The Democratic Legitimacy Of International Law (29) (studies In International Law)

The objective of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by Jürgen Habermas, and apply the understanding to the systems of global governance. The idea of democracy requires that the people decide, through democratic procedures, all policy issues that are politically decidable. But the state is not a voluntary association of free and equal citizens; it is a construct of international law, and subject to international law norms. Political self-determination takes places within a framework established by domestic and international public law. A compensatory form of democratic legitimacy for inter-state norms can be established through deliberative forms of diplomacy and a requirement of consent to international law norms, but the decline of the Westphalian political settlement means that the two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law. The emergence of non-state sites for the production of global norms that regulate social, economic and political life within the state requires an evaluation of the concept of (international) law and the (legitimate) authority of non-state actors. Given that states retain a monopoly on the coercive enforcement of law and the primary responsibility for the guarantee of the public and private autonomy of citizens, the legitimacy and authority of the laws that regulate the conditions of social life should be evaluated by each democratic state. The construction of a multiverse of democratic visions of global governance by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law. Accepts the extant, fragmented system, and develops the idea that the counter factual ideal of deliberative democracy developed by Jurgen Habermas can provide the basis for thinking about the exercise of political authority beyond the state, and explores an alternative view of the nature and purposes of the modern system of international law. While international institutions continue to affirm that democracy is the only legitimate form of domestic government, the globalisation of governance has resulted in the removal of many issues from the domestic arena and the political control of citizens. This is the now widely recognised 'democratic legitimacy deficit' in international law, which encompasses traditional forms of inter-nation law, and new forms of international governance by non-state actors (the Security Council and World Bank for example). The standard response is to argue for the replication of domestic institutions at the global level, restructuring the international order along cosmopolitan lines. In contrast, this work accepts the extant, fragmented system, and develops the idea that the counter factual ideal of deliberative democracy developed by Jurgen Habermas (among others) can provide the basis for thinking about the exercise of political authority beyond the state, and explores an alternative view of the nature and purposes of the modern system of international law. In traversing this terrain, this book addresses, inter alia, questions about the democratic legitimacy of 'Westphalian' inter-nation law, the idea of democratic self-determination, the twin facts of the constitutionalisation of international law and the practice of the democratic peace, the problems inherent in discerning, in an era of global legal pluralism, the extent to which we regard international governance norms as 'law', and the impact of the fact of globalised governance through law on the fundamental theory and practice of democracy (a model developed in the context of the state) "The objective of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by Jürgen Habermas, and apply the understanding to the systems of global governance. The idea of democracy requires that the people decide, through democratic procedures, all policy issues that are politically decidable. But the state is not a voluntary association of free and equal citizens; it is a construct of international law, and subject to international law norms. Political self-determination takes places within a framework established by domestic and international public law. A compensatory form of democratic legitimacy for inter-state norms can be established through deliberative forms of diplomacy and a requirement of consent to international law norms, but the decline of the Westphalian political settlement means that the two-track model of democratic self-determination is no longer sufficient to explain the legitimacy and authority of law. The emergence of non-state sites for the production of global norms that regulate social, economic and political life within the state requires an evaluation of the concept of (international) law and the (legitimate) authority of non-state actors. Given that states retain a monopoly on the coercive enforcement of law and the primary responsibility for the guarantee of the public and private autonomy of citizens, the legitimacy and authority of the laws that regulate the conditions of social life should be evaluated by each democratic state. The construction of a multiverse of democratic visions of global governance by democratic states will have the practical consequence of democratising the international law order, providing democratic legitimacy for international law."--Bloomsbury Publishing The democratic deficit in global governance -- Democracy within and beyond the state -- The state as (democratic) self-legislator -- The constitutionalisation of international law -- Democracy in international law -- International governance by non-state actors -- A concept of (international) law -- Deliberative democracy beyond the state -- Democracy in conditions of global legal pluralism.