The objective of this work is to restate the requirements of democratic legitimacy in terms of the deliberative ideal developed by Jurgen 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.
Steven Wheatley is a Reader in International Law at the Law School at University of Leeds.
Introduction Globalisation and the Democratic Deficit The Democratic Legitimacy of International Law The Structure of the Book 1 The Democratic Deficit in Global Governance The 'Vertical' Complaint The 'Horizontal' Complaint The 'Ideological' Complaint The Democratisation of Global Governance Reaffirming Sovereignty A Global Democratic State A Global Democratic Federation A Democratic Peace Perpetual Peace A Law of Peoples Cosmopolitan Democratic Law Democratising International Institutions International Parliamentary Assemblies A UN Parliamentary Assembly The Accountability Deficit The Role of Experts The Accountability of International Organisations Global Discourses: the Role of International Civil Society Conclusion 2 Democracy Within and Beyond the State International Law and the Democratic Deficit Politically Decidable Issues Deliberative Democracy Deliberative Majorities Deliberative Politics Human Rights in a Democracy The Parliamentary Principle of Democracy Challenging Democratic Truths: the Role of Judicial Review Deliberative Democracy Beyond the State Conclusion 3 The State as (Democratic) Self-Legislator The Sovereign State The State as Self-Legislator Contractual Autonomy Law-Making Treaties Deliberative Diplomacy The Indeterminacy of International Law Obligations The Problem of Customary International Law The Role of the International Law Profession A Modern Form of Customary International Law General Principles of Law The Writings of Publicists and Judgments of Courts The Writings of Publicists The Judgments of Courts Conclusion 4 The Constitutionalization of International Law From Contract to Governance Community Interests and Constitutionalisation The Constitutionalisation of International Law The Normative Hierarchy of International Law Article 103, Charter of the United Nations The International Constitution The International Constitutional Order Liberal Democratic Values in International Law Rule of Law International Human Rights Law Human Rights in the United Nations System The Construction of the Liberal State Conclusion 5 Democracy in International Law Democracy in International Law Democratic Self-Determination A (Human) Right to Democracy Democracy in the Practice of States Membership of International Organisations Democracy in the International Law Order Democratic Regime Change in International Law Operation Enduring Freedom (Afghanistan) Operation Iraqi Freedom Conclusion 6 International Governance by Non-State Actors Global Governance International 'Soft' Law Non-State Actors as Law-Makers The UN Security Council 'Networks' of Officials: Basel Committee on Banking Standards Public-Private Partnerships: World Commission on Dams Private International Governance Schemes Governance by Non-State Actors 7 A Concept of (International) Law The Concept of (State) Law Autopoiesis: Law as a Closed System of Communication Global Bukowina The Fragmentation of International Law Constitutionalisation Beyond the State The Idea of Law The Idea of Authority Democracy and the Concept of Authority A Revised Concept of Law 8 Deliberative Democracy Beyond the State The Idea of Constituent Power Democracy and the Exercise of Political Authority Those Affected/Subjected The Political Concept of Global Justice Conclusion 9 Democracy in Conditions of Global Legal Pluralism Pluralism in Global Governance Normative Pluralism What is Legal Pluralism? Global Legal Pluralism Rethinking Global Legal Pluralism State Law and International Law Relationship Between Democracy and international Law The Limits of International Law Democracy-Enhancing International Law Constitutional Self-Limitation International Law as a Pre-Commitment Device A Contestable International Rule of Law Conclusion Conclusion: Democracy and the Public International Lawyer