Linos Book Symposium: Comments by Harlan Cohen

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

As others have already written, The Democratic Foundations of Policy Diffusion, is an extraordinary achievement.  Katerina Linos has succeeded in writing a book that is both bold and meticulous, counterintuitive and utterly convincing.  Reading the book, one feels a sense of excitement that we’re truly learning something new.  There is much to learn from it (among others things, the value of her multi-method approach – a model for others), and it is certain to move the conversation in a variety of fields.

Others have already discussed the rich substance of Linos’ study.  My thoughts and questions are on Linos’ conclusions and implications, both those in the chapter of the same title (Chapter 8) and those left unstated.

My main concern is that Linos’ study may be more consequential than the final chapter suggests.  It might just be that she’s too humble, but I’m not sure Linos’ conclusion chapter does justice to the radical implications of her findings.  Take the first set of implications she identifies, those regarding the legitimacy of policy diffusion.  “The good news,” as David Zaring summarized, is that far from being imposed by unaccountable foreigners or technocrats, health and family policies are borrowed from abroad as a result of democratic politics.  As Linos writes on p. 181, “[b]y connecting references to foreign laws and international organization proposals to majoritarian values, this theory offers a direct response to criticisms of foreign laws and international organizations’ recommendations as undemocratic.”

As Linos recognizes, diffusion through democracy comes with concerns of its own.  Because politicians draw only upon those models to which voters are likely to respond – models from nearby and wealthy states – the policies adopted may not be the best available for their state.  Linos suggests that the foreign models they borrow from may be good choices; various theories of optimal borrowing suggest that shared legal heritage and success on the ground are positive indicia of good policy fit.  But whether or not these policies are the best, the overall implication is that, suggested by politicians and ratified by voters, these policies are at least legitimate (or better, more legitimate than critics of borrowing recognize.)

I’m less sure.  The democratic diffusion story Linos tells reads almost like a rejoinder to those who have complained about global governance’s democratic deficit, raising serious questions about the legitimacy of the democratic process.  Politicians don’t present voters with the best available policy alternatives; they present them with the policy alternatives they can sell.  The policies adopted represent the triumph of selfish electoral concerns over community-minded representational ones.  Linos’ description of the foreign origin of the policy as “insurance” (p. 30), drives this point home.  Whereas success in health and family policy is difficult to measure – any policy will produce a complicated mix of winners and losers, spectacular failure may be easier to observe.  Politicians have greater incentives to “insure” against failure – by hiding behind other states’ decisions – than to invest in success.

This is a pretty impoverished version of democracy – one characterized by serious principal-agent problems, and one whose legitimacy seems at least as questionable as the feared technocracy.

To my mind, the real unspoken implication of Linos’ study is thus considerably more radical and important: that the democratic process is not a legitimacy panacea, that democratic diffusion may suffer from its own deficits, and that those deficits that may be better filled by technocratic elites, unconcerned about electoral politics.  As Linos suggests in her very last sentence, it may be time to rise above the tired democracy-technocracy debate and attempt to find a path towards fuller democracy and a richer understanding of policy legitimacy.

A second set of implications Linos points to regard effective regime design.  For transnational policy advocates, the possibility of democratic diffusion might suggest different strategies with regard to the choice between hard and soft law, membership criteria in international organizations, or the issues they choose to focus on.  Each of these lessons deserves its own discussion.  Again though, I think the real implication is a much broader one.

What Linos’ study highlights is the wide range of different mechanisms that may be at work in transnational policy and global governance.  As Eric Posner has already suggested, Linos’ story is notable for the near absence of traditional international law.  But for me, what this absence suggests is not a critique of international law, but a need to broaden our understanding of it.  Because the health and family policy stories Linos tells involve the work of international organizations established by treaties, the ILO and the WHO, there is an instinct to measure the success of their initiatives as matters of compliance:  Are states complying with their obligations under these agreements?  Are other states holding them to them?  Framed this way, international law looks weak.  But Linos’ study suggests that compliance is entirely the wrong frame, that despite the presence of state-to-state law, neither mutuality of obligation nor state compliance was ever the goal.  Instead, the goal was to develop best-practices and to encourage convergence; international law creates a useful forum (the ILO and WHO) for developing ideas.

This is not to say that state-to-state compliance is never the game.  For many issues like trade it is.  Nor is convergence around best practices always the primary goal.  Linos may be right that democratic diffusion may be better suited to achieving economic and social rights than to right clear-cut violations of civil and political ones.   But that simply suggests choosing other mechanisms, whether state-to-state compliance or domestic courts.

One of the strengths of the book is its ability to rise above disciplinary and ideological battles and boundaries.  As should be clear from prior comments, the book is hard to categorize.  Is it a book about comparative law, international law, or domestic law?  Is Linos a proponent of rationalism, constructivism, or liberal theory?  It’s admirably hard to say.  To Linos’ credit, rather than getting bogged down with labels, she simply gets down to work to understand why policies seem to be diffusing.

I would suggest that the primary lesson of the book is that we should do the same in thinking about international law and global governance.  Rather than starting with theories or mechanisms, we should start with people and problems.  Who has an interest in the issue?  Why is it of transnational concern?  Whose involvement is necessary for implementation?  On some issues like health or family policy, domestic voters may have strong interests, while states may have only diffuse interests (at most) in the spread of best practices globally.  Such issues may be best dealt with through comparative law, soft law restatements, and diffusion through democracy.  On other issues, like capital adequacy requirements or antitrust policy, states may have a stronger interest in coordination, while voters are less aware.  Coordination through technocratic networks or soft law codes may be more useful.  Still other issues, like trade or war, may be important enough to states to warrant binding deals.  These may be best dealt with through reciprocal agreements and state-to-state compliance.  This is only a tiny fraction of the possible permutations, and even these issues may change (think of the sudden political salience of fiscal policy since the global financial crisis).  But it does suggest the potential for thinking the way the book does.

http://opiniojuris.org/2013/06/27/linos-book-symposium-comments-by-harlan-cohen/

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