“Most Reasonable for Humanity”: Legitimation Beyond the State

The idea of a 'chain of legitimation' is a central thought in German constitutional theory. However, the conception of a chain of legitimacy does not appear to be sufficient to justify transnational democracy. Starting from this diagnosis, the paper introduces an alternative conception of transnational legitimacy. In this conception, the layer of legitimacy provided by the chain of legitimation is complemented by a layer of legitimacy that is provided by political practices at the micro-level of the political process. Our conception of transnational legitimacy - which is based on a twofold concept of normativity that distinguishes between an explicit and an implicit dimension of normativity - presents a deeper understanding of where to locate the normative forces at play within the political process. The aim of the paper is to show that at the transnational level, democratic legitimacy can only emerge if the long and abstract legitimation chains are normatively backed by pol...

2016

Developing a sociological informed social theory perspective, this article asks the question why social praxis’ of justification has moved to the centre-stage within the debate on transnational ordering. In contrast to perspectives which see the relationship between national and transnational forms or ordering as characterised by a zero-sum game, the coevolutionary and mutually reinforcing relationship between national and transnational forms of ordering is emphasised. It is, moreover, argued that this complementarity can be traced back to the fundamentally different function and position of national and transnational forms of ordering in world society. The widespread attempt to analyse transnational developments on the basis of concepts of law and the political which emerged in national contexts are therefore seen as problematic. Instead context adequate concepts of transnational law and politics are needed. It is on this background, that a discourse on justification has emerged in relation to transnational settings. Transnational justificatory praxis’ can be understood as functional equivalents to democracy in transnational settings in so far as both can be understood as reflexivity increasing instruments. The central difference is, however, that democratic frameworks implies an ex ante form of the political in contrast to the ex post emphasis of justificatory praxis’. In addition, law gains a central role as the framework through which justificatory praxis’ are structured in transnational settings.

European Journal of International Law, 2013

2012

This essay examines the rise of legal cosmopolitanism in the period since the UDHR of 1948 as it gives rise to two very distinct sets of literature and preoccupations. I contrast the mainly negative conclusions drawn by conventional political theory about the possibility of reconciling democratic sovereignty with a transnational legal order to the utopianism of contemporary legal scholarship that projects varieties of global constitutionalism with or without the state. I argue that transnational human rights norms strengthen rather than weaken democratic sovereignty. Distinguishing between a 'concept' and a 'conception' of human rights, I claim that selfgovernment in a free public sphere and free civil society is essential to the concretization of the necessarily abstract norms of human rights. My thesis is that without the right to self-government, which is exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights as being legitimate. I name processes through which rights-norms are contextualized in polities 'democratic iterations.' The institutionalization of human rights norms through democratic iterations that permit their revision, rearticulation and contestation, both within judicial institutions and in the larger spheres of civil society, exhibits certain 'epistemic virtues' and shows, in Allen Buchanan's words, 'public practical reason' at work. In conclusion, in addition to Buchanan's thesis, I consider Anne-Marie Slaughter's concept of 'transjudicial communication,' and Judith Resnik's model of 'law by affiliation'. These three models, like 'democratic iterations,' develop modalities of thinking beyond the binarism of the cosmopolitan versus the civic republican; democratic versus the international and transnational; democratic sovereignty versus human rights law.

One of the main challenges faced by realists in political philosophy is that of offering an account of authority that is genuinely normative and yet does not consist of a moralistic application of general, abstract ethical principles to the practice of politics. Political moralists typically start by devising a conception of justice based on their pre-political moral commitments; authority would then be legitimate only if political power is exercised in accordance with justice. As an alternative to that dominant approach I put forward the idea that upturning the relationship between justice and legitimacy affords a normative notion of authority that does not depend on a pre-political account of morality, and thus avoids some serious problems faced by mainstream theories of justice. I then argue that the appropriate purpose of justice is simply to specify the implementation of an independently-grounded conception of legitimacy, which in turn rests on a context- and practice-sensitive understanding of the purpose of political power.

Government and Opposition, 2004

Whereas traditional institutions used to be seen as an international complement to a dominantly national paradigm, today's international institutions are an expression of political denationalization. The new international institutions are much more intrusive into national societies than the traditional ones. They increasingly contain supranational and transnational features and thus undermine the consensus principle of international cooperation. When society and political actors begin to comprehend this change, they begin to reflect on the features of a legitimate and effective political order beyond national borders. As a result, denationalization becomes reflexive and thus politicized. At the same time, the politicization of international politics harbours the potential for resistance to political denationalization, which increases the need – both from a normative and descriptive perspective – for the legitimation of such international institutions.

In a recent article on the Universal Declaration of Human Rights, Lydia Liu uses the phrase ‘shadows of universalism’ to refer to the civilizational narratives that shadowed the politics of universalism in the 1940s. Attending to these shadows, Liu argues, may enable us to grasp the discursive structure of human rights in recent history, and to move that discourse in a less parochial direction (Liu 2014, 390). Liu’s remarks have relevance not only for human rights but also for broader questions of transnational legitimacy, like those raised by Anna Meine in ‘Debating Legitimacy Transnationally.’

International Journal of Constitutional Law, 2013

Ian Clark’s recent book on international legitimacy and world society resonates well with a broader research problématique that no modern social scientist can avoid. Hence, it offers well-known dualisms including among others, homo economicus vs homo sociologicus, technical environment vs. normative environment, cultural/norm-driven behaviour vs. calculus/instrumental behaviour, logic of appropriateness vs. logic of consequentiality as well as legitimacy vs. efficiency. In line with the prevailing critiques of rational choice models of political behaviour, Clark calls attention to the ‘legitimacy costs’ of non-compliance with exogenous norms. In this context, given the absence of a centralized world authority, he advances a rather interesting concept, ‘world society’ as the extraterritorial source for normative change at both national and transnational levels.

SSRN Electronic Journal, 2008