compromise is something that nobody would have voted for if there had
not been others with diverging ideas. Moreover, governments and parliaments also
have the function of articulating and translating the popular will into viable policies.
The argument that democracies produce decisions that do not reflect the ‘actual
will’ is a merely populist one.
De Wet continues, thirdly, that
even in instances where groups are officially represented in the governmental
decision-making process, the legitimacy of the process suffers from the
lack of the de facto access of many of these groups to the public debate
leading up to the governmental decision-making process; as well as the lack
of transparency of the decision-making process itself; and the (perceived)
lack of independence and expertise of the decision-makers in question.42
40
Ibid 73.
41
E. Fraenkel, ‘Die repräsentative und plebiszitäre Komponente im demokratischen
Verfassungsstaat’, in his Deutschland und die westlichen Demokratien (Frankfurt am Main:
Suhrkamp, 1991), 153–203.
42
De Wet, above n 36, at 73.
154 Petra Dobner
This argument also must be rejected: modern democracies contain an abundance of
experts and expert-commissions,43
interest groups, and non-governmental participators
of all kinds which offer a wide array of formal and informal modes of participation,
including membership of political parties, the right to elect and to be elected,
and thus be part of the political decision-making process. Also the idea that parliamentarians
and members of governments lack ‘independence and expertise’ repeats
long-standing prejudices against parliamentarian democracies which have been
rebutted in practically every serious scientific piece which has been produced on this
subject.44
The main aim of de Wet’s argument is to call into question the legitimacy of
domestic democracy in order to evade the issue of democratic legitimacy of global
politics and law: if domestic democracy cannot provide for legitimacy, why then
should international policy- and law-making ever strive for it? In her own words:
However, if one accepts that democracy does not necessarily result in
legitimate decision-making either, it becomes plausible to ask whether the
international legitimacy deficit can be overcome through other measures
than democratic decision-making. These would include but not be limited
to measures aimed at a more accessible and transparent decision-making
process. Viewed in this light, it is inappropriate to dismiss the possibility of
legitimate post-national decision-making out of hand.45
But what if one does not agree that democracy does not result in legitimacy? Or
rather: what if one is convinced that democracy is the only means to reach full
legitimacy?
iv. kant and his successors: democratising
transnational constitutionalism?
The normative argument for a democratic legitimation of law is most clearly
expressed in the Kantian project of outlining the necessary preconditions for eternal
peace. According to these, constitutional law is crucial for putting into reality the
principles of moral philosophy. Following Hobbes’s idea that men are by nature in a
state of war, Kant sees the only remedy in establishing a rule of law to which everybody
consents. Since a state of peace will not simply evolve, it must be established
by means of law.
43
S. Siefken, Expertenkommissionen im Politischen Prozess: Eine Bilanz zur Rot-Grünen
Bundesregierung 1998–2005 (Wiesbaden: VS Verlag für Sozialwissenschaften, 2007).
44
S. S. Schuettemeyer, Fraktionen im Deutschen Bundestag 1949–1997: Empirische Befunde
und Theoretische Folgerungen (Opladen: Westdeutscher Verlag, 1998). W. Patzelt,
‘Politikverdrossenheit, populäres Parlamentsverständnis und die Aufgaben der politischen
Bildung’, in Aus Politik und Zeitgeschichte (APuZ), B7/8-1999, 31–8.
45
De Wet, above n 36, at 73–4.
More Law, Less Democracy? 155
Starting from a conflict theory, Kant sees the need to establish three elements of
a global legal order aimed at solving possible clashes. Conflict can occur between
people of one state, between states, and in the relation between individuals and
states. In symmetry with the possible sources of conflict three different elements of
a global legal order have to be established in order to make peace possible:
All men, who have a mutual influence over one another, ought to have a
civil constitution. Now every legitimate constitution, considered in respect
of the persons who are the object of it, is I. either conformable to the civil
right, and is limited to the people ( jus civitatis). II. Or to the rights of nations,
and regulates the relations of nations among each other (jus gentium). III. Or
to the cosmopolitical right, as far as men, or states, are considered as influencing
one another, in quality of constituent parts of the great state of the
human race (jus cosmopoliticum). This division is not arbitrary; but necessary
in respect of the idea of a perpetual peace.46
According to these considerations ‘the civil constitution of every state ought to be
republican’.47
A republican constitution results from the idea of a social compact,
‘without which one cannot conceive of a right over a people’,48
and is defined as a
constitutional order which respects the liberty of men, enables the equal subjection
of all to the law, and is based on equality of all members of a state. Legal and exterior
liberty therefore, is not ‘the faculty of doing whatever one wishes to do, provided it
injures not another. It consists in rendering obedience to those laws alone to which I
have been able to give my assent’.49
Earlier in this essay Kant had already argued that
a state is not ‘like the soil upon which it is situate, a patrimony. It consists of a society
of men, over whom the state alone has a right to command and dispose’.50
Although
Kant goes beyond Rousseau in stating that representatives can exercise the task of
finding the right decisions, he does not leave any doubt that the state is society, and
that therefore the state’s right ‘to command and dispose’ must ultimately be rested
on self-government. Normatively, there is no doubt that the right to self-government
is closely linked to the right to legislate, which can be traced back to the people’s
46
Immanuel Kant, Project for a Perpetual Peace: A Philosophical Essay. Translated from the
German (London: Vernor & Hood, 1796), at 13.
47
Ibid 13.
48
Ibid 4.
49
Ibid 14.
50
Ibid 3. The thought that it is society alone which can make the rules to which it shall obey
is expressed even more clearly in the German version, where Kant clearly states the identity
of state and society: ‘Der Staat ist nämlich nicht (wie etwa der Boden, auf dem er seinen
Sitz hat, eine Habe (patrimonium). Er ist eine Gesellschaft von Menschen, über die niemand
anders als er selbst, zu gebieten und zu disponieren hat’ (Immanuel Kant, ‘Zum Ewigen
Frieden: Ein Philosophischer Entwurf’, in W. Weischedel (ed), Immanuel Kant: Schriften zur
Anthropologie, Geschichtsphilosophie, Politik und Pädagogik I, Werkausgabe Band XI (Frankfurt am
Main: Suhrkamp, 1795/1993), 191–251, at 197).
156 Petra Dobner
own consent, and that both rights are indispensable for the establishment of, if not
perpetual, at least temporary peace.
Kant’s vision for eternal peace based on the consent of the people can be
summarised as a multi-level system, in which a domestic republican constitution is
complemented by an international public law, which regulates the relation between
states, and a global layer of universal human rights. His insistence on the right of
legal self-determination and his attempt to connect this thought with the vision of
peaceful international order has inspired a discussion about the modernity and applicability
of his thoughts for the post-national constellation. Two different readings
of Kant prevail: one reading is recommendatory, in the sense that it seeks to adopt
Kant’s proposal as a guideline for the establishment of the international order. The
second reading is more factual, claiming that Kant’s ideas are already materialising
in the existing order. I will argue, however, that Kant’s premisses prohibit thinking
about the democratic legitimacy of law in continuity with his scheme.
Representative of the recommendatory line is Ernst-Ulrich Petersmann. For
Petersmann, ‘Kant was the first political thinker who developed a comprehensive
theory of national and international constitutionalism based on the insight that the
problem of establishing a perfect civil constitution is subordinate to the problem of
a law-governed external relationship with other states and cannot be solved unless
the latter is solved’.51
Petersmann therefore asks if ‘modern international law and
the UN Charter offer such a constitutional framework for cosmopolitan cooperation
and perpetual peace among legally free and equal citizens’.52
While his account on
the constitutional quality of the UN remains sceptical, since ‘lasting peace cannot
be effectively secured by power-oriented organizations like the UN’,53
Petersmann
is more optimistic about the WTO and European constitutional law. With the
latter being an ‘interlocking layered system of national and international guarantees
of human rights, democracy, and rule of law which can be directly invoked
and enforced by European citizens’,54
it shows, according to Petersmann, that ‘this
constitutional insight—that cosmopolitan international guarantees of freedom, nondiscrimination,
and rule of law can strengthen and extend corresponding national
legal guarantees of citizens also within their own countries vis-à-vis their own
government—goes far beyond Kant’s draft treaty for perpetual peace’.55
European
constitutional law and its underlying Kantian theory therefore could—or, rather,
should—inspire a reform process of the UN. For Petersmann the Kantian project
has not yet become reality, but it nevertheless instructs us on how to proceed. In his
view, the UN Charter ‘needs to be supplemented by a new UN constitution focusing
51
E.-U. Petersmann, ‘How to Constitutionalize International Law and Foreign Policy for the
Benefit of Civil Society?’ (1998) 20 Michigan Journal of International Law 1–30, at 7.
52
Ibid 12.
53
Ibid 14.
54
Ibid 16–17.
55
Ibid 17.
More Law, Less Democracy? 157
on effective protection of fundamental rights and constitutional democracies as
preconditions for lasting peace’.56
Jürgen Habermas is the most prominent author of those who comply with the
second line of approach to the Kantian outline of an international constitutional
order. In his essay ‘Does the Constitutionalization of International Law Still Have a
Chance?’, he argues that Kant’s proposal should be read as a model for a multi-level
system, and not be misunderstood as a model for a Weltrepublik.57
Therefore national
constitutions and a constitutionalised world order do not have to be of the same kind:
while national constitutions must be republican in the sense of adopting democratic
self-government, it suffices for the international order to lay down the cosmopolitan
principles of universal human rights. But ‘liberal constitutions beyond the state, if
they are to be anything more than a hegemonic legal façade, must remain tied at least
indirectly to the processes of legitimacy within constitutional states’.58
While Habermas
sees that the realisation of the Kantian vision is challenged by other projects,
especially the neoliberal design of a denationalised Weltgesellschaft, the post-Marxist
scenario of a decentred empire, and the anti-Kantian project of Großraumordnungen
in the tradition of Carl Schmitt’s thinking,59
he nevertheless finds some evidence
that the Kantian project is emerging. He finds the basis for this optimism mainly in
the UN Charter and several newer features of the UN: in contrast to the League of
Nations, which basically concentrated on the prevention of war, the UN Charter lays
down and enforces human rights. This is underlined by the right of the UN Commission
on Human Rights (UNCHR) to influence national governments as well as by
the right of everyone for petition to the UNCHR. Although this right has so far not
been used extensively, it nevertheless documents the recognition of individual citizens
as direct subjects of global public law (Völkerrecht).60
Secondly, the renunciation
of force is now supported by Articles 42 and 43 of the UN Charter which enlarge the
possibilities for the engagement of the Security Council in general, by for example
extending its rights to intervene in intrastate conflicts. Thirdly, the UN is an inclusive
organisation and not, as with the League of Nations, an avant-garde of liberal
democracies.61
All in all, Habermas concludes, the International Community sees
itself committed to the enforcement of those constitutional principles, which so far
have only been realised by nation states only, on a global scale.62
Two hundred years ago, the world was different. This is more than a banal statement
when it comes to the question of the applicability of philosophical ideas which
have been produced against the background of a completely different world. For
56
Ibid 30.
57
J. Habermas, ‘Does the Constitutionalization of International Law Still Have a Chance?’,
in his The Divided West (Cambridge: Polity, 2006), 115–93.
58
Ibid 140.
59
Ibid 185–6.
60
Ibid 162.
61
Ibid 163.
62
Ibid 160.
158 Petra Dobner
Habermas it is evident that there are some prejudices in Kant’s thinking which derive
from his contemporary biases: Kant is neither fully aware of the implications of
cultural differences nor of the force of nationalism, and he shares the ‘humanist’ idea
of the superiority of the European civilisation.63
Habermas is nevertheless convinced
that the ‘provinciality of our historical consciousness vis-à-vis the future is not an
objection to the universalistic program of Kantian moral and legal philosophy’.64
I dare to doubt that.
Kant’s argument for a republican constitution as the legal foundation of every
state lies at the heart of his whole project of eternal peace. It is based on two premisses:
first, that since men are all equal they have the right to obey those laws only
which they themselves have agreed to; and secondly that since men are potentially
hostile to each other in the state of nature they have the duty to subject themselves
to common laws. The right of self-determination is thus coupled with the necessity
of self-protection, which in cases of doubt can turn against others’ right of selfdetermination.
Since a man or a nation in the state of nature ‘deprives me of that
security, and attacks me, without being an aggressor, by the mere circumstance of
living contiguous to me, in a state of anarchy and without laws; menaced perpetually
by him with hostilities, against which I have no protection, I have a right to
compel him, either, to associate with me under the dominion of common laws, or
to quit my neighbourhood’.65
The right of self-determination is obviously unevenly
distributed around the globe. What does that mean under the circumstances of a
‘global neighbourhood’? It cannot be interpreted other than the right of those who
have united under republican constitutions to compel those who have a different
idea about which laws they want to obey or to ‘disappear’. This, of course, leads
off the track from ‘eternal peace’ and has little to do with a universalistic right to
self-governance.
To put it differently, Kant’s belief in the republican constitution is not a universalistic
truth beyond all cultural differences; it is the expression of the belief in the superiority
of the European civilisation and the fruits of the enlightenment as the only remedy
for hostility among people. Notwithstanding the fact that there is a certain tension
between the ‘right to one’s own right’ and the duty to interpret this right in the
canalised way of republicanism, let us assume that this is a correct assumption.
What does that imply for the conception of the multi-level system of the international
order? One conclusion is that the second and third layer, the ius gentium and
the ius cosmopoliticum, must include provisions for cases in which states which have
not—by self-determination—agreed upon a republican constitution must have these
imposed upon them by the world community. This is not far from reality, especially
not far from the rule of law promotion, be it merely politically suggested or militarily
imposed. But is it compatible with Kant’s plea for a legal autonomy at home,
peaceful cooperation among states, and the cosmopolitan duty of hospitability? It
63
Ibid 145–6.
64
Ibid 146.
65
Kant, above n 46, 13.
More Law, Less Democracy? 159
certainly contradicts Kant’s fifth preliminary article: ‘No state shall by force interfere
with either the constitution or government of another state.’66
A second conclusion is
that Kant’s reasoning does not provide answers for all the moral problems which are
posed by a globalised, multi-centric, multi-ethnic, and multi-religious world.
Kant may not have been aware of the idea of nationalism, but he certainly
perceived the world as ultimately constituted by states: the autonomous state, an
independent polity, is the backbone of his whole account. But common wisdom
and empirical evidence show that states have been relativised in their capacity to
be the only and autonomous political actors on the global scene; in many cases,
they may not even be the most important ones any longer with respect to the
formation of the international order. What consequences does this have for the
applicability of Kantian thought on today’s problems? Habermas repeats the claim
that the legitimacy for any transnational constitution must be derived from democratic
nation states; but what if nation states are simply not the central actors in
this construction? The idea of a legitimacy chain cannot then be applied, and the
problem of how the evolution of globalised law can be democratically legitimised
remains unsolved.
Kant not only believed in ‘democratic peace’ but also in the evolution of peace on
the basis of free trade:
It is the spirit of commerce that sooner or later takes hold of every nation
and it is incompatible with law: the power of money being that which of
all others gives the greatest spring to states, they find themselves obliged
to labour at the noble work of peace, though without any moral view; and
instantly seek to stifle, by mediations, war, in whatever part it may break
out, as if for this purpose they had contracted a perpetual alliance; great
associations in a war are naturally rare, and less frequently still successful.67
This peaceful picture of the merits of commerce will hardly be subscribed to by
those nations which since the 1980s have been forced into the ‘free’ trade system by
the structural adjustment programmes of the World Bank. It may be the ‘power of
money’ which is here at work, but not only since the privatisation of world politics
and the involvement of economic actors has it become possible that the ‘power of
the law’ becomes subservient to the ‘power of money’.68
The idea that economic
commerce is an independent sphere, which encourages states to ‘labour at the noble
work of peace’, is so far away from the hard competition on and for markets that not
only Karl Marx but also free-traders like Adam Smith would shake their heads about
such naivety. Moreover, Kant’s belief that free trade evolves outside of law prevents
us from relating his position to the attempt to understand the promotion of legal
arrangements for the benefit of commercial interests. But regulations for the ‘free’
66
Ibid 2.
67
Ibid 42.
68
K. Polanyi, The Great Transformation: Politische und ökonomische Ursprünge von Gesellschaften
und Wirtschaftssystemen (Frankfurt am Main: Suhrkamp, 1976).
160 Petra Dobner
market are among the most prominent examples for the evolution of global law,
whether they be praised like the ‘lex mercatoria’ or disliked by many, such as aspects
of patent law.
Finally, Kant and his successors seem to agree that the global arena is sufficiently
legally organised if it guarantees human rights. Without denying the importance of
human rights, one cannot ignore the fact that global law extends far beyond human
rights: the debate on global law is concerned with trade law, social law, global private
law, patent law, financial law, and administrative law to name but a few. These all
have an impact on domestic and international, as well as global, subjects and polities,
determine their policies, and challenge their ‘legal autonomy’. Limiting the quest for
global law to human rights, and finding that those have already been laid down more
or less satisfactorily and that therefore the project of global democracy is within
grasp fails to account for the fact that there is a darker side of global regulations
which affect the political, economic, social, and personal lives on earth—independent
of and beyond our consent. This is the hard case for the search for means of
legitimation, and every failure to find these means (or stop the production of this
law) will ultimately deepen the gap between democracy and law. If philosophy still
seeks to keep abreast of contemporary developments, it cannot ignore real world
developments, which are far removed from the well-organised ideal world of citizens
living peaceably and hospitably in independent (republican) states.
v. outlook
The account of our achievements in legitimising law—and the exercise of public
authority on the global scheme—must remain pessimistic. On the domestic scene,
changes of statehood induce a process of deconstitutionalisation which also includes
a loss of our ‘right to our own right’. On the global level, the production of law is
undertaken in many fields, and those who observe and promote this production
either do not care about its democratic control or they are unable to provide satisfactory
answers to how it could be legitimised. This pessimistic outlook may easily
arouse the question whether I am exaggerating in one of two (or both) directions.
Do I take the quest for democratic legitimacy too seriously? And am I too critical
about the prospects for the democratic legitimacy of global law?
The normative argument that human equality must be interpreted as the right
to decide upon one’s own government is hard to refute. Article 21 of the Universal
Declaration of Human Rights recognises that
[e]veryone has the right to take part in the government of his country,
directly or through freely chosen representatives. The will of the people
shall be the basis of the authority of government; this shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage
and shall be held by secret vote or by equivalent free voting procedures.69
69
Universal Declaration of Human Rights, 10 December 1948, A/RES/217A(III).
More Law, Less Democracy? 161
Who, but the citizens themselves, should—in a secular world—have the right to tell
them where to go, what to approve of, what to spend their money on, and what kind
of government they want to have? If this is a universalistic moral imperative, then
there is no exception, neither for Western Europe, nor for Papua New Guinea. The
right of self-determination cannot be abandoned or bent without giving up on the
essential basis of modernity: the equality of mankind as the normative starting point
for all our reasoning about social, political, and individual life.
Further, can it really be denied that we are moving away from the realisation of
this ideal rather than drawing nearer? Is the ‘world system’ bringing us closer to
self-determination, or does it present itself as an inevitable force which we have to
accept and subject ourselves to? The latter seems closer to the truth of the matter.
But it is not the ‘world system’ as such—after all, this is still a man-made world, with
interests and biases, and with the general propensity to present those interests as
common ones. Whom does the disregarding of democratic legitimacy serve? Who
profits when democracy is abandoned? And how can we go on promoting democracy
as the basis of ‘eternal peace’ when we are about to forget about its merits and
indispensability in the heart of its invention? This neglect of democracy does not
come as a natural force; it is a consequence of a shift in attention and valuation from
legitimacy to efficiency, from political to legal constitutionalism,70
from democracy
to legal technocracy. So, at what point have we arrived? Back at the very beginning
of thinking about the legitimate production of global law.
70
See Loughlin in this volume.