The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy

by Kenneth Anderson

(Update: In addition to thanks to our commentators, I want to flag in particular the extended version of Euan Macdonald’s comments over at the global administrative law blog.  And thanks to David Zaring, as well, for his comments over at The Conglomerate blog.  Very interesting reactions – check them out.)

Well, I think it is an on-going debate, anyway!  I was asked by Det Vagts the other day for something he is working on about my (evolving) views of transnational governmental regulatory networks – the kind of networks championed by Anne-Marie Slaughter, for example, in her book A New World Order. In my review of that book, I criticized such networks as seeking to “square the circle” of global governance – global governance without actual global governance. I think that critique is correct, but I also think I should be clearer about the virtues of such networks – provided that they limit themselves in important ways. This is the quick answer about governmental networks and legitimacy.

There are problems with such networks from an accountability and transparency standpoint. The recent, very good SMU conference organized by Jenia Iontcheva Turner I attended back in November had a talk by someone who had been part of such a network that dealt with certain banking issues, and she thought the network great – until she became an academic and tried to study it and discovered that no one would so much as talk to her, let alone show her documents that, indeed, had important implications for policy.  (My notes aren’t so good and I can’t figure out who it was – if someone who attended wants to tell me, I’ll correct this.)

But accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability. (I discuss this in an upcoming review essay in the American Journal of International Law, reviewing a book, NGO Accountability – I think it will be the January 2009 AJIL, but AJIL is a bit backlogged.  I also discuss other parts of this in an revised version of my SMU talk on, “Transnational Governmental Networks: Legitimate for What?” that will come out as part of the conference stuff in The International Lawyer.)

Nonetheless, insofar as these regulatory networks are limited to doing what they are able to do under the grant of bureaucratic – usually executive – authority within their own (democratic – which raises a separate problem) states, I do not have a problem as such with their democratic legitimacy. There might be problems with their regulatory reach, and this might be magnified in a transnational setting with less transparency. But in principle, I do not see this as very different from the fact that national agencies might have similar overreach and democratic deficit problems.

Notice how admirably conciliatory I am being today of these networks.  And that’s important to stress, because I do indeed see them as having a genuinely legitimate role, within certain bounds, for precisely the reasons their advocates have said. By contrast with the NGOs, they are able to partake of the (we hope) democratic legitimacy of their national governments. But to do that, however, requires that they act within the terms of that national legitimacy.

That last condition limits them to a coordinating function. It might be very robust coordinating function – meaning one in which the several members exercise great pressure to keep players ‘in the game’ and to prevent defection from a collective action system. But it is still ‘coordination’ among sovereign states, in which, if one is willing to pay the price in reputation, future dealings, etc., there is no fundamental legal mechanism to prevent a member from departing the system. If Lincoln aptly defined sovereignty as “a political community, without a political superior,” then a coordinating group of sovereigns must accept that it is not a true ‘partnership’, with the power to prevent departures. On the other hand, the group can offer collective benefits to offset the burdens.

This then leads to what seems to me the fundamental problem with these networks. It is not the networks as such – it is what they are imagined to be in a certain liberal internationalist imagination, including how they are praised in A New World Order. It is the fundamental idea that over time, as a matter of simply history taking its (and what I would call its Whig History) course, governance within networks, and among networks, will “densify” until they coalesce into something that is more than just coordinated networks of various bureaucratic functions. Over time, these mechanisms will solidify into true networks of governance. 

Now, I am highly skeptical of that as an empirical historical proposition about the future. But I am equally skeptical of it as a moral/political proposition, precisely on grounds of democratic legitimacy. And on this matter of morals, I suppose I also part company with the “new sovereigntists,” at least in their 1990s original form. In that original form, the emphasis was on sovereignty, essentially for its own sake and own value. My emphasis – and I believe that people like Jack Goldsmith and Jeremy Rabkin have come my way in the last decade – is not on sovereignty as such, but on democracy and democratic legitimacy, for which sovereignty provides a crucial vessel for its defense. It is not sovereignty as such I wish to defend; it is democracy and (liberal, that is, including the rule of law, fundamental individual rights, etc.) democratic societies, for which sovereignty is a means of its defense, not the thing to be defended as such. 

I understand that if one is a true liberal internationalist, you cannot really be satisfied with resting upon coordinated transnational actors; you want true global governance. And it is natural to want to see these things as growing into that governance. I also cannot over-stress how much I admire A New World Order for being willing to say flatly that NGOs cannot offer that legitimacy, only governments can. (The NGO advocates and their intellectual defenders have moved to a kind of weirdly obscurantist position of calling for “norm entrepreneurship” as a vehicle for eventual governance, but that is mostly a way of eliding the legitimacy question.) 

But I do not accept that one can make the jump from coordination to governance without sacrificing the principle of democratic legitimacy. The effect of this, in today’s world, is that it is an argument not so much over the existence of transnational regulatory governmental networks today, but rather over what they might become in the future. It is mostly an argument about anticipations and hopes for the future. However, if you are committed to them becoming all these wonderful political things in the future, you might well wind up ruining them and their narrow, bureaucratic functioning within a narrow, bureaucratic mandate today. Why? Because imagining their expanded political role in future governance leads to overplaying the narrowly regulatory role which gives them a certain legitimacy today precisely because they are perceived as narrow in activity and ambition. Alter that perception, and you raise significant legitimacy issues for the activities they might carry out today reasonably successfully.

http://opiniojuris.org/2009/01/28/the-on-going-debate-over-transnational-governmental-regulatory-networks-global-governance-and-legitimacy/

6 Responses

  1. This is an extremely interesting reflection.  I think its major point – that accountability and democratic legitimacy are not the same thing – is both persuasive and important; although I’m not entirely convinced by the direction the argument takes subsequently.  To my mind, accepting the distinction opens up the possibility – in theory at least – of there being other forms of non-democratic legitimacy that might be able to justify more extensive governance activities than a mere co-ordination function.  The logical conclusion of this post, on the other hand, seems to me to be that only democracy can legitimise global governance.  If this is the case, not only networks but really all international organisations (broadly understood) are in significant trouble.  Such a proposition is, however, to my mind at least, both difficult to justify normatively, and fairly easy to falsify sociologically.

    Two examples may bring this out:
    1) Global governance that is not justified by its links to any particular demos, but by being fully responsive and accountable to those upon whose interests it impacts.  A sort of “interest representation” model taken out of the national context and writ large.  Here, the claim is not basically one of democratic legitimacy, but is based rather on rights/fairness when confronted with the exercise of public power.

    2) Governance has to be effective to be legitimate, and in some cases, particularly in areas that are not politically charged, even thoroughly non democratic regulation can be legitimate if it effectively achieves the public end to which it is directed.

    (Moreover, I think both of these hypotheses can be defended in both the normative and sociological senses of “legitimacy”).

    I am entirely sympathetic to the argument that these networks must be controlled, must be transparent and accountable; their very flexibility and adaptability mean that they can be flexed and adapted in thoroughly inappropriate ways.  However, as your post points out, any legitimacy gains made from introducing such protections need not – indeed, are unlikely to be – democratic in nature.

    If my argument above is not clear, I have tried to tease it out a little further here: http://globaladminlaw.blogspot.com/2009/01/little-more-on-networks.html

  2. There’s so much in this post to discuss but I simply want to highlight one part:

    It might be very robust coordinating function – meaning one in which the several members exercise great pressure to keep players ‘in the game’ and to prevent defection from a collective action system. But it is still ‘coordination’ among sovereign states, in which, if one is willing to pay the price in reputation, future dealings, etc., there is no fundamental legal mechanism to prevent a member from departing the system. If Lincoln aptly defined sovereignty as “a political community, without a political superior,” then a coordinating group of sovereigns must accept that it is not a true ‘partnership’, with the power to prevent departures. On the other hand, the group can offer collective benefits to offset the burdens.

    We should not underestimate the democratic value and governance effects of a coordinating international system, especially if one appreciates the extent to which “our” constitution, as Russell Hardin has well-explained in Liberalism, Constitutionalism, and Democracy (1999), is itself a model of spontaneous and institutional coordination. Lacking a legal power to prevent departures is not a problem with coordinating networks of governance that rely (like the US constitution)  on largely self-enforcing norms, and that is a conspicuous political virtue. One reason for the efficacy of such norms owes to the fact that “A coordination regime is commonly strong just because it is extremely difficult to re-coordinate large numbers on doing things some other way,” in short, it becomes for all intents and purposes, the only game in town (or around the globe). The coordinating group in effect assures those participating that their joint cooperation enables them to be better off–economically, politically, legally, what have you–than they otherwise would be. Like our constitution, such a coordination regime “regulates a long-term pattern of interactions. It establishes conventions in the sociological or strategic sense that make it easier for us to cooperate and to coordinate in particular moments.” This alone would seem to have some consequence for customary international law that, in the bosom of time, would indeed allow, permit or encourage “these mechanisms [to] solidify into true networks of governance.” There is the international law analogue, in other words, of what Hardin describes in the domestic context: while the constitution is not a contract (an argument Hardin makes to devastating effect for all such ‘consent’ theories), “it creates the institution of contracting which would be impossible without a constitutional or other strong order to back it up.” The beneficial effects that followed adoption of the US Constitution were immediate and dramatic, and the specific consequences from coordination around this particular constitutional order have indeed evolved over time, even, if you will, solidified, at least inasmuch as that can be said about a “living Constitution.” In short, I think if we see this international coordination regime on the order of the Constitution we might better appreciate its prospects for change, growth or evolution, even if we can’t predict or foresee all such changes.

  3. Ya.

    Well, I have some comments:

    1) I’d like to see some actual definitions of terms.

    2) The heart and the lungs aren’t the same thing either, but their functions are rather intimately and inextricably connected. There are those who live with bad hearts, others with bad lungs, and some who live with degraded function of both.  Not all of us are prime physical specimens.

    3) Nation states don’t exactly have a great record of functioning well in either regard… but that discussion wants answer to comment #1.

    4) It can be argued that we already have a de facto global government — and I do NOT mean the UN, but what might be called ‘the community of reason’ or simply ‘the ethos’.

    What kind of a Constitution does that require?

  4. With regard to 4) I think this was in some respects the position of both the Stoics and Kant, although the practical and political consequences that followed from that conception were a bit different in each case. Indeed, natural law for at least those scholastics prior to Hobbes and Locke can be considered on par with such a community or ethos of reason, although one still needs to do the difficult work of delineating precisely and possibly what follows therefrom for conceptions of international and transnational law and justice (or ‘global government and governance’).

  5. Patrick,

    That’s about where I’m coming from, and I agree about the work involved…

    But I’d also suggest that the work goes on regardless of the specific political arrangements at a particular place or time.  “[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.

    Would have been possible in 1776 to lay charges against Frederick the Great like those against George III?

    And which was more liberal, Britain or Prussia?

    Charly

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