Global Democracy and its Difficulties (Challenges of Globalisation)

Global Democracy and its Difficulties

The political project of extending democracy to the global level is seen as the next major challenge for proponents of democracy. This volume considers some of the difficulties which need to be overcome for this extension to take place. The issues discussed include: • • • •

Philosophical and theoretical questions about the nature of democracy and the justification of its values Pressing political considerations, such as the crucial role of elections in democracy promotion Legal developments, such as the role of international law and judicial networks The nature of the global political space as democratization brings challenges to the ways in which systems have traditionally been organized.

Global Democracy and its Difficulties will appeal to a range of academics, scholars, and students who work across fields such as political theory, international law, comparative politics, and political economy. It will be of particular interest to those with an interest in the political, economic, legal, and moral aspects of democratization. Anthony J. Langlois is a Senior Lecturer in the School of Political and International Studies at Flinders University, Adelaide, Australia. Karol Edward Sołtan is an Associate Professor in the Department of Government and Politics, and is a member of the Committee for Politics, Philosophy and Public Policy at the University of Maryland, USA.

Routledge/Challenges of Globalization Edited by Charles Sampford and Haig Patapan Griffith University, Australia

This series seeks to make systematic contributions to international debates over two intimately related issues: •

•

The values that should inform the governance of modern states and the globalizing world in which they are increasingly enmeshed, in particular whether the liberal democratic values that sought to civilize the sovereign state need to be reconceived as global values. The institutions that are needed to realize those values, be they local, national, regional, international, transnational or global.

1 Globalization and Equality Edited by Keith Horton and Haig Patapan 2 Globalization and the Rule of Law Edited by Spencer Zifcak 3 Environmental Values in a Globalizing World Nature, Justice and Governance Edited by Jouni Paavola and Ian Lowe 4 Globalization and Citizenship The Transnational Challenge Edited by Wayne Hudson and Steven Slaughter 5 Global Democracy and its Difficulties Edited by Anthony J. Langlois and Karol Edward Sołtan

This series also includes a collection of books that explore the relevance of liberal Islamic and Western traditions of political theory to contemporary governance reform, set against the background of the need to rethink governance values in a globalizing world: 1 Liberal Islam and Western Political Theory: Beyond Conflict Edited by Wayne Hudson and Azyumardi Azra Griffith University, Australia and State University of Islamic Studies, Indonesia 2 Liberal Islam and the Public Good Edited by N. A. Fadhil Lubis and A. J. Brown 3 Liberal Islam, Democracy and Citizenship Edited by Azyumardi Azra and Robyn Lui 4 Liberal Islam and Civic Pluralism Edited by Wayne Hudson and Bahtiar Effendy

Global Democracy and its Difficulties

Edited by Anthony J. Langlois and Karol Edward Sołtan

First published 2009 by Routledge 2 Park Square Milton Park Abingdon Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business.

This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2009 Anthony J. Langlois and Karol Edward Sołtan, selection and editorial matter; individual contributors, their contributions All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Global democracy and its difficulties / edited by Anthony J. Langlois and Karol Edward Soltan. p. cm. -- (Routledge/challenges of globalisation ; 5) Includes bibliographical references and index. 1. Democracy. 2. Globalization. I. Langlois, Anthony J., 1970– II. Soltan, Karol Edward, 1950– JC423.G587 2008 321.8--dc22 2008005141 ISBN 0-203-89364-6 Master e-book ISBN

ISBN 10: 0-415-77652-X (hbk) ISBN 10: 0-203-89364-6 (ebk) ISBN 13: 978-0-415-77652-3 (hbk) ISBN 13: 978-0-203-89364-7 (ebk)

To Allan and To Margaret

Contents

Notes on contributors Acknowledgments List of figures and tables

xi xiii xv

Preface

xvi

STEPHEN L. ELKIN

1 Introduction: the difficulties of global democratization

1

ANTHONY J. LANGLOIS

Democracy and institutional complexity 2 Mature democracy and global solidarity

17

KAROL EDWARD SOŁTAN

3 From the “democracy of nations” to stakeholders-based governance systems

35

PAUL DRAGOS ALIGICA

Human rights, sovereignty and the global economy 4 Global democracy through transnational human rights

54

MICHAEL GOODHART

5 Exploring the narratives on economic globalization: making room for democracy DAVID K. MOORE

68

x

Contents

Global constitutionalism 6 Judicial networks

82

JENS MEIERHENRICH

7 The justice as diplomat: the foreign-policy frameworks behind the US Supreme Court’s new globalism

95

KEN I. KERSCH

Challenges to the democratic state 8 Trade policy openness, government spending, and democratic consolidation: a preliminary investigation

112

MICHAEL J. HISCOX AND SCOTT L. KASTNER

9 Competitive clientalism: rethinking elections in the MENA and the prospects for democracy

130

ELLEN LUST-OKAR

Global democracy and universal values 10 Liberal autonomy and global democracy

146

ANTHONY J. LANGLOIS

11 Reconceiving autonomy and universality as norms for transnational democracy

160

CAROL C. GOULD

Notes Bibliography Index

173 182 201

Contributors

Paul Dragos Aligica is a Senior Fellow at Mercatus Center, George Mason University; Faculty Fellow at the James Buchanan Center for Political Economy at George Mason University; and an Adjunct Fellow, Hudson Institute, Washington D.C. Stephen L. Elkin is a Professor in the Department of Government and Politics at the University of Maryland, and is the co-founder and Chair of the Committee on the Political Economy of the Good Society (PEGS), under whose auspices he has edited and co-edited many books. His most recent book is Reconstructing the Commercial Republic, University of Chicago Press, 2006. Michael Goodhart is an Associate Professor of Political Science and Women’s Studies at the University of Pittsburgh. He studies democratic theory and human rights in the context of globalization. He has published in Human Rights Quarterly, Perspectives on Politics, the Journal of Human Rights, Polity, and elsewhere. Goodhart’s first book, Democracy as Human Rights (Routledge), appeared in 2005. Carol C. Gould is a Professor of Philosophy and Political Science and the Director of the Center for Global Ethics and Politics at Temple University. She is editor of the Journal of Social Philosophy and President of the American section of the International Society of Philosophy of Law and Social Philosophy. Her books include Rethinking Democracy (1988) and Globalizing Democracy and Human Rights (2004), both with Cambridge University Press. Michael J. Hiscox is a Professor of Government in the Department of Government, Harvard University. His first book, International Trade and Political Conflict (Princeton University Press, 2002), won the Riker Prize in 2002. He is also the author of High Stakes: The Political Economy of US Trade Sanctions (Cambridge University Press, 2007), and, as well as teaching at Harvard, is a faculty associate at the Weatherhead Center for International Affairs and at the Institute for Quantitative Social Science. Scott L. Kastner is an Assistant Professor in the Department of Government and Politics at the University of Maryland, College Park. He studies international

xii Contributors relations, with a special interest in the international politics of East Asia. He received his PhD in 2003 from the University of California, San Diego. Ken I. Kersch is an Associate Professor of Political Science and Law at Boston College. He is the recipient of the American Political Science Association’s (APSA’s) Edward S. Corwin Award (2000), the J. David Greenstone Prize (2006) from APSA’s politics and history section, and the Hughes-Gossett Award from the Supreme Court Historical Society (2006). He has published many articles and reviews, and is the author of three books, most recently The Supreme Court and American Political Development (University Press of Kansas, 2006) (with Ronald Kahn). Anthony J. Langlois is a Senior Lecturer in the School of Political and International Studies at Flinders University, Adelaide, Australia. He was educated at the University of Tasmania and the Australian National University. Langlois is the author of The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (Cambridge University Press, 2001) and has published in Millennium, Review of International Studies, Political Studies, Human Rights Quarterly, Global Society, Politics and elsewhere. Ellen Lust-Okar is an Associate Professor in the Department of Political Science and Chair of the Council on Middle East Studies at Yale University. Her first book, Structuring Conflict in the Arab World (Cambridge University Press, 2005), examines how authoritarian elites manage political opposition, and she is currently working on a manuscript focusing on elections in the Arab world. David K. Moore teaches in the Political Science Department at the University of Northern Iowa. He received his PhD from the University of Maryland, College Park in 2003, with focuses in political theory and political economics. He is currently working on a book manuscript with the working title Ending the Retreat: Economic Globalization and Democratic Theory and Practice. Jens Meierhenrich is an Assistant Professor of Government and of Social Studies at Harvard University. He recently served in Trial Chamber II of the International Criminal Tribunal for the former Yugoslavia. He is the author of a genocide trilogy, comprising The Rationality of Genocide; The Structure of Genocide; and The Culture of Genocide (all forthcoming from Princeton University Press); and The Legacies of Law (Cambridge University Press, 2008). Karol Edward Sołtan teaches in the Department of Government and Politics, and is a member of the Committee for Politics, Philosophy and Public Policy at the University of Maryland. As well as publishing extensively on constitutionalism, he has worked for the UN (East Timor), USAID and the Kurdistan government on constitutional matters. He is currently finishing a book manuscript with the working title Deep Moderation and a New Civics.

Acknowledgments

This volume has emerged out of a conference hosted by Stephen L. Elkin at the University of Maryland in April 2006. The conference was organized under the joint auspices of the Committee for the Political Economy of the Good Society and the Key Centre for Ethics, Law, Justice and Governance, Griffith University (Australia). The volume comes to publication in a series co-edited by Charles Sampford from the Key Centre. As editors we wish to thank both Steve and Charles for their central roles in making this volume possible. We also wish to thank PEGS, the University of Maryland, the Key Centre and Griffith University for their generous financial support for the conference. Our publishers have been a pleasure to work with, and for their advice and assistance we offer special thanks to Amelia McLaurin and Heidi Bagtazo and to the external readers of the manuscript proposal. Anthony would like to thank John Kane of Griffith University for making him aware of the conference and the possibility of participating in it – one of those serendipitous moments in the coffee line at a meeting of the Australasian Political Science Association held in Christchurch, New Zealand in 2005. He would also like to thank George Crowder for reading an earlier draft of his chapter; Carol C. Gould for being a model example of how to engage in intellectual disputes in a manner which creates new friendships; Karol Edward Sołtan for his work, advice and congeniality as co-editor; Flinders University for releasing me from teaching responsibilities to attend the conference; all the contributors to the book (not least my co-editor, Karol), for being conscientious and helpful through the process of publication; and, finally, my partner Allan, for all those tangible and intangible gifts which are given when one person supports another in their endeavors. Karol would like to thank Steve Elkin for many years of working together in PEGS and other conspiracies; Steve and Charles Sampford for organizing and financing the conference; Charles for help in moving the volume toward publication; Anthony for all his work as editor; and all the authors (not the least Anthony) for providing us great material to include in the volume. Karol would also like to thank his wife (see dedication), even though she makes it impossible to use clichés in this acknowledgment (leaving him speechless), and he would like to recommend her blog University Diaries (which attacks clichés, among other

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Acknowledgements

things). Finally, Karol would love to thank his daughter Anna Livia Helena Zofia Maria Pere´swit Sołtan. The editors would like to thank the Albany Law Review, for permission to reprint Kenneth Kersch’s chapter in this volume. It originally appeared as “The Supreme Court and International Relations Theory” in Albany Law Review, 69 (2006): 771–799.

List of figures and tables

Figures 8.1

Predicted Probabilities of Democratic Failure

126

Tables 8.1 8.2 8.3 8.4 8.5 9.1

Estimation of a gravity model of bilateral imports Country Averages for Basic Country-Fixed Effects (BCFE), 1990–2000 (sorted by openness) Democratic Failures Logistic regression Penn World Tables 3-letter country codes Turnout in Recent Parliamentary Elections

121 122 124 125 128 136

Preface Stephen L. Elkin

The process of globalizing democracy is composed of at least five interlinked elements: • • • • •

creating democracies and spreading democratic practices across the peoples of the world creating good democracies democratizing global institutions maintaining existing democracies and democratized global institutions, and increasing the odds that the impact of globalization strengthens these efforts.

Each of these issues is addressed in various forms by the authors in this volume, so ably edited by Anthony J. Langlois and Karol Edward Sołtan. By way of suggesting to the reader what will be found in the essays that follow, I will highlight a salient aspect of each of these elements – the assiduous reader will find an account of the papers themselves in Langlois’s Introduction. My intention in each case is to indicate that globalizing democrats ought not be given to the kind of giddy optimism about the spread of democracy to be found in those political circles in the world’s leading power, where pretensions to intellectual sophistication have found their soulmates in political figures of equal understanding. And now to the elements themselves. Perhaps the most important aspect of democracy creation – highlighted for the world to see in contemporary Iraq – is that it is very difficult to do. If it weren’t, it is reasonable to suppose that there would be a lot more democracies. Regardless, creating democratic regimes involves doing at least three things: promoting certain kinds of citizen virtues, designing appropriate political institutions, and working out mechanisms to balance the major social forces. As suggested, it is not easy to do any of these. Attempting to do all three, especially in a short period of time, is folly. Our real goal – not widely noted – ought not to be the mere promotion of democracy creation, but the much more difficult task of creating good democracies. In part, this is a matter of understanding that elections, while a necessary part of a well-ordered democracy, don’t in themselves bring good government into being. For a start, they may simply raise the stakes of political conflict, as one or

Preface xvii another major social force concludes that it is bound to lose an election and thus be vulnerable to the ministrations of its enemies who will have the prestige and the power of the state at their disposal. Put another way, all good governments have limits on what they may do and this includes rule by the people. In a good democracy, the people – or, more to the point, the parts of the people that rule for the moment – cannot rule as they please. How to get them to limit themselves (if anyone else can it is not rule by the people) is no small matter. The project of democratization, it is worth remembering, isn’t only concerned with marrying democratic rule to the state. For many, it is at least as important to see that the global institutions which have grown up in recent decades, and that those that will be created in the future, give life world-wide to democratic values. So far, this has mostly meant pushing for global institutions to foster the rule of law, human rights and judicial independence – and working to create new institutions that add to the effort. A central question here is: to what degree it is it a good idea to create transnational institutions that are, loosely, judicial in form – to center our democratizing efforts on courts and institutions that act like them? This is not merely a matter of the value of states as political forms, although there is a case to be made here. Perhaps more important is to notice the absence of any equal effort to create institutions that create a more attractive global politics. It might be said that we are in danger of recreating on an international scale the domestic effort in advanced democracies to secure the supposed distinction between law and politics – and assuming that if we have the first, then the second is not very important. What Judith Shklar called “legalism” is a horse to be ridden by those who think the terrain ahead is lush, the natives friendly. The remaining questions can be quickly dealt with since what needs to be said is clear enough. All political institutions are subject to corruption and decline, so successful efforts to globalize democracy require strategies for maintaining what is achieved. Given the inevitable proclivity of public officials and political leaders to focus on the short term, holding on to democratic gains requires the equivalent of going often to the gym. The waistlines of Americans, at least, do not suggest optimism in either the weight or the democracy department. As for globalization, a subject much discussed but which does not seem to lend itself to pithy comment, it is worth noting that with the supposed spread of neo-liberalism has come some of the very things that thoughtful democrats wish for, not least the rule of law. A globalized world is unlikely to be composed only of hamburger flippers and investment bankers. The thoughtful reader will find much of real interest on these matters in the essays that follow. It only remains to say that the papers in the volume were first given at a conference jointly sponsored by the Committee on the Political Economy of the Good Society (PEGS) and the Key Centre for Ethics, Law Justice and Governance at Griffith University. The volume itself is one in a series sponsored by the Key Centre and will be the fourth to be published by PEGS in its series on The Good Society. These are: A New Constitutionalism (Elkin 1993), The Constitution of Good Societies (Soltan and Elkin 1995), Citizen Competence and Democratic

xviii Preface Institutions (Elkin and Soltan 1999) and Universal Values in Politics (Simon and Elkin forthcoming). Stephen L. Elkin Chair, PEGS University of Maryland

1

Introduction: the difficulties of global democratization Anthony J. Langlois

It may be safely claimed that democracy has a secure place in global politics as the leading normative framework for governing people. This should not to be confused with the suggestion that the global population is seamlessly moving towards democratic rule. One of the main themes of this volume, as our title suggests, is that movement towards democracy at the global level is difficult. It faces many obstacles – ideologically, practically and intellectually – indeed, the question of what it means to move towards “global democracy” is one that has no definitive answer. Nonetheless, the idea of democracy has come to play a crucial role as a legitimizer of political rule around the globe, to the extent that even those regimes which have no intention of acting democratically adopt the language and many of the external trappings of democracy. Such exhibitions are cold comfort to those who exist under degrees of authoritarian rule. But this phenomenon is a significant if perverse indicator of the power of the democratic idea – an idea which goes back to noble and foundational beliefs about the equality of all persons, and their right to live freely and on their own terms in equitable and peaceful relationships with their neighbors. However, talk of democracy is cheap and often does not recognize the difficulty of achieving and maintaining a democratic society. Nor does talk recognize the difficulties that will face any society which wants to transition to a democratic form of government or, indeed, which has such a transition imposed upon it from the outside. The platitudes of democracy are very easy to articulate – whether those doing the talking are presidents or prime ministers, NGO representatives, academics, global bureaucrats or others. By contrast, building institutions, effecting cultural change, providing justification for changing ways of acting and thinking, educating people, securing the material resources necessary for democracy, sustaining the impetus for reform in adverse conditions – these tasks and the many more that are necessary for genuine and lasting democratic change are hard tasks of the first order.

Three challenges for global democracy Despite democracy’s status as a normative framework for government and governance, there is, nonetheless, a very significant set of ideological or public

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relations challenges that must be faced. For many people, the abstract arguments about the virtues of democracy win the day without question. And yet, both within many established democracies and in discourses of international politics, there is much skepticism about the practice of democracy. In many states that are considered leading democracies – for example, the United States, the United Kingdom and Australia – there is considerable concern about the extent to which citizens are alienated from democratic processes. Voters are said to be apathetic and disengaged. Arguments are made about the way in which forms of corporatism and cronyism have taken politics away from the people. In many critiques, the presiding mass consumer culture is said to play a key role in reducing the citizenry to a pacified and dim-witted collective pawn in the hands of rich and powerful elites. To the extent that people think about their political representatives, they think of them as captive to various powerful actors, distant and untrustworthy – far from the democratic ideal of citizens’ representatives engaged in deliberative processes of democratic self-government. In global politics there is an equally marked contrast between the way in which democracy is praised as a norm, and the skepticism about the meanings of the term and the motives of those using it in the day-to-day practices of the international arena. We could consider, for example, the role of democracy in such international organisations as the United Nations. For many observers, the ambiguities associated with the role of the UN in international politics make any attribution of democracy farcical. On the one hand, there is the problem that many member states are not themselves democratic. On the other hand, there are complex institutional questions about what a genuinely democratic UN might look like – for example, the question of how we should deal with the conflict that is set up by the democratic “one state one vote” framework in a context where states are not even remotely equal in population size. China and India have populations of well over a billion. Some states with equal voting rights on the floor of the UN General Assembly only have tens of thousands of citizens. However, such institutional questions will remain for many a moot point for as long as the internal governance mechanisms of individual states are not structured according to democratic principles. We must also reflect on the international politics and policies of states that are internally democratic. Such a discussion cannot be held at our historical juncture without consideration of the contemporary Iraq war – a war that has been given post hoc justification as a war of liberation from authoritarianism, a war to bring democracy and human rights to the beleaguered people of Iraq. At the time of writing, the war in Iraq is not going well. The new democratic government is unable to govern the country, and fails most standard criteria for democratic legitimacy. The “democracy” which Iraq now experiences is a public relations horror story for the legitimacy of democracy and Western democratization efforts not just in Iraq, but also elsewhere in the Middle East and even globally. Regardless of the arguments for and against the war, Iraq has become the latest and perhaps – given recent developments in global communications trends – the most significant ideological war zone for ideas about the desirability of democracy. One of the

Introduction

3

war’s most damaging effects has been the way in which it has aided and abetted those who set out to discredit democratic forms of political association. Of the difficulties faced by those wishing to persuade people of an alternative democratic way of governing, the winning of hearts and minds has become that much more challenging because of mistaken policies on the part of those who, in name, are the world’s leading exemplars of democracy. A second key set of difficulties for global democracy has to do with the practicalities of creating and managing transitions to democratic practice. Democracy is a great and noble idea, but it is not something which can be effected overnight. A functioning democracy is a very complex web of institutions, and these have to be formed and crafted – a word used advisedly here, because of its connotations of time, effort and care. Yet more fundamentally, a democratic society is one made up of people who, both individually and collectively, know how to utilize their democratic institutions to govern themselves. In a context of transition, in the very best of circumstances, people need education, information and cultural change in order to move from one set of governance arrangements to another. Transitions to democratic forms of organisation do not take place in a vacuum. Context is a key variable for the success or failure of reform efforts. The fortunes of democratic reformers and the continuing viability of achieved reforms are tied very closely to the circumstances of individual cases. It is very difficult to provide formulaic generalizations to the effect that this or that set of policy prescriptions will foster democracy without also being closely attentive to the broader political, social, economic, religious and cultural context. From this point of view, democracy is a very fragile affair. An example that demonstrates this vividly is the situation of East Timor – the world’s newest state, and one born out of intense violence following years of authoritarian occupation by Indonesia. While the will for democracy in East Timor is strong, it is nonetheless the case that this small, desperately impoverished nation, relies fundamentally on the support of others to maintain itself economically and socially. It is dependent on the international community through organisations like the UN, and through direct support from countries like Australia (police and military resources, for example, have consistently been sourced from Australia). There is a constant threat of destabilization – the realization of which would, in all probability, see the end of the hard-won democratic freedoms that the East Timorese presently enjoy. The earlier example of Iraq is also a case of the practical difficulties experienced in a transition to democracy. The most salient feature of the situation in Iraq, on this point, is the apparent lack of prior engagement by US authorities with what it would mean to transition Iraq from being an authoritarian dictatorship to being a fledgling democracy. It is not an overstatement to say that the Bush administration appeared to think that a whole society could be seamlessly transformed into a middle-America style democracy once the regime in Baghdad was toppled. This form of idealism fails fundamentally to understand that the effective functioning of a democratic polity is based on a foundation of social capital and institutional design which has been painstakingly fought for and maintained against the many socially corrosive features of the broader political landscape. As I indicated earlier,

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many social scientists express concern that these socially corrosive forces are operative in well established democracies. The task, then, of establishing effective democratic institutions in societies which do not have a history of successful democratic organisation must not be underestimated. A key issue to be considered in the practice of democratic transformation is the broader international environment. Social capital and the willingness of populations to embrace democratic reform are crucial factors. However, the presence of these factors can be undermined by outside forces. Global political and economic structures are of great significance here in providing an environment which will be conducive to democratic success. But such structures are notoriously hard to change, and often provide perverse incentives for ambitious people to sidestep democratic processes. These incentives may undermine democratic reforms even in the pursuit of what would seem to be the legitimate interests of many societies, societies which are struggling to secure their survival while simultaneously desiring to hold on to hard-won democratic institutions. It is in trying to work out how to deal with many of the practical problems which face the political project of global democratization that one realizes the crucial nature of the intellectual or theoretical problems which are involved with the task. One way of seeing this is to consider what model people have in mind when they think of global democratization. The most common model, perhaps, would be that which is built upon our experience of how international politics is presently institutionalized. The global population is divided by fate and coincidence into nation states, some of which are democratic, many of which are not. It’s a simple step to see global democratization as consisting of changing the governance mechanisms for those states which are not democratic. The Iraq war fits snugly into this way of thinking. While it is desirable for those states which are not democratic to become so, the task of thinking about global democratization has become immeasurably more complex than this picture suggests – it is a picture which fails to engage with the extraordinary changes to global politics which have been wrought by globalization. The fundamentally important intellectual challenges for democratization concern establishing what sort of model should succeed the older state-centric or Westphalian model of international relations. This challenge is brought about by a recognition that the structures of international politics have undergone radical change in recent decades as the process of globalization has entered new and unprecedented phases. The interesting questions concern how we should apply the ideas of democracy to the new and often very different institutional, social, economic, cultural, religious – and above all, and embracing all of these – political forms of our contemporary period. Many of the issues which confront proponents of global democratization, then, are not just about how we deal with and mitigate the effects of anti-democratic, illiberal regimes. They are also about to what extent, and in what fashion, we might be able to extend the idea of democracy to the features of governance – as well as those of government – which exist in a globalized world. Here we are faced with very complex practical problems which, very quickly, also become complex

Introduction

5

intellectual puzzles. The very complex patterns of governance and interdependence which have grown up in a globalizing world make many of our conceptions of democracy redundant. Arguments about democracy can no longer be based on a model where a whole range of self-governing states cooperate together about how to manage those decisions which mutually affect one another. In today’s world, many key decisions being made by non-state agents in one part of the world affect large numbers of people in another part of the world. Traditional notions of statebased parliamentary democracy have little purchase on the fates of these people, even were they all to be living in democratic regimes. Any advance in the political project of global democratization will have to be an advance grounded in a significant and ongoing intellectual reappraisal of that task. Intellectual sobriety is always needed to avoid the ideological pitfalls that can beset the political project of global democratization. The practical work of promoting global democratization, however, very clearly gives rise to complex theoretical questions, and these questions need to be subject to significant debate and discussion in order for the best way forward to be developed. This book has been written with the hope of fostering this sort of debate.

Discussing the difficulties of global democracy Now we will discuss some key questions which arise when considering the challenges of global democratization. The questions that we will consider are grouped into a number of sections. These range from specific arguments about the difficulties facing the international system as a whole and those difficulties arising for individual states, to discussions of the most fundamental kind about the philosophical underpinnings and justifications of global democracy and associated norms and values. Democracy and institutional complexity Karol Edward Soltan begins this volume with a visionary statement of what we should be aiming for when we discuss the concept of global democracy. Soltan argues that global democracy itself is not sufficient. To be attractive and sustainable, global democracy must be structured by additional characteristics, and these are derived by Soltan from his idea of moderation. Moderation includes three key elements: a form of moral pluralism; an orientation which recognizes the power of human destructiveness and positions itself to overcome this destructiveness; and a commitment to reason, with the corollary that deliberation is a key means of progress. This idea of moderation is militant in that it has ambitious intellectual and political goals: the advance of global democracy. Is this a realistic prospect? Soltan does not deny that this is a tall order, but he argues that his concept of a mature democracy helps to make this project feasible. A key element of what it means to be a mature democracy is a movement from the simple to the complex. If we imagine global democracy along the lines of a classical simple demos with straightforward group solidarity and majori-

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tarian decision-making, then clearly there are insurmountable obstacles to global democracy. Soltan argues that many of our discussions about global democracy do proceed on these terms – as if the simple demos is the only possible demos. By contrast, he encourages us to allow for complexity – of institutions, of procedures, and of demoi. These forms of complexity are to be wedded with an idea of complex global legitimacy, an idea which reflects the complexity of democracy in modern constitutional democratic states. At the center of the practice of these states – and Soltan argues that this should also be at the center of normative understandings of complex democracy – is the process of the delegation of decision-making. Delegation is driven, he argues, by an imperative for legitimacy enhancement and this, in turn, is responsive to the complex forms of social organisation which exist both within states and also at the international level. Soltan argues that the trend towards delegation can be seen everywhere, both within states and at the international level, and he argues that it can usefully be seen as part of a movement towards a moderate politics. This moderate politics is to be supported by a cultural transformation of modernity that would enhance civic forms of solidarity. Soltan calls for the development of a universal civilisation which would be a pluralistic mosaic of legitimate ends underpinned by a complex system of institutions which, in turn, honors the values formulated in human rights declarations and similar global documents. Soltan recognizes that such a goal requires a political instrument. Here he has in mind a globally organized self-limiting social movement, on a broadly Gandhian model, which he terms Global Solidarity. This movement would have as its goal resistance to the forces of human self destruction; it would be incrementalist in method, and would aim to harness reform pressures from below and above – the embodiment of moderation. Global Solidarity would be self-limiting in that it eschews violence, and is thus absolutely prohibited from taking political power. Soltan concludes by considering again the question of whether this is a realistic aspiration – whether such an organisation might have any chance of existing. He does this by considering the similarities and differences between his proposal and the already existing organisation the World Social Forum. He concludes that among these seekers of an alternative world to the one we now have, the moderate style of global democracy promotion seems weaker than desirable. Paul Dragos Aligica reminds us that thinking about democracy in a global world is a task which must be future(s)-oriented. He counsels us to self-consciously speculate about the future with “the long view”, a macro-sociological heuristic device which can help provide a stable historical interpretive framework for our proposals regarding global institutional developments and reforms. Democratization is one of the tendencies that is interpreted through the use of “the long view”; Aligica focuses his study of democratization around the notion of a “democracy of nations”, a notion which has functioned as a key ideal in international relations and one which generates restless efforts to institutionalization. The long-view framework shows us that this ideal is a construct of modernity, not at all a natural state of affairs, and helps to raise important questions about the viability of the ideal;

Introduction

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these questions can have implications for how we might push for institutional development in the present. Aligica argues that the “democracy of nations” ideal, while being a key structure in thinking about international affairs, is not necessarily as viable as has often been thought. A key part of his argument is the way in which the ideal clashes with many of our other key ideas about the international arena – in particular, the asymmetry which exists between states, and the role of power in international politics. He develops his analysis by drawing on the work of Mitrany, who characterizes international politics as a realm of legal principles which are never practiced and actual practices that have never been legalized. Aligica argues that contemporary developments, especially the role of the United States as sole superpower and hegemon, push these tensions to an extreme and also endanger the capacity of national and international institutions to deal with them. The situation, however, is more complex than this dichotomy suggests because of the rise of actors and institutions other than the state – the state is no longer assumed to be, in either theory or practice, the optimal form of social organisation or the ultimate locus of decision-making. This development simultaneously has two effects. One is that it opens up the possibility of new avenues for the idea of democratization in international politics, avenues via new forms of governance, regulation, accountability and institutional design. The second is that it makes the hitherto key notion of a “democracy of nations” even less likely to find institutional form than in the past. That idea, argues Aligica, has been exhausted. He suggests that we live at a critical juncture where the institutional imagination may be able to make a difference. This means that, rather than continuing to muddle through with legal fictions and political realities which never meet, we may be able to take hold of the new forms of political community which are developing and mould them in such a way that democratic principles are institutionalized in the evolving international arena. Democracy, sovereignty and the global economy With the contribution from Michael Goodhart we move to considering the ways in which globalization provides imperatives for reconceptualizing the practice of democracy. Goodhart suggests that most of our familiar ways of thinking about democracy at the global level have a shared failing: they continue to operate in a conceptual space which is shaped by the modern nation state. Goodhart recognizes that the literature on global democracy is voluminous and that many authors have contributed important institutional models for how democracy might work at the global level. His critique, however, is that while these models have registered the need for institutional innovation and development, this work is still being done in a normative context structured by the modern sovereign state and the Westphalian state system. Goodhart takes us through three steps in making this argument. Firstly, he is concerned to be clear about the connection between democracy and sovereignty. While many theorists view this connection as merely contingent and empirical,

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Goodhart argues that the development of democracy within the conceptual matrix of the modern nation state means that our key normative ideas associated with democracy are fundamentally shaped by sovereignty – modern democracy, says Goodhart, is a theory of sovereignty, lexically demonstrated by the use of the term “popular sovereignty”. The advance of globalization, however, undermines many of the empirical regularities and normative structures associated with sovereignty, including those which cause us to think of democracy as expressing the collective popular will of sovereign citizens of a given territory. Goodhart argues that we should abandon attempts to re-theorize this view of democracy within the context of globalization. Instead of focusing on ways of securing popular control over sovereignty in the global context, he argues that we should go beyond sovereignty and focus on the norms involved with democracy, i.e. freedom and equality. This second step in his argument leads Goodhart to affirm human rights: they exemplify an emacipatory tradition within democratic theory which should be reinterpreted to suit an age of globalization. Democracy as human rights is Goodhart’s shorthand phrase for this new reinterpretation of democracy which is built around an explicitly political commitment to ensure universal emancipation via a global framework for human rights. How this would work is the concern of the third step of his argument: Goodhart suggests a transnational human rights regime modeled on, inter alia, the European Court of Human Rights. The regime would be structured by a series of supranational courts and commissions which would be regional in jurisdiction. These would hear individual complaints about human rights violations, would oversee human rights impact assessments, and would have independent investigative powers. Goodhart argues that the authority of such courts would be derived not from an electoral mandate – this is too closely linked to the democracy as sovereignty model – but rather from their role in protecting and promoting basic rights. Goodhart also argues that the key for global democracy is not global institutions for decision-making, but rather that the decisions which are made are consistent with fundamental rights. It is in this way that a global human rights regime promotes democracy: it limits the exercise of power, it requires that the exercise of power be conducted in ways consistent with equality and freedom for all, and, by so doing, it supports and promotes democracy and democratization within states. The question that concerns David K. Moore is whether the mainstream narrative about global economic openness satisfies the standards that need to be met in order for citizens to have sound information on which to base democratic decisionmaking processes. Moore’s answer is that this economic discourse is deficient, that there is a failure by international economists to pay attention to the role and place of both power and normative evaluation in their own discourse. Moore is concerned that contestable normative claims, debatable economic models, and interpretations of states of affairs are all often represented as uncontestable givens, and that the power play which such representations involve is frequently hidden or neglected in the analysis which takes place within the discipline. Moore begins his analysis by disputing the representation of economics as a neutral, objective science. Rather, he argues, economics is a science which is

Introduction

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constructed around a core set of normative assumptions, the key one being the idea that efficiency is the standard for judgment. Efficiency is taken to be a self-evident good, one that may be legitimately applied to all human economic activities. Further assumptions structure the consequences of the overriding ideological commitments of the discipline – such as assumptions about the way in which individual members of an economy may be aggregated. Moore argues that these assumptions allow economic models to posit that individuals within economies who end up losing out, will be compensated via the aggregate benefits to society of any given change. What such assumptions neglect are the politics of the distribution of such aggregate benefits and the way these relate to the distribution of power in society (extending to the power of the economists who posit the models for social change). The assumptions that are made about the nature of international markets relate directly to the question of power and its distribution. The rhetoric of the free market and perfect competition are not consistent with the realities of international trade. These markets are usually imperfect, and are better considered using a range of other models (for example, monopolistic competition, oligopolistic trade, or even bureaucracies) where the maximization of power and position, not efficiency, is the real value being applied. Critical here is the impact of the international tax game and the role of government trade-related subsidization. Another area in which the question of power needs to be considered when discussing the role of capital is international economics. Efficiency is used as the justification for the increasing ease with which capital flows around the world. What is less often considered is the way in which capital mobility increases the power of the owners of capital. Again, while a given society may be said to benefit in aggregate from such efficiency-inspired changes, a more complex story can often be told about the distributions of costs and benefits within that aggregate – a story with a moral that may be concerning for those whose overriding political interest is the well-being of democracy. Finally, Moore’s concern with power extends to the role of the state, to the way in which the power of the state is used to construct key characteristics of markets. Moore considers the way in which trade depends on transportation costs, costs which are often politically determined by way of taxation or infrastructure spending. This is a good example of the way in which political decisions can determine which parties pay for which transactions. Moore’s point is that when economists talk about notions such as comparative advantage, we must be aware that all such advantages are at least influenced by the political environment in which they are evaluated. A democratic audit of international trade policy will require transparency about the way in which comparative advantage is construed; this will guard against the abuse of democratic rights, and so ensure that notionally “objective” economic sciences do not end up illegitimately and undemocratically serving the neglected and hidden power interests of the already economically powerful.

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Global constitutionalism Jens Meierhenrich begins his contribution to this book by wondering whether we are on the road to “a brave new judicial world.” The concern here – arising out of a set of assumptions about the nature and role of epistemic communities – is that judicial interaction across national boundaries in an increasingly globalized world has led or is leading towards the existence of a global jurisprudence. In this chapter, Meierhenrich takes up the phenomenon of judicial networks, and engages in a critique of the way in which they have been theorized within the scholarly literature of international law. In particular, Meierhenrich focuses on the account of Anne-Marie Slaughter. Meierhenrich argues that the study of international law by the application of social network analysis has the potential to offer an insight and understanding that is often missed by other standard analyses. Yet, he argues, the resulting international network analysis has been disappointing. The two forms of analysis share important assumptions: that networks are central to an ever-increasing sector of international social life; and that the sort of relations considered by the analysis are equally (if not more) important for international governance than other types of relations, such as those represented by market and hierarchies. Slaughter’s work in international networks amounts to a forceful application of these (and other associated) ideas to international law. Meierhenrich finds that Slaughter’s work is rich as a suggestive account, but insufficient as a positive analysis of the role of networks in international law. He criticizes her work (and that of her followers) for not applying the analytical tools of social network analysis, and for not developing an account which is able to consistently explain the life cycle of the judicial networks in question. Network models have been advanced, which may be argued about on the basis of plausibility or probability, but a systematic examination has not been undertaken of the relevant relational data. Having provided this general critique, Meierhenrich proceeds to look at three specific types of networks in international law: information networks, enforcement networks and harmonization networks. To consider information networks, Meierhenrich examines Slaughter’s example of networks of constitutional courts. The enforcement networks considered include the International Criminal Police Organisation (Interpol) and the Trevi Group (a now defunct sub-group of European Union States). And the harmonization networks include a wide variety of mutualrecognition agreements – agreements designed to bring one nation’s laws into line with another’s in a specific field. Having looked in some detail at these three different types of networks, Meierhenrich concludes that they are far more heterogeneous than is often recognized, that their role in international governance is not as significant as is often assumed, and that the networks, by virtue of their diverse natures, cannot be coordinated in any simple or straightforward manner. Meierhenrich concludes by placing the discussion of judicial networks into both historical and normative contexts. He argues that, in relation to history, such networks have a longer pedigree than is often realised, and, in relation to norms, that the costs of these networks must be examined as much as their alleged benefits.

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In particular, Meierhenrich identifies the issues of technocracy and transparency as concerns which have not yet received adequate attention in the literature on the topic. It has become common for judges around the world to consider themselves members of a “global community of courts”. In his chapter, Ken I. Kersch examines this phenomenon with reference to the United States Supreme Court, and he presents an argument which suggests that, in order to understand this “globalist turn”, we should take heed of what the justices themselves say about this matter. It has often been the case, argues Kersch, that academics, in particular, have sought to understand this movement in the context of interpretive theory – a natural reflex, given the nature of their discipline. However, Kersch continues, much is to be gained by also looking at the justifications which are given by the practitioners themselves – and there is no shortage of material, justices being quite prolix about their reasons for their justifications. Kersch argues that once one starts to take justices at their word about their globalist turn and their engagement with the international community of courts (which crucially includes their engagement with the issues and problems these courts deal with, not just their formal structures or professional relations), then the key trend one notices is the role played by various understandings of foreign policy. Kersch posits that the development of American constitutional doctrine over the coming decades could well be strongly influenced by the foreign policy visions held by United States judges – to the extent that some of these visions may influence the way in which judges conceptualize their judicial role. In order to develop this thesis, Kersch then takes us through what are often considered to be the three dominant foreign policy visions as they are standardly articulated by international relations scholars. These explications are followed by illustrative taxonomies of statements by justices which show the relationship between the foreign policy vision and the justices’ conception of their own roles and responsibilities. The three dominant paradigms of international relations are realism, liberalism and constructivism (or idealism). For realists, states are power-maximizing, interest-seeking entities; the international world is a world of realpolitik; the realm of international law is seen as yet another arena in which powerful states exert their influence over the less powerful (to the extent that it is taken seriously at all). Apart from perhaps conceptualising judges as agents of the state, realism as a theory has no natural place for a globalized judiciary. This kind of agency sits uncomfortably with realism’s theoretical categories, and is most likely to be seen as insignificant or beside the point. Liberals, however, take a very different view. Liberals support democratization, international law, and global institution building, and so a globalized judiciary is an “unalloyed good”, a welcome support in the task of creating a liberal international order populated by stable, democratic states. With such a vision of foreign policy, justices may understand their roles and responsibilities as akin to those of diplomats. Similarly, constructivists (idealists) generally building on a liberal normative agenda, having as their agenda the manner in which the construction of preferences affects behaviour. The process by which

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role redefinition takes place is a central focus here, and the use of human rights norms in “naming and shaming” dynamics are key examples. Kersch does not mean to claim that the United States’ judges have suddenly become international relations theorists; but rather, that popularized versions of these global visions enter the awareness of judges, who then feel compelled to use their role to help the United States be a global leader, rather than a “moral laggard” – being active in the global community of courts is seen as one key way of contributing. Indeed, from the point of view of legal pragmatism as well, if in a global world similar problems are being faced in diverse jurisdictions, then much can be learnt by way of cross-fertilization. Thus, whether one endorses a global liberal norm, or one merely holds a generous and pragmatic “aid and assist” stance, there seems to be a move towards problem-focused, transnational policy networks. And these, moreover, generally transcend partisan cleavages. Kersch’s account is generally descriptive of the phenomenon of globalized courts – he has written critically of the turn in other places; nonetheless, he argues that these broad ideological visions drawn from foreign policy and international relations, taken together with what justices say they think they are doing, are essential components in an accurate understanding of the nature of these changes in United States constitutional doctrine. Challenges to the democratic state Michael J. Hiscox and Scott L. Kastner begin with the observation that trade policy can be a divisive and difficult issue within democracies. In a nation like the United States, the majority of middle-class voters have two issues on their minds when they consider trade openness: the availability of cheap consumer goods, on the one hand, and, on the other, the question of their own job security. Hiscox and Kastner observe that fear associated with the risk of job loss is quite high among the electorate, even though the actual incidence of job loss is likely to be low. Fear is exacerbated by high risks associated with the absence of adequate social insurance policies. By contrast, most people benefit significantly from trade openness through access to cheaper goods. In an established democracy like the United States, the executive government needs electoral popularity, and so concerns about trade policy among the electorate are likely to lead to changes in policy. In states where democracy is less secure, Hiscox and Kastner argue, a similar combination of trade openness and inadequate social security may leave democratic government significantly vulnerable to failure. Hiscox and Kastner draw on research which stresses the political dynamics involved in the relationship between economic openness and democracy. They then extend the work of Adsera and Boix on the relationship between government spending, trade openness and regime type, to apply this relationship to regime stability. Here, their argument is that in weak democracies which are maintaining a policy mix of trade openness and little social insurance, anti-democratic measures may be taken in order for free-trade interests to maintain trade openness without

Introduction

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having to engage in the forms of social redistribution which may be called for as a result of global economic downturns and the like. Hiscox and Kastner take two approaches to substantiating this argument. The first is to offer a limited number of historical cases. They start by arguing that stable democracies have been characterised either by trade openness combined with high levels of government spending, or, alternatively, they have been characterised by limited spending and limited trade. The experiences of Britain, the United States, Australia, New Zealand, Scandinavia, Spain and India are cited as support for this observation. On the other side of the ledger, the experience of democratic breakdown in Argentina would seem to support the argument, although another well known case, Chile, seems to be less salient. The second approach taken is to turn to quantitative research. Here Hiscox and Kastner model the likelihood of transition from democracy to autocracy using a given sample of democracies. Measures are devised for government spending and trade openness, and these are applied to a sample of 45 democratic countries covering a time period from 1960 to 1990. The measures and variables used are combined in different ways to ensure the veracity of the outcomes. In all cases, the outcomes led the authors to a confirmation of their hypothesis: that democracies which are open to trade and limit government spending on social insurance are more prone to failure than other democracies. Elections are usually taken to be one of the key signs that democratization is in process. Ellen Lust-Okar argues, however, that we must be wary of the view that elections are catalysts for democratization. Lust-Okar examines legislative elections in the Middle East and in North Africa. On the basis of these examples, she argues that, in these contexts, the elections should be thought of as “competitive Clientalism”, a form of competition for access to the resources held by the state. These elections provide a mechanism for relatively benign rule via the institutions of the state, and parliaments tend to be pro-regime because of their clientist complicity. These conclusions alone would suggest elections in authoritarian regimes are ineffective for the promotion of democracy. Lust-Okar goes one step further, to argue that such elections can be counterproductive. She argues that little attention has been paid to the politics of these elections – the elections tend to be viewed as precursors to more authentically democratic elections, a step in the right direction. Lust-Okar argues, however, that if we examine the politics of these elections and analyze their roles as competitions about patronage in an environment that lacks alternative government, then we come to quite different conclusions about the consequences of such elections for the democratization process. Such competitive patronage elections, once institutionalized, may in fact hinder the chances of regime change and reinforce anti-democratic institutions and political cultures. After looking closely at the role of elections, the behaviour of candidates, the activities of regime elites, the attitudes of citizens to the electoral process, and party membership and activism, Lust-Okar concludes that the politics of elections generally serve to co-opt the electoral process on behalf of the regime. Again, one of the key factors in this process is the role of patronage distribution which is played by those who end up sitting in parliaments.

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The consequences of such conclusions may be played out in two ways. One is internal to the authoritarian countries themselves. Here, Lust-Okar argues that democratization depends heavily on parliaments moving away from the patronage model and being prepared to engage more in policy-making. This move may find some hope in increasing levels of development, which reduce people’s dependence on patronage, or through economic crisis, which may more abruptly discontinue patronage mechanisms and upset established patron-client relationships. The second way in which the consequences of Lust-Okar’s conclusions may be played out concerns international democracy promotion programmes, such as those engaged in by the United States’ Government via agencies such as USAID. LustOkar argues that giving assistance to political parties within authoritarian regimes may not have the intended effect. Rather than funding the development of a civil society capable of dissent through democratic institutions, donors may find that they are inadvertently providing an additional source of patronage. Lust-Okar concludes by arguing that elections in authoritarian regimes can help in the push for democratization, but only under quite specific circumstances, i.e. circumstances which crucially include the decline of the authoritarian regime’s capacity to distribute patronage. Global democracy and universal values Our book concludes with a debate over the way in which democratic norms and values should be theorized, the debate centering around recent work by Carol C. Gould on global democracy. It begins with a contribution from Anthony J. Langlois, which is critical of the framework that Gould articulates in her recent book Globalizing Democracy and Human Rights, and this is followed by a response from Gould which uses Langlois’s critique as its starting point. Langlois argues that democracy and human rights depend centrally for their theoretical justification on a strong concept of liberal autonomy. He is concerned that, in her recent book, Gould joins too closely with those who have criticized this foundation for democracy and human rights. Furthermore, her argument for a reconceptualisation of democracy and human rights that would not be so dependent on traditional liberal strategies, ends up undermining her goal of defending them. Gould argues that we need to invoke a new form of universality: one which is not so biased towards the West, one which avoids the essentialism of traditional liberal theory, and one which is concrete and not abstract. Langlois is critical of the way in which Gould has articulated a harmonization of tensions between these, and contends that any account of democracy or human rights is going to depend on a strong account of liberal autonomy, whether it is implicit or explicit. For such an account of liberal autonomy to be successful, its justification is going to involve abstract, essentialist and universal claims. Langlois argues that we should not be apologetic about this; he suggest that it is mistaken to attempt to construct theoretical approaches which downplay the role of liberal autonomy in the belief that this will either make them more universal or more acceptable in a global world. Langlois argues, however, that this is the strategy that Gould has used.

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Langlois argues his case against this strategy by examining Gould’s articulation of it, and showing why he thinks it fails to meet the objectives that Gould has for it. Langlois closely examines Gould’s argument for a reconceptualisation of democracy based on what she calls a concrete form of universalism. This is contrasted with what Gould criticises as being the more abstract forms of universalism which characterize the liberal philosophical tradition. Gould criticises abstract universalism for being essentialist, for universalizing western conceptions of norms, and for its failure to accommodate historical and social differentiation among people and peoples. Instead, she argues for a concrete universalism which would be grounded in a social ontology and which would emerge out of the interactions of cultures. Langlois argues, however, that even in her own elaboration of how this concrete universality would work, Gould needs to appeal to the tradition of which she is critical, in order to give her own theories philosophical traction. Langlois concludes that while Gould’s approach is important for alerting us to some of the inadequacies of traditional arguments, her strategy itself is inadequate as a means of promoting and supporting democracy and human rights in a global world. In her response to Langlois’s critique, Carol C. Gould emphasizes the nature of the concrete universality she wishes to defend, and, in particular, its emphasis on difference and relationality. She believes that this emphasis is central to the task of establishing human rights and transnational democracy. Gould explicates this concrete universality, clarifying its basis in the equal freedom of individuals. The freedom and equality referred to here, however, are differentiated from those traditionally identified with liberal concepts of autonomy. Nonetheless, Gould argues that her account still preserves what she says may be regarded as a liberal moment. The first two sections of Gould’s contribution concern her argument that justice should be conceptualized as equal positive freedom. Gould argues that Langlois offers a straw man argument against her, by failing to recognize the central way in which equal agency is articulated in her approach. Gould argues that rather than accepting the liberal individualism she believes Langlois recommends, a new kind of liberalism should be adopted, one which is derived from her theory of justice as equal positive freedom. She argues that liberal individualism has been critiqued by a range of theorists and that there is a strong movement towards accepting social accounts of individual agency and autonomy. On the strength of this, Gould offers a summary of the way in which such social accounts differ from traditional individualist approaches. She argues that agents are constituted by their relations; that they are transformed and transform themselves over time; that agency is engaged through material conditions and requires recognition from others; that agency is often collective; and that agency is a positive, not a negative, form of freedom. Gould argues that a variety of other claims about equality and recognition follow from this. These include the manner in which equal recognition is an ongoing historical process: it cannot be effective without the material means for transformation, and so economic and social rights play a key role. Similarly, she argues for historical and cultural variability, and

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the need for intercultural dialogue in establishing this freedom. There is no single model, as in classical liberal individualism. In the final section of her paper, Gould turns to the issue of concrete universality. Her argument here is that concrete universality plays a more important role than the one Langlois suggests – that it does not merely account for the sociological emergence of universal norms, and thus remain subservient to the normativity of abstract universalism, but that it plays a key normative role of its own. The effects of communication and interaction (from, say, globalization) do not just spread norms; they also play a role in the way these norms are constituted, expanding normative structures and making them more solidly grounded. Gould argues that this reinforces the need among Western theorists to keep their interpretations of basic norms and normative structures open to sources from outside their given frameworks. By this process, concrete universality plays a role in correcting our universal abstractions. In particular, it points us to material conditions and recognition factors that are involved in ensuring equal positive freedom for all people. In turn, abstract universalism enables us to posit the limits of acceptability for cultural practices – Gould’s liberal moment. Thus, concrete and abstract universalism work together to support a human rights framework which facilitates the expansion of transnational democratic norms.

Conclusion It is clear that the contributors to this volume all value democracy. In varying ways they have articulated accounts of the relationships between democracy and the practices of contemporary global politics. None, however, is sanguine about the difficult task of achieving what Karol Soltan helpfully terms mature democracy, at the global level. This goal is a long-term goal, one with many difficulties which must be navigated before it can be achieved. Central to the work of moving toward the goal, however, is the identification of problems, and the honest reckoning with how they might be surmounted. I venture to speak on behalf of all the authors in this volume by saying that we hope, with our efforts here, to have contributed in some small way to that task.

2

Mature democracy and global solidarity Karol Edward Sołtan

This chapter is part of an effort to articulate the idea of militant moderation.1 Militant moderation is, in many ways, an offshoot of the republican and constitutionalist traditions; this will be obvious in what follows. However, it is also distinctive: first, as moderation, in its struggle against human destructiveness and the treatment of that destructiveness as an enemy. Second, in the emphasis which it places on the claims of moral pluralism: there are multiple legitimate and good ends, and right action requires a harmonious balance in the pursuit of those ends. And third, it is also distinctive as militant, in the ambitiousness of its political and intellectual goals. It is only the militant form of moderation that could possibly support something so grand and ambitious, so impossible and mad, as global democracy. And militant moderation is not satisfied with just global democracy. To be attractive and sustainable, global democracy must be more than just global democracy: it must also be mature. It is time to articulate and to defend the moderate ideal of maturity because mature democracy is a central political component of this ideal. I begin by explaining more fully what I mean by moderation, first, and maturity, second.

Moderation and maturity A workable and defensible definition of moderation would include three elements. First, I believe, moderation requires some form of moral pluralism. There are multiple good ends, and we should aspire to the most attractive balance between them. Hence moderates are attracted to a variety of metaphors of balance and center (avoiding extremes, choosing the golden mean, and so on). Isaiah Berlin (1998) has recently been the most influential moral pluralist. Other prominent moral pluralists before the current popularity of the idea, all with deep twentieth-century roots in the area between the Soviet Union and Nazi Germany, include the émigré Russian Sergey Hessen, and the Polish philosopher Leszek Kołakowski (1978), whose pluralist liberal conservative socialism neatly summarized the political impulses of the glory days of the struggle against communism (see Walicki, 2006). Utilitarians, net-benefit maximizers, and Rawls in A Theory of Justice (1971) are good examples of non-pluralist thought. Second, moderation requires that the pervasive power of destruction and violence be recognized, and that the defeat of this destruction becomes a central

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goal. Confucians, constitutionalists and pacifists take the problem of destruction (and threat of destruction) seriously. Deweyan problem-solvers2 and deliberative democrats typically do not. A third element of moderation is a commitment to reason or to rationality, or at least to reasonableness, which (among other things) gives moderates a fondness for deliberation. None of these three elements of moderation require that we abandon political and intellectual ambition. Nor do they require that we disparage passion, as against reason or interest. Moderates do, however, disparage destructive passions. But passions are also the engine for making the world better and for protecting it from damage and destruction. The construction of a mature global democracy will require passion and ambition. It will have to be a product, we might say, of militant moderation. Maturity is a product of moderation and it incorporates moderation. Moderation is the seed from which maturity grows (to use a Gandhian metaphor). The ideal of a mature democracy gives us a moderate but also an ambitious project of global democracy, because maturity pushes toward the largest possible scale. It does not do so defensively, as a response to an age of globalization. It does so, rather, because it aspires to inclusiveness and universality. The new technologies of transport and communication, and the globalization of market activities through freer movement of goods, capital and people across borders, make it easier to seriously pursue mature global democracy. They create an opportunity for mature global democracy. Maturity3 incorporates both complexity and a capacity to overcome difficulty, or to solve difficult problems. This requires both rationality and solidarity. Maturity also implies, in its meaning of full development, reaching the largest possible scale. Transitions from the simple to the complex, and from smaller to larger, are common features of movement toward maturity. So mature democracy will be a complex global democracy; it will be complex in the system of legitimacy that supports it, and it will serve a complex demos. Majorities will not rule. These complexities are pursued below. To be achievable, global democracy ought to be attractive and sustainable, but that is unlikely to be enough. It must be supported by cultural change, i.e. change in the way people think, what they value, and what they take for granted in their behavior and beliefs. Cultural change of this kind is, in large part but not entirely, outside human control. We can still influence it by what we teach, and how we teach it. Finally, to be achievable, a mature democracy needs a political instrument, a method and an organization. Delegation is the process for the incremental creation of institutional complexity. So a mature democracy will, most likely, be a product of long sequences of delegations. And, as a political instrument, it will need an analogue to the Leninist party which served as an instrument of the Communist revolution. I close by suggesting a Gandhian-organized self-limiting social movement.

Mature democracy and global solidarity 19

Mature democracy, rationality and solidarity Mature democracy is a form of democracy with the greatest capacity to overcome difficulties. The main difficulties arise from the tradeoffs needed in the pursuit of legitimate ends. The situation is difficult when progress in one direction (for the legitimate ends of some of the population) can be had only at a great cost to other legitimate ends, as is the case in deeply divided societies, for example. The difficulty would be avoided if there were no conflict among ends or if the means were unlimited. But, as economists well know, this is not the human condition. There are conflicts between individual ends, between shared ends of different subgroups, and conflicts among shared ends of the group as a whole. A mature democracy will be a society with the skills, institutions and motivations that can overcome the difficulties found in pursuit of attractive ideals. To do something, you must be both willing and able to do it. A simple way to begin to talk about the difficulties facing a task, then, is to divide them into difficulties due to insufficient capabilities and difficulties due to insufficient motivation. We can describe as rationality the set of teachable skills and institutions that enhance our capability to overcome the difficulties that face us. And for democracy, at least, we can describe as civic solidarity the set of motives that help us overcome the difficulties in pursuit of the shared ends involved in democracy. Rationality produces in democracies a great deal of institutional articulation, parliamentary institutions, various forms of separation of powers, many independent agencies, and checks and balances. It allows a system capable of the correction and prevention of errors: the institutions of an open society, commitment to general rules that prevent predictable mistakes, deliberation, division of labor into tasks, and, most importantly, division of labor into stages. The content and nature of civic solidarity is revealed in detail only when those democratic institutions capable of overcoming difficulties are sufficiently well articulated to express it. But, without knowing the details, we know it is solidarity: a willingness to sacrifice for others and for ends shared with others. And as civic solidarity (we might also call it a solidarity of creative agents), it is distinctive in the form of its loyalties. Loyalty of the subject is what makes a person willing to serve another person, group, institution or cause. Such loyalty requires a willingness to sacrifice for the object of its loyalty as it is. This is the way we normally think of altruism or benevolence. Civic loyalty, by contrast, balances willingness to serve with willingness to reform. It is willing to sacrifice to maintain, protect and conserve the object of its loyalty, but also to reform and improve it. It is the loyalty of people aspiring to be co-creators of the object of their loyalty. This civic loyalty is the instrument that helps overcome the motivational difficulties of democracy.4 We can overcome difficulties along two dimensions then. We can introduce clever skills and more complex institutions, while letting solidarities stay as they are. This is the strategy of the dominant constitutionalist traditions, perhaps best exemplified by the essays in The Federalist (Hamilton et al, 1961). We can call it perhaps the Madisonian strategy. But without the right kind of mores or culture, without sufficient solidarity, and solidarity of the right kind, even the most clever

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institutional design is going to face overwhelming difficulties. We need a democratic society with civic solidarities to help us overcome motivational difficulties on the path to a fully developed democratic society.

Democracy and a complex demos One way of looking at the connection between democracy and civic solidarity is to see it as a connection between an ideal and a system of motivations that makes this ideal easier to achieve. However, it is also illuminating to look at the connection as modifying what we mean by popular sovereignty, a common way of expressing the democratic ideal. Sovereignty belongs to the people. But what is a people?5 All members of a given state, or all people born on the territory of that state? Given the way boundaries between states have been, and will be, modified by war, a people thus defined cannot plausibly be given the great honor of sovereignty by the democratic ideal. A nation then? That seems closer to the mark, but too narrow. We need to be able to think of the people in a way that is neither state-centered nor nation-centered. A people is perhaps best seen as a group connected by strong forms of internal solidarity, and separated from others by weak forms of solidarity. For a democratic sovereign, these ties need to be those of civic solidarity. The fundamental difficulty with the nation-centered version of this view is that it simply identifies the people with one type of group, the nation, to the exclusion of all others (and easily leading to the suppression of all others). A more adequate view of popular sovereignty starts from the recognition that peoplehood is a matter of degree, and that any person is likely to be a member of multiple and crosscutting peoples. Some of them are small and fleeting, others more substantial. But popular sovereignty is simply the requirement that institutions reflect this pattern of peoplehood, or of solidarity. Out of commitment to popular sovereignty, understood in this way, comes the requirement that boundaries be as permeable and as cross-cutting (or not) as the underlying solidarities. We also require that they be located along lines of weak solidarity, bringing together Pashtuns and Kurds (to cite two topical examples) rather than separating them, and separating Kurds from Arabs, or Kurds from Turks, rather than bringing them together. But, again, national solidarities and national cleavages are not the only ones that matter: in a system of popular sovereignty, the real patterns of solidarity are reflected and expressed in institutions. And, of course, those patterns are not sacred to a democrat. On the contrary, the democratic project is both an effort to construct institutions and to construct solidarities that enhance our capacity to overcome difficulty in the pursuit of attractive democratic ideals. If peoplehood is a matter of degree, then a number of significant conclusions follow. One is ethical. Nothing like a Law of Peoples in any sense approximating Rawls’s theory (2001) is even remotely plausible. Peoples cannot be analogues of persons behind a veil of ignorance, but, if personhood was in the same way crosscutting and a matter of degree, we could not imagine persons as agents making decisions either. On the other hand, the global people is constituted by a complex system of solidarities of various strength, it is not a utilitarian style system of

Mature democracy and global solidarity 21 universal and uniform benevolence. So a utilitarian style global ethic also does not reflect the complex mosaic of existing solidarities, or the complex mosaic of solidarities that we would require to support a mature democracy, appropriate for difficult settings in which legitimate ends conflict and require balancing, not suppression. A Law of Peoples takes states or nations too seriously. A utilitarian global ethic does not seem sufficiently respectful not only of separate individuals (this was Rawls’s criticism) but also of the many separate legitimate shared ends of a variety of groups, some fleeting some enduring through the centuries. Instead of a collectivity of peoples analogous to a collectivity of persons we have a complex system of solidarities. And the best way to understand the nature of the solidarities that make democracy easier is to look directly at democracy.6 A distinct form of democracy arises in settings that are not difficult but in which solidarity is strong. Mansbridge (1980) calls it unitary democracy. This is a form of democracy which is often informal, based on intense face to face deliberation, and making decisions by consensus rather than by a formal vote. Mansbridge describes it, quite accurately I think, as an extension and elaboration of the ideal of friendship. It is this form of democracy that appealed to the radicals of the 1960s. It also appealed to earlier radicals: it is behind Marxist notions of communist society. And long before that, this sort of informal democracy was widely practiced, albeit in the context of steeply hierarchical inequalities of power, in many traditional societies. In Mansbridge’s unitary democracy the various aspects of civic solidarity are fused and compact (to use Voegelin’s [1956–74] term), and hence both intense (with all the different aspects of this solidarity reinforcing each other) and mysterious (difficult to understand). This form of democracy has what a Weberian will recognize as a charismatic or sacred quality. But a better window for the understanding of democracy and of the underlying form of solidarity is found where difficulties force its different aspects to be differentiated. So a democracy that combines the sacred and the rational (with institutional arrangements designed to overcome difficulties) will tell us the most about the nature of the solidarity that democracy expresses. We will see that this solidarity requires a loyalty to various legitimate ends, some perhaps universally shared, others belonging to subgroups and individuals. And it is not a simple system of uniform solidarities, but a complex system of legitimacy (see below) and solidarity. There will be multiple peoples, with various degrees of peoplehood. There will not be one sovereign and simple demos, but rather a complex demos, with sub-demoi of various degrees of significance. Much of democratic thought and practice assumes a simple demos, in situations of limited solidarity, but also limited difficulty. In such settings democracy is likely to be majoritarian. A great deal of the literature of social choice theory shows how unsustainable this picture is when we simply admit that a choice with only two alternatives is very rare. A little complexity in the set of alternatives very quickly puts in question the identification of democracy with majority rule. For example: the Borda count is plainly not majoritarian, is it therefore deficient in its democratic

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credentials? Why? The Borda count has its deficiencies (all voting methods do) but it is arbitrary to rule it undemocratic just because it is not majoritarian.7 Another literature, comparing democratic institutions in different countries, shows that the actual practice of democracies (especially in deeply divided societies) is often more consensual, and relies on separation of powers in a way simple majority rule would not (Lijphart, 1999). This can be seen as a practical adaptation to difficult situations. Some of these institutional arrangements are best seen as addressing our limited capabilities. Those I will discuss in the sections that follow. But others address the limits and the complex structure of solidarity in their society. They can be seen as reflecting a recognition of the complexity of the demos, as we often call the people in their capacity as sovereign. We understand little of the nature and the role of a complex demos in a democracy. So, for example, the participants in the discussions about the present and future prospects of democracy in the European Union worry about the absence of a European demos, a demos being seen as a prerequisite to democracy. Certainly the prospects for a global demos, and hence for a mature global democracy would be even less. But all these discussions assume a simple demos is the only possible demos. To evaluate the various claims in these discussions we need a notion of a demos that is relevant to the task at hand, and that allows for complexity. Let us say a group is a demos to the extent its members are willing to sacrifice when they are outvoted. They are willing to be a loyal minority. And they are willing to restrain themselves also when they are the democratic winners, refraining from imposing their will to the full extent possible. Obviously democracy will work more easily in a group to the extent that group is a demos. Nations tend to be good demoi. Europeans as a group are not, as they are too deeply divided among themselves. And the populations of many deeply divided states (Cyprus, Lebanon, Iraq and so many others) also are not good demoi. The population of the world is not a demos at all, as seen in this way. And so the prospects of global democracy (mature or not) must be dim. This all follows if the demos must be simple, with no internal structure. In a simple demos internal political divisions are not serious enough to be reflected in institutions or in boundaries. To think seriously about mature democracy, or about any democracy that can work in difficult circumstances (Iraq or Somalia), let alone the most difficult circumstances of the global scale, we need to have a more general conception of what a demos can be. It can have various levels and types of complexity. And democratic procedures must operate at these various levels of complexity. The simple demos of the now dominant view of democracy, with its simple majority rule, must be seen for what it is: a special case. So democratic theory must open up what we might call a second front of generalization. The first front was opened in social choice theory when it began systematically to consider decision-making procedures for situations with more than two alternatives. The second front should consider a demos with various kinds of internal boundaries. We can define the structure of a demos by the location and depth of the boundaries within it, the structure of its internal divisions. These may be religious,

Mature democracy and global solidarity 23 ethnic or class divisions; what matters for this account of the internal structure of the demos is simply where the boundaries are and how deep they are. If a boundary has no depth, it has no political significance. Maximum depth, on the other hand, indicates a boundary which justifies complete mutual independence of the groups the boundary divides. The maximally deep boundary separates two separate demoi. The many boundaries of intermediate depth give structure to a complex demos. Another way to clarify the notion of depth of boundary is to consider the nature of the democratic procedures appropriate for a complex demos.8 Let us say we have an encompassing demos divided into sub-demoi (and for simplicity let us assume that all internal boundaries are equally deep). If the internal boundaries are maximally deep, decisions in the encompassing demos should be made using what we might call the democratic treaty procedure. A decision is made if a majority in each sub-demos agrees. We have then also, of course, the support of the majority in the encompassing demos. When in a system of sovereign territorial states all the states become democratic, their treaties will be adopted roughly by this procedure. At the other extreme of boundary depth, we will still require a majority of the encompassing demos, but the requirement of support from within each sub-demos will go down to 0. We have then the maximally simple encompassing demos ruled by a simple majority. In such a society the sub-demoi effectively do not exist politically. Complexity comes in between these two extremes. At maximum depth of boundaries we require just over 50% of the votes from each of the sub-demoi. As the depth declines, the requirement goes down. Let us take the 40% level as an example. Now the boundaries are substantially less deep than in the democratic treaty case. The decision rule is that a proposal is adopted if it gains a majority in the encompassing demos, and at least 40% in each subdemos. In the democratic treaty procedure each sub-demos has a majoritarian veto. A majority of any subdemos has the capacity to block any proposal. When we move from depth measured at 50% to depth measured at 40%, majorities in sub-demoi no longer have the capacity to block proposals: you need just over 60% to block. We can describe this shift in terms of the degree of solidarity assumed across the internal boundaries within the demos. The democratic treaty procedure assumes no solidarity. The 40% procedure assumes some. I hope it is clear how the story continues: as the internal boundaries lose depth the blocking majority required for a sub-demos to veto a proposal becomes higher. At the extreme no voting majority, not even unanimity, is sufficient and the encompassing demos loses its internal structure entirely and becomes a simple demos, ruled by simple majority vote. So at one extreme of a democracy with a complex demos we have a treaty system between independent demoi and at the other extreme we have a single simple demos. Some demoi may have still more complex forms of complexity (so to speak). So a country such as Canada may have boundaries of one depth separating the demoi of the provinces, and a boundary of a different depth separating Quebec from Anglophone Canada (this simplifies the Canadian situation, of course). A complex democratic procedure appropriate for a Canadian style polity might

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require a majority of all Canadians, a substantial minority in both Quebec and Anglophone Canada, and also at least some smaller minority in each province. This is not a common view of Canada by Canadians, but that is another question, which may have something to do with the dominance of the simple form of the idea of the demos. Discussing in this way a democratic decision rule for a complex demos I have said nothing about federalism and the decision rules federal systems adopt. Yet seemingly federal systems are precisely those that accept having a complex demos. Not exactly. Federal systems are complex polities to be sure, and a complex global democracy will be without question in some federal or confederal form. But in federalism the complexity is at the level of states not demoi. A federal system has at least two entrenched levels of authority, so its central government typically has both direct representation of citizens, and a representation of the member states or provinces. And the typical democratic procedure in a federal state is not the procedure I outlined above for complex demoi. It is rather some version of the procedure adopted in the Lisbon Treaty for the EU. This is usually called a double majority procedure, requiring for adoption the support of both the majority (or supra-majority) of the population (through their representatives) of the encompassing demos (the EU in this case), and the majority (or supramajority) of the member states. The US Constitution adopts a similar procedure. To become law a proposal needs a majority of the representatives of the people (in the House of Representatives) and a majority of the representatives of the states (in the Senate). In a double majority system, or even in any double supra-majority systems we might invent, an individual state and its people can be defeated no matter how intense and unanimous is their opposition to a proposal. Such systems are compromises between an encompassing unitary state and a collection of independent (unitary) states, hence states enter into the calculations of the decision procedure (you need the support of the majority of states). But a democratic procedure should more directly reflect the complexity of the underlying demos, and it should protect each of its components. A democratic procedure of the double majority kind would not be attractive at the global level. A country could be outvoted, no matter how deeply its citizens oppose the outcome. A complex demos procedure (like those I discuss above), on the other hand, would seem to be, by contrast, a good starting point. It would not be more than a starting point, however, because the complexity of the global demos is greater than the discussion so far allows. Let me briefly mention two more complexities. First, how a sub-demos is treated within a democratic procedure must depend on its size as well as the depth of its boundaries. Very small sub-demoi are not democratically equivalent to very large sub-demoi. A global mature democracy thus is likely to exclude very small states, or give them some special status, comparable to today’s federacies or associated states (Elazar, 1991). Second, there is no reason to allow only two kinds of law, one which applies to the entire encompassing demos (federal law) and one which applies to a sub-demos only (state or province law). We can allow also a third

Mature democracy and global solidarity 25 type of law which in order to apply to a sub-demos must have the support of a majority of the encompassing demos as well as the sub-demos in question. Within this category, different rules will then apply to different sub-demoi, but (unlike the laws that pertain to the sub-demos only) they will also need the consent of the encompassing demos. Real life will of course add many complexities to these. We don’t need to anticipate all of them ahead of time. But we do need to think about democracy in a way that helps in more detailed negotiation and institutional design. Hence, when we think of democracy we need to think of a decision procedure that applies in the general case, no matter what is a demos’s level of complexity. We will not get far insisting that all democratic thinking and all democratic institution-building must fit the simplest case. Democracy must be seen to allow a complex demos, so democracy is not the same as majority rule. And the various kinds of consensual democracy we see around the world are in large part rough adjustments to a complex demos. They are also adjustments to the complex structure of democratic legitimacy.

Complex global legitimacy An influential conception of democracy, popular on the left, identifies it with the effort to bring power as close as possible to the people, and nothing more, and makes it a weapon in the ancient political battle between the powerful and the powerless (or between the rich and the poor, or between the capitalists and the proletariat). According to this view democracy is the instrument through which the powerless (the people, in a narrow sense, the masses as opposed to the elites, the workers as against the owners, the exploited as against the exploiters) can (finally) defeat the powerful. According to his view, the democratic program of reform is, so to speak, internal to this battle. The more balanced moderate view sees the democratic program differently, and as a result constructs a different program, aiming to strengthen what we might call the reform potential of both the powerful and the powerless, and strengthen both reform potentials even more by creating an alliance, a coalition, or even a symbiosis between them. The outcome of such a symbiosis would be a mixed regime, along somewhat Aristotelian lines, but modified in light of experience, and in light of the greater difficulty of the task as it now presents itself. Global democracy understood as a product of this more moderate conception would be a form of a mixed regime, a continuation of the tradition of the mixed constitution, and not some form of rejection of that tradition which transfers all power to the people. Modern constitutional democratic states are complex institutional hybrids, which are themselves such mixed regimes. But modern democratic theory typically does not recognize fully this complexity. The cause of global democracy will be better served by a democratic theory that more fully recognizes the moral and institutional complexity which is already at the heart of the democratic project. A full recognition of the potential complexity of the demos is only a start. The contemporary practice of democracy has its complex separation of powers

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and an intricate pattern of delegations. But we don’t see this fully reflected in most contemporary normative accounts of democracy: democracy as popular self-government, democratic legitimacy as based on agreement in an ideal speech situation, political equality as the master ideal of democracy, and so on. All of these accounts marginalize the moral and institutional complexity of the democratic project. A more complex normative ideal of democracy would remain closer to the modern practice of democracy, and would be a more promising guide in the next great ambitious leap of the democratic project, to the global level. It would build on constitutionalist republicanism, such as in the recent work of Elkin (2006) and Lutz (2006), and on some accounts of a future global or cosmopolitan democracy that recognize the necessary complexity (for example Held, 1995). The best way to understand the structure of the complexity of democracy in an age of modern globalization is not the classic way which centers on the question who rules (the one, the few, the many), and it is not the Enlightenment way, which centers on the distinct functions of government (the legislative, executive and judiciary functions). It centers rather on the complex structure of legitimacy which is the moral foundation of the democratic project, and on the pattern of legitimacyenhancing delegation of powers, that produces the complex institutions, which give us our first inkling of what a mature democracy will look like. The movement from simpler to more complex polity proceeds largely by delegation.9 Delegation has been widespread both in domestic politics and international politics of the last decades. It has involved delegation of decisionmaking powers to courts, to central banks, to regulatory institutions, to international organizations, and most notably to the various institutions of the European Union including its executive, its judiciary, its parliament, and to its exceptionally autonomous Central Bank. The most systematic explanation for this widespread phenomenon is what many have called rational choice functionalism (Eggertsson 1990; Pollack 2003). On closer inspection, however, this functionalism is not very functionalist: it is best seen as an account of delegation as serving legitimacy enhancement. Once we see the phenomenon of delegation as driven in large part by legitimacy enhancement, we can go further in attempting to explain the recent popularity of delegation. We can see it as part of a larger shift in the process of legitimacy enhancement that occurs as the world comes out of the crisis of the 20th century. It is a shift, above all, from legitimacy based on the twin principles of the sovereignty of the territorial state and the sovereignty of the people, toward more complex forms of legitimacy, and more complex forms of social organization, a shift whose one possible end point could be a global mature democracy. Lijphart’s systematic comparison of different democratic systems in Patterns of Democracy (Lijphart 1999) suggests two regularities directly relevant to understanding delegation. First, countries with rigid constitutions and strong forms of constitutional review are also likely to have more independent central banks. And, second, countries with stronger forms of federalism are more likely to delegate power to both courts and banks in this way. Why should that be? It cannot be because federalism requires independent arbiters in the form of

Mature democracy and global solidarity 27 constitutional courts (that wouldn’t explain why central banks tend to be more independent in federal countries). And rights consciousness cannot be the whole story (central banks don‘t help with human rights). A better answer, I suggest, is that both federalism and these forms of delegation are products of a distinctive moderate style of politics. By contrast, systems in which the state is unitary, and in which delegation from democratically elected bodies is rare, are products of a more radical democratic tradition. These more radical alternatives are more likely to survive in settings where problems of institutional design and legitimacy enhancement are relatively easy: in smaller and more homogeneous societies. As we shift from small to large, as we increase both heterogeneity and the difficulty of problems to be solved, institutional design solutions that include federalism and delegation to courts, banks and independent agencies become more attractive. Legitimacy is easy in small homogeneous settings, when we have to perform relatively easy tasks. As we move to larger settings, and more heterogeneous populations, faced with more difficult tasks, legitimacy becomes more difficult and more complex forms of legitimacy are required. Delegation is part of an effort to achieve these more complex forms. The task of constructing a polity based more on legitimacy than on force began where it was relatively easy, in the small homogeneous state of the ancient Greek polis, small in size, and made more homogeneous through restricted citizenship. The task then shifted to more difficult settings, from the city state to the larger territorial state and beyond that to multinational heterogeneous states and supranational institutions. This is the path toward a mature global democracy: from small to large, from simple to complex. More modern simplifying devices for the task of legitimacy building include a culturally homogeneous state, known as the nation state, and the two dominant legitimating ideas of modern politics so far, the notions of popular sovereignty and of the sovereign territorial state. The chief characteristic of the more recent period, with its widespread practice of delegation, is a transition beyond these simplifying devices, abandoning neither popular sovereignty nor the territorial state, but modifying these two legitimacy producing principles by making them a part of a larger and more complex system of legitimacy. In more specific historical terms the fashion for delegation can be seen as part of the definitive ending of the French Revolution. The antidemocratic legacy of the French Revolution ends with the collapse of communism. Its distinctive democratic legacy ends with a shift away from a certain conception of democracy which was also the brainchild of the radical politics of the Enlightenment. We find it already in the English Civil War, but we find it in a more elaborate form among some radicals in 18th century North America, and even more among the powerful currents of radicalism in the French revolution. Its extreme form is “government by convention,” in which the legislature takes over executive tasks. It is characterized more generally by a preference for political systems dominated by democratically elected legislatures, and an overriding concern with limiting judicial power. The French 3rd Republic during most of its years was the best example of this tendency.

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It is a style of politics which recognizes only one source of legitimacy: democratic voting. An alternative style of politics, with an ancient pedigree, favors a set of constitutional arrangements that are more mixed and balanced, relying on complex forms of power separation and power sharing, and on complex systems of legitimacy enhancement, opposing arrangements of checks and balances, and mixed régimes (see Vile 1998). When we shift away from the radical legacy of the French Revolution toward this alternative more moderate legacy, we predictably see everywhere the phenomenon of delegation from democratically elected law making bodies to various agencies, courts prominent among them, combining to create more complex forms of legitimacy. And we see delegation from sovereign territorial states to various supranational bodies. This whole trend, achieving greater complexity through delegation, can be seen as part of a project of moderate politics. Among the main characteristics of this moderate project is a distinctive form of realism, whose loyalty to reality is expressed not in the conviction that improving the world is impossible (this is largely the spirit of realism in international relations, for example), but that it is difficult, and becomes possible only when that difficulty is fully recognized. And this requires both complex ideas and complex institutions, because difficult problems require complex solutions. So if we see in the world of ideas and institutions a shift toward greater complexity, we need to understand it as a requirement of design for difficult circumstances (and not as an otherwise inexplicable evolutionary trend, for example). We see here emerging, it seems to me, a new form of the balanced constitution, in which the crucial balance is not between different branches of government, but between different legitimacy producing systems. And delegation is an excellent instrument for the production of such mixed legitimacy régimes. When a democratically elected body delegates some of its powers, it does not entirely give them up. So the resulting decisions are still in part legitimated by their partially democratic origin, but they are also legitimated by the process to which the decision-making has been delegated, whether it is the expertise of the regulatory body, the expertise and distinctive credible commitments of an effective central bank, or the distinctive procedures and forms of reasoning of a court. And similarly when a sovereign state delegates a part of its powers, it does not entirely give them up. The result is not a world without states, but a more complex world in which modified forms of the state are key components. The phenomenon of delegation fits well the larger pattern some have come to call “a new medievalism” (Bull 1995 [1977]; Kobrin 1999; Friedrichs 2001). The new system we see being born has some key features in common with pre-modern Europe. A world that used to be dominated by sovereign territorial states is replaced by a more complex structure in which sovereign territorial states are less sovereign and other political entities take over some of their functions. For some this brings to mind a world in which the Holy Roman Empire competed with the papacy for both authority and power. There are important analogies between the political arrangements of pre-modern Europe and the world we see emerging today. In some

Mature democracy and global solidarity 29 ways these recent trends restore continuity to an earlier stage of the development of our civilization. They restore a system of complex and cross cutting institutions and loyalties, and an aspiration to establish and elaborate a universal civilization. When we aspire to a universal civilization we certainly mean universal, unlike the medieval European project of a Respublica Christiana, which was universal only in a very parochial way. So we resume the universalist project in a new form, to build a global political structure centered on a complex system of legitimacy, whose starting point may be the sovereign state and the sovereign people, but which takes advantage of a variety of processes of delegation to build a more complex system appropriate for a heterogeneous global society facing difficult problems.

Global democracy and universal civilization Global democracy does not look realistic. Even a relatively small goal, such as reforming the membership and decision procedure of the UN Security Council, seems impossible to achieve. Global democracy would require far deeper institutional transformation than the reform of the Security Council, and to make it work it would require also deep cultural change. This seems hopelessly difficult. Many dismiss it as impossible. What to do? I suggest two lines of reform that are perfectly feasible in the long term, and would then support the other even more difficult changes. On the institutional side to balance the overwhelming power of sovereign territorial states (and especially the most powerful sovereign territorial states) we need a global self-limiting social movement, in a roughly Gandhian style. As to cultural transformation, it will have to be achieved through schools. Schools and families are the great educators, but the educational programs of schools are to a greater extent a product of design, and hence more open to reform. Beyond basic skills schools teach what universities teach, except in a more introductory form. And universities teach the content of the most significant disciplines. The key to a civic transformation of modern global culture is then the reorganization of the disciplines. This of course can only be done in the long term, but it can certainly be done incrementally, and it can be done. We need above all a new intellectual discipline that would reinforce the skills and motives required for what we might call a civic attitude toward the world. To make easier the next stage of the democratic project, which involves its globalization among other things, we will need a cultural transformation of modernity, that would enhance the civic form of solidarity. This will not be done if we rely only on sad and sentimental stories (Rorty 1993), or on new forms of philosophical argument, or on books and films and TV or radio programs, that address themselves directly to the citizens of the world. Real cultural change demands a serious transformation of the system of intellectual disciplines which organize our knowledge, and hence organize what we teach. Who teaches the teachers? The disciplines do. We need, then, a new discipline. Not tomorrow: it can emerge incrementally. It would study and promote the principles of creative agency at the heart of civic solidarity. It would consider the pervasive microstructures of power from the

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perspective of a creative agent (a citizen, a co-creator). And it would consider from the same perspective the largest structures of power, best seen as the structures of a slowly and incrementally emerging universal civilization. The project of mature democracy should not be seen defensively, as something we now need because democracy within the system of territorial states is failing under the pressures of market globalization. It is better seen as a culmination (the full development, as the name indicates) of an ideal. A democracy that is mature, hence fully developed and global, can only be part of a larger and more comprehensive world, which we best call a universal civilization. Global markets are part of that world, too. In fact they create incentives that make easier the development of a mature global democracy. What is this universal civilization? It is a mosaic of legitimate ends, of ways of life, practices and beliefs supported by a complex system of institutions, all of it unified by a commitment to develop a mature universal civilization, and by a commitment to universal values whose first formulations are contained in global declarations and legal enactments supporting universal human rights. It is also unified by the struggle against the power of human destructive capacity in all its forms. It is unified in efforts to establish and maintain peace, to make coercion predictable and diminish its extent, and to reverse destruction whenever possible: to renew ecosystems as well as our various cultural inheritances, to rely more on renewable resources, and so on. Loyalty to a universal civilization is not exactly cosmopolitanism as it is normally understood (even though it is universal). In a much quoted definition Beitz describes moral cosmopolitanism as a standpoint, which “applies to the whole world the maxim that answers to questions about what we should do, or what institutions we should establish, should be based on an impartial consideration of the claims of each person who would be affected by our choices” (Beitz 1994: 124–5, see also Barry 1998). In a similar vein Nussbaum writes of “the ideal of the cosmopolitan, the person whose allegiance is to the worldwide community of human beings” (Nussbaum 1996: 4). Critics have doubted if cosmopolitanism understood in this way can generate passionate enough loyalties to sustain the ambitious political projects of global democracy or global justice. The alternative is to develop and reinforce allegiance to a universal civilization, which will be indeed globally impartial when it is fully established, but which is much more than an allegiance to a worldwide community of human beings, that calls for an impartial consideration of the claims of each. It is an ancient project we can trace to Sumer and the beginnings of Chinese civilization, and to many other beginnings. It is a project that many generations have contributed to, most without being in any way conscious of such a lofty goal. It is a project with a long and dramatic history because by its very nature it is involved in a struggle, arguably the central struggle of human history between human creative and destructive impulses. It has been a uniquely difficult struggle, and with technology reinforcing both our capacity to create and to destroy, it is becoming a more difficult and more dramatic struggle. We fighters for a mature global democracy are not simply loyal to a few universal but abstract impartial principles. We are loyal to those principles as part

Mature democracy and global solidarity 31 of our loyalty to universal civilization, as part of this long struggle, a struggle which is, and always has been, at the heart of the moderate way of life.

Global democracy and global solidarity A cultural transformation needs some reinforcement to overcome the difficulties facing the project of global democracy and universal civilization. I think we moderates should learn from our enemies, and draw on the political skill of Vladimir Ilyich Lenin. Lenin believed, and he was right to believe, that the communist revolution needed a political instrument in order to succeed. And he thought so even though he believed the revolution was inevitable. Even though inevitable, the revolution would not happen on its own. So he built a disciplined and centralized political party, which did, in fact, become an effective instrument of communist revolution. Unlike the communist revolution for Lenin, there is nothing inevitable about a mature global democracy. A global civilizational collapse, or even the elimination of the human species driven by ecological destruction or some massive global high tech war, are probably more likely. It is therefore all the more important to learn from Lenin: a global mature democracy requires a political instrument. A mature democracy can be constructed that keeps power as close as possible to the people, is founded on a balanced and mixed constitution, recognizes institutionally the complex system of legitimate ends a civilization promotes, and recognizes the complexity of the global demos. But it is unlikely to be constructed, even incrementally and over the long term, until and unless a political instrument can be created to counter the power of the ruling coalition of sovereign states, few of which are eager to give up much of their sovereignty or of their power. The best candidate for such a political instrument in the service of a future mature democracy, it seems to me, would be a global organized and self-limiting social movement, Gandhian in its basic political method, though not necessarily very Gandhian in the detail of its political or economic program. Think of it as the organized arm of militant moderation. In contemporary constitutional states initiative comes primarily from the executive. The functions of initiating and implementing (or executing) new policy and new law is mostly in the hands of the executive branch. The legislature often retains some initiative, and there is room for initiative from below, coming from interest groups, lobbying organizations and “civil society.” But we have a kind of organizational imbalance between initiative from above and initiative from below. We need a better system of political initiative. And we can obtain it by organizing a global system of initiative from below which is both strong and self-limiting. It would build on what is now a rich treasury of experience, centering on the political methods of Mohandas Gandhi, Martin Luther King and the Polish Solidarity, to name just three examples, each one important and all quite unlike the others. It is useful to give this organization a name, so let us call it Global Solidarity. Global Solidarity will be committed to universal principles in the form now expressed as human rights, but open to expansion and modification. It will

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recognize that these principles are multiple and can pull in different directions, so it will be committed to the pursuit of a harmonious balance among them, a middle way, a common ground. It will avoid extremes, and it will not aim to subvert or smash anything. It will take violence and destruction as the enemy. In its goals it will attempt to diminish the power of human destructive capacity: to stop and prevent wars, to diminish and constrain coercion, to diminish the extent to which human industrial civilization destroys the global or the local ecosystems, and to promote both cultural and ecological renewal (the reversal of destruction). It will be committed to rationality and reasonableness, and so be perennially open to deliberation and self-correction. It will recognize that all those changes will need to proceed incrementally most of the time, thus “revolution” in any sense of that word (except the most trivial) will not be its goal. And it will recognize also that the best chance of success will come when reform pressure from below builds coalitions with reform pressures from above. Thus it will treat the powerful and their institutions as potential allies, not as class enemies or permanent political adversaries. In all these ways the organization will be both an embodiment of moderation, and quite Gandhian. A Global Solidarity will be a global, organized self-limiting social movement. It will be self-limiting in its choice of means, most notably in its absolute rejection of violence. It will be self-limiting in its choice of ends in at least two ways. It will be based on an absolute prohibition of taking power within states (thus it cannot become a political party). This simply follows if you renounce violence, since states are inevitably violent organizations, no matter how effectively they hold back and restrain their violence. A self-limiting social movement will be self-limiting in its choice of ends in one other important way: it will act only when there are powerful reasons to believe that the action promotes the global principles the organization serves. It will not have an overwhelming imperative to act, but it will have an overwhelming imperative to be principled. To establish and preserve this self-limiting and militantly moderate nature of the organization it will need an effective constitution, one capable of sustaining it in the long term, making it politically effective, and preventing it from abandoning its self-limitations – as it will be inevitably tempted to do, especially if it is successful. Making a constitution for self-limiting social movements is not a subject on which there is a large literature. We know more about what makes for successful strategies in such movements. And there is clearly a problem: such movements have had dramatic political effect, especially during the deep crisis years of the twentieth century, but none of them has had a very long life. A Global Solidarity will need to have more staying power, and will need to be more organized. We can borrow from the experience of constitutional states. So let me suggest the following sketch for a constitution of Global Solidarity: given the global mosaic of legitimate ends which the movement will pursue, some form of decentralized federal structure would seem most appropriate. But it must be a structure capable of coordinated global action, if such action is required. Beyond that, when we think of the constitution of Global Solidarity it seems to me useful to consider campaigns

Mature democracy and global solidarity 33 (like the Gandhian satyagraha) as the organization’s equivalent to what laws are in states. The organization will need a deliberative body analogous to a legislature, which will decide what campaigns should be adopted. It will need an executive that would both propose campaigns to the “legislature,” and implement the campaigns that are adopted. Finally, the organization will need another deliberative body, a small one so it can act quickly if necessary, which will act as the guardian of the organization’s most fundamental principles and of its nonviolence. It will have absolutely no power to initiate or implement campaigns, but it will have the power to stop them, whenever they turn away from the militant moderation which is the organization’s guiding idea. The executive and the legislature equivalent will need to be chosen in some relevantly democratic way. The Guardian of Principles must be chosen in a way that distances it from the ordinary politics internal to the organization, and that guarantees independence. Does such a militantly moderate global organization have any chance of being established? It is most likely to develop from the continuing work of the World Social Forum, and associated initiatives which have emerged in opposition to the dominant trends of globalization, trends they label neo-liberal or corporate. Can a militantly moderate Global Solidarity emerge from the work of the World Social Forum? I think it is possible, but it would not be easy. The WSF has been mostly a forum of discussion, and it has been resistant to unified organization, or to the development and adoption of programs and manifestoes. In any case, the moderate style seems weak among those who insist that “another world is possible.” Consider a recent programmatic statement, the Bamako Appeal of 18 January 2006 (Third World Forum, 2006 Bamako Appeal). The Appeal is controversial within the WSF networks in part because it is a manifesto (some see in it an effort to do what the Communist Manifesto did in an earlier age). But its content has also a great deal of support. It is not a moderate manifesto. The Appeal is directed against the “dictatorship of financial markets” and the “uncontrolled global deployment of transnational firms.” It is an attack on neo-liberalism and on corporate globalization. These trends, as well as the groups and institutions that promote them (they who meet every year in Davos) are the enemy. This is not how a Global Solidarity would present its program. The enemy of militant moderation is not neo-liberalism or corporate capitalism, the enemy is human destructive capacity. The groups and individuals who meet in Davos will be opponents sometimes, but crucially they will sometimes be allies. The aim is always to search for coalitions of the reform potential of the powerless and the powerful. But many of the aims of the Bamako Appeal can be enthusiastically supported by a future Global Solidarity: to construct a world founded on the solidarity of human beings and peoples (how can Global Solidarity reject that?), to promote the civic perspective, to build a universal civilization. These are all phrases taken straight from the Bamako Appeal, and they fit well the program of mature democracy. A Global Solidarity would not necessarily fight the forces symbolically represented by Davos. It would aim to create, to the extent possible, a coalition of the principled powerful and the principled powerless. The idea that markets should

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not be sovereign, that they are an important institution but should be integrated into a larger social whole, has a great deal of support among corporate globalists. Markets require rule of law, and markets are undermined by corruption. Except when embedded in a rich and powerful web of shared ideas, values and customs, a market will not thrive. You can read this in countless publications of the World Bank, to cite just one source. For the militant moderation of Global Solidarity, global markets are, in part, a friend. They allow profoundly decentralized strategies of making the world better. They promote innovation. They create a new system of incentives more favorable to global institutions, and hence to global mature democracy. The Bamako Appeal, however, has little room for global markets as friends. But for Global Solidarity, markets would also be an opponent, mainly because Schumpeter was right: markets are instruments of creative destruction. And for a moderate, destruction is the enemy. So markets need to be blocked in some areas, restrained in others, and sometimes their effect needs to be reversed. But this is a very old story, it just needs to be continually elaborated and updated. The various institutions of the welfare state developed to protect and to insure against the destructive force of the market, and environmental regulations emerged to protect nature against the destructiveness of market-driven industrialization (of course, industrialization without markets is even more destructive). Recently (Cunningham 2002), attention shifted from protection (prevention of destruction) and insurance to renewal (reversal of destruction). Employees are not entirely protected from job loss, but have their capacity for renewal strengthened by training programs, for example. Ecosystems that have been destroyed by industrialization are restored to a more natural state. Cultures and civilizations undergo rebirths, renewals and renaissances. All these ways of fighting the human destructive capacity are at the heart of what militant moderation must be about. And when the Bamako Appeal, and so many others emerging from the World Social Forum and its associated groups, call for a renewal of democracy, then the only question a militant moderate can ask is: what do you mean? If you mean something like a mature global democracy, that is our great aspiration. But some forms of democracy can be unattractive, unsustainable, and unachievable, and they can also be unbalanced and destructive, as can social movements that aim to establish them.

Conclusion Mature global democracy, to reiterate, is a central goal for a moderate that is both militant and ambitious (politically and intellectually). It is not, however, a standalone goal: we can see it as a key institutional component of a universal mature civilization. I have outlined in this chapter some of its features, especially the way it adapts to a complex demos and takes advantage of a complex potential for legitimacy. And I have suggested instruments to make the goal easier to achieve. Cultural change requires the reorganization of the disciplines. Institutional change would be well served by a Gandhian self-limiting social movement.

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From the “democracy of nations” to stakeholders-based governance systems Paul Dragos Aligica

What is the future of democracy as an institutional design principle of international governance? How is the idea of organizing the international arena as a “democracy of nations” going to be affected by globalization? Is progress in international governance tantamount to an increase in the democratization of the relationships between states? How viable is the ideal of an international system defined formally in terms of equality, and informally in terms of democracy? These questions invite an exploration into the problematic territory of conjectures and speculations – a domain that has a highly ambiguous status in the social sciences. On the one hand, conjectures and “bold predictions” are considered to be an intrinsic part of the core of the scientific enterprise (Popper 1969). On the other hand, engaging for real in social prognostication has always been a risky venture in terms of professional reputation. Yet any discussion regarding the prospects of “democracy in a globalizing world” needs, sooner or later, to be future(s)-oriented. It is paradoxical, but the very twin criteria of relevance and realism require an endeavor into the objectionable territories of speculation, – i.e. of reasoning based on incomplete facts, information and evidence. This paper starts by reiterating the principles of thinking about future(s) in ways that could “avoid the twin irrelevance of the too unlikely and of the too probable” (Kahn and Wiener 1967) through an approach that combines the stable and the volatile, the slow changing and the accidental, and encompasses both the macro-level (historical stages and sociological structures) and the micro-level (decisions, actions, beliefs and expectations). The paper continues by focusing on the problem of specific ideas and beliefs that shape or have the potential of shaping the way we understand and apply the principles of democratic governance in the international arena. In other words, assuming an ontology and theory of social change in which ideas have a central role, the challenge is to identify those ideas relevant for demarcating and shaping the broadly defined problem of “democracy in a changing international arena where the states are no longer the sole actors”. Out of the list of such ideas, the notion of “democracy of nations” is singled out and used as a vehicle to explore the territory of conjectures and speculations defined by the questions that motivate this study.

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Between the “long view” extrapolations and the dynamics of beliefs, ideas and expectations Conjectures and speculations on future institutional change could be framed, as for any other social forecast, in two basic ways. At one extreme are “long view”, macrohistorical frameworks that capture the phenomenon of interest in a big “holistic” and structural picture, and as part of the broader historical process that encapsulates it. At the other extreme are very focused frameworks that deal with the dynamics of the specific phenomenon of interest by emphasizing its internal workings – its mechanisms and its contextual details of its processes. Thinking about institutional futures means a constant move between these two methods or approaches. The notion of the “long view” indicates a macro-historical mode of framing social reality in which events, organizations and actors are seen as “embedded” in larger temporal and structural patterns or trajectories, what Charles Tilly (1984) called “big structures, huge processes”. The focus on long-term historical structures (la longue duree) of the Annalles School (Braudel 1980), Wallerstein’s world system perspective (Hopkins and Wallerstein 1996) or Gellner’s (1988) theory of history are all good examples of the “long view” approach. These frameworks offer a view of the social reality that generates insights not only about the past and present but also a potential for speculations about where the phenomena of interest are heading. In this respect, probably one of the most effective ways to illustrate the genre is to use Herman Kahn’s bold reading of the “history of the past and future”. Outlining his macro-historical frame will illustrate at the same time how the phenomena of “democracy” and “globalization” are captured and interpreted in these approaches. With the profound social change process set into motion by the Industrial Revolution, writes Kahn, humankind has been engaged in a major transformation to a new form of “post-industrial” social and economic organization. In order to define the process, he coined the term “The Great Transition” (Kahn and Wiener 1967). In his view, the Great Transition encompasses a period of approximately four hundred years, from 1800 to 2200. But its major elements are not spread evenly over the entire four-hundred-year period; rather, they are mostly contained within the second half of the twentieth century – “the half-century of rapid and worldwide transition”. This “worldwide transition” could easily be interpreted as the “globalization” phase. Kahn noted that “that period is so dramatic and so startling that we may usefully think of it as almost by itself encompassing the historical watershed we have called the Great Transition.” Earlier and later periods of the Great Transition can be seen respectively as a sort of takeoff or preparatory period and an aftermath or consolidation period (Kahn 1979: 8). In order to spell out that point he suggested a mental experiment of looking backwards from the future to the present age, more precisely form the year 5000AD to the twentieth century: “Looking backward,” he wrote, “we might recognize three stages separated by two narrow, almost instantaneous, periods of transition.” The first stage was a period of hunting bands and tribes before 8000BC. That period was followed by the transition to civilization via an Agricultural Revolution. Then, finally, there is a process called modernization or the Great Transition, from 1800 to 2200. That

From the “democracy of nations” … 37 400-year period might be seen as an almost instantaneous termination of an era and the beginning of another. However, instead of taking eight thousand years like the Agricultural Revolution, this Industrial Revolution diffusion is progressing with incredible speed around the world. Kahn thought that in two more centuries almost all countries will become post-industrial – or at least attain the level of the twentieth century advanced capitalist nations (Kahn 1979: 18). A crucial fact of the Great Transition is that it is rooted in and is ultimately an extension of the Western civilization. According to Kahn, the best way to understand the nature and laws of motion of the Great Transition is to see it set into the larger context of what he called the “Basic Long-Term Multifold Trend of Western Culture”, the most basic and enduring tendencies of the Nord-Atlantic civilization. And democratization was indeed one of the tendencies on the list, along with liberalization, secularization, rapid technological change etc. (Kahn 1979: 19). As the Great Transition can be viewed as the culmination of the Multifold Trend, one could postulate that the “democratization” aspect of the trend will become global, as the Transition makes it more or less universal. As a parenthesis one may add that this macro-historical long view not only frames large-scale phenomena such as democratization and globalization, but also gives a historical interpretation of the reactions to them. Kahn’s point in this respect was that the impact of the Multifold Trend has always generated mixed reactions in the past. That is why, in order to better understand the late twentieth century and early twenty-first century paradoxical reactions to globalization, we need to look back into history at the previous reactions to the Trend. And on the whole, even Western elites, which were its main promoters, did not like it. Even today, many both inside and outside the West may applaud democratization and liberalization, and yet consider the social change associated with globalization a social disruption, a weakening of the traditional moral and social order, and thus objectionable. To sum up, Kahn offers a paradigmatic example of a persuasive macro-historical vision within which the current global developments can be seen as an accelerated phase of a great historical process of transition to a global post-industrial society. It is important to note that even if one does not agree with these historical and forecasted propositions, it is a fact that we implicitly operate with such long view, macro-historical frames. It is not that the “long view” authors such as Kahn are loose speculative thinkers but that all of us, even if we do not openly think on such bold millenarian scale, are at least tacitly operating with such visions. Even if we are agnostic about the future, we still have specific views about the trends of the historical process, about where we are, where we are coming from and where we are going. The most important observation for the purposes of this paper is that taking a long view, either implicitly or explicitly, creates a framework and an anchor for speculation about the future. Yet, this is insufficient to ground and elaborate specific conjectures on particular institutional developments, many of them driven by strong normative stances. The Great Transition is useful as a macro-sociological heuristic device, but there is not much one could say about democracy and the changes in the nature of international governance based only on this theory. This methodological point (in the measure

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in which there is a methodology of thinking about the future) could again be illustrated using a reference to Kahn’s work. Kahn identified a set of “categories of variables” that, once operating and analyzed in conjunction, could offer a basis for scenario building and even for “limited predictions”. The six categories were constructed having explicitly in mind their degree of predictability ranging from “relatively stable” (climate, gross topography, language) to accidental and incalculable (natural calamities, some kinds of personalities, “excessively complex phenomena involving unknown or unanalyzed mechanisms”) (Kahn 1967: 134). Those variables and Kahn’s taxonomy reveal a “speed of change based”ontology implicit in any long view approach. The reality consists of layers moving at different speeds, dynamics and degrees of volatility. To think about the future, one needs to position oneself relative to these different dynamics. As a rule, analysts that tend to see the future as more or less predictable, are inclined to emphasize the importance of categories closer to the more stable end of the continuum. Analysts that tend to see the future as unpredictable, are inclined to emphasize the more volatile end of the continuum. However, the further we go toward the more volatile layers of variables, the more we enter the territory of the accidental, the uncertain and the incalculable. Thinking of the future of a set of institutional arrangements we call “democracy” and “sovereign states” – entities that are strongly defined and driven by norms and ideas – within the context of a rapidly changing global arena, requires a foray precisely into these volatile territories. Consequently there are two possible approaches to how we can organize and focus our conjectures, speculations and discussions about the future of democracy in a globalized world. On the one hand, there are the standard methods to forecast institutional change by looking at past and present trends and by extrapolating or projecting into the future models that are built on past and present data. On the other hand, we can look at the existing ideas and beliefs about the future carried by the social actors in the process of dealing with and constructing that future, and then monitor the envisioned future solutions to existing problems, the expectations, and the images people have about the future. In other words, to study the directions they think things go, the directions they think things should go, and the directions they want to avoid. This approach might lead to predictions no better and no worse than a trend analysis, and it does offer a powerful basis for a full intellectual engagement with the future. Understanding the objectives, directions, images and designs people have about the future of their institutions, as well as understanding the directions in which these ideas are pushing, puts us in a better position to think about the coming developments. Looking at images of the future as keys of our understanding of institutional change is not at all as an eccentric enterprise as it may seem. This approach is, in fact, a standard practice in the social sciences and history. Because decisions matter, our understanding of the past has to replicate the same cognitive procedures that we apply when we are dealing with the future. Finding out what the people of the past believed, their designs and expectations etc. is, in most cases, a necessary condition of social analysis. In a similar way, understanding what are the institutional design principles people are considering for future institutional change may not predict institutional change but definitely

From the “democracy of nations” … 39 puts us in a better position to understand and anticipate it. Following the operational implications of this argument, this means that when one is dealing with a process of global change of such complexity and dynamics, mere trend analysis and projections are not sufficient for future-oriented deliberations and conjectures regarding the process of institutional change. Once the ideas factor is seriously taken into account, the crucial dichotomy in conjectures that focus on ideas as potential drivers of institutional change is the distinction between “ideology or other values that bind the future”, and “ideology or values unconnected with futures” (Stinchcombe in Tilly 1997). Until they find their ways of binding the future, the ideas from the latter category remain a set of floating beliefs, imagined solutions and seeds of the future, most of them doomed to pass away fruitless. Yet out of the many, some will become “instituted” – a reliable part of the future. This is an unavoidable process and a simple fact of life: some ideas, beliefs and designs will change the institutional arrangements or the ways of dealing with them. Thus the challenge of a speculative intellectual enterprise is double: to identify those few remarkable ideas out of the many floating around, and also, at the same time, to examine the dynamics set into motion by those that have already been “instituted”. That is indeed an exercise doomed to imperfection and many disappointments along the road. Yet one knows that besides good knowledge of the issues and a well educated intuition, the probability of focusing on the relevant is increased by a modicum of methodological discipline. The literature dealing with this type of cognitive challenge emphasizes a two-step procedure. The first step is to isolate and to focus on the issue and the domain of ideas as much as possible. The more focused the approach and the better isolated the problem, the more one manages to curtail vague speculations. Moreover, the better the issue’s area of interest is specified, the more one can mobilize specific and expert knowledge. The second step is to introduce conceptual discipline using a clear set of criteria such as importance, interest, resolvability, difficulty, relevancy, precision, credibility and evidence (Rescher 1998). With these steps and criteria in mind, the task to select those ideas influencing or having the potential of influencing the issue of democracy in international governance could be approached on safer epistemic grounds. The decision in the case of the current paper is based on a judgment of importance, relevance and sheer recurrence in the academic and public discourse. Both as an assumption and an objective, the idea of a “democracy of nations” plays a central role in the ways the international arena is seen, defined and assessed these days. Not only for the expert, but also for anybody familiar with the history of international relations theory, its shadow on the future is instantly recognizable.

The idea of equality in international relations and the ideal of a “democracy of nations” A “long view” on the evolution of the modern international system from a “democratic” perspective could identify one big idea inspiring its architecture and the visions of its future: the ideal of organizing the international arena as a “democracy

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of nations”. This idea has generated, and still generates, restless efforts to institutionalization. It inspired action in the past, is shaping decisions in the present, and is very likely to continue to be a major factor in the future. In fact, a rapid historical overview confirms that the notion and its correlates, assumptions and implications have been a major background ideological force framing the perceptions and ideas regarding international affairs. This is a big idea – a meta-level idea – an idea inspiring, framing and shaping other ideas. Today we want to believe that a sort of democratic equality should pervade relations between states. We want to believe that the international laws should be the same for all states. Today, for most of us, these beliefs seem natural. Yet a “long view” perspective shows that these beliefs are a construct of modernity and not as natural as they may seem today. Our views about world affairs have evolved up to the point that we now take for granted that any international principle or rule must apply to large and small states alike. Even as we recognize that full equality in actual policy making has not yet been achieved, an approach that would confer privileges on “the great and powerful” is now hardly defensible. Our view of the future of governance in international affairs seems implicitly defined as a move in the direction of achieving that equality. But the question is how viable is this ideal? Is it able to bind the future? Is any progress in international governance destined to necessarily be a move in the direction of greater equality and democracy among states? There is no doubt that the ideal has prompted considerable action and inspired many institutional designs, but the question remains: can this ideal really be institutionalized? Its central place in our view of international affairs is ensured. For it or against it, the evolutions of the future have to take this big ideal into account. But has it an intrinsic potential of being a self-fulfilling prophecy? Could it really work as an ultimate basis for institutional design? The question poses a profound challenge because the notions of international equality and “democracy of nations” so blatantly and evidently clash in our beliefs system with other ideas about the international arena. Those ideas seem to reflect a totally different reality. While we believe in the normative ideal of equality and democracy among nations, we view the asymmetry between countries as something natural. In fact, as we implicitly draw a line between states that can legitimately and credibly claim a voice in the international arena and states that cannot, “power” emerges as a key criterion. Although we would like to frame issues from the standpoint of democratic and egalitarian principles, in fact, whenever we deal with issues considered of real significance, we turn to much more terrestrial considerations about the “real power” of the countries involved. The point is not that one is right or wrong in so doing, but that an implicit double standard is at work. In principle, we want to think that all states have an equal status and a legitimate voice in the international arena. In practice, we seriously consider only those voices we know are backed by serious and credible power. We are so accustomed to this double standard that the “cognitive dissonance” doesn’t bother most of us at all. However, it definitely has very serious implications for institutional design in the international arena. In fact, one is dealing with a very severe structural tension that affects, both

From the “democracy of nations” … 41 directly and indirectly, attitudes, actions and future institution-building efforts. While the international system is defined formally in terms of egalitarian principles and informally by a democratic philosophy, in practice it rests on very different foundations – foundations characterized by irreconcilable power asymmetries. These tensions complicate the institutionalization process at the global level. That is not to say that there are no other important factors at work. Yet one should recognize this mismatch between ideas and practice as a main force that shaped past evolutions and as a constant shadow on future ones. The gap between principles and practice has become increasingly clear during the last fifty years or so, and it has been exacerbated by the pressure globalization has put on nation states and the international system in general. With the advent of one and only one superpower, concealing the gap has become almost impossible. To make matters worse, at the same time as the gap between ideas and practice has become a glaringly obvious chasm, the world’s climate of opinion has reached new egalitarian and democratic heights. The more international affairs comes to be formally defined by the ideals of inclusive egalitarianism, the more perverse the tension between principles and practice appears to be. It would be a mistake to think that this problem is as recent as the surge of globalization and the end of the Cold War. A long view over the evolution of the international arena during the last several centuries demonstrates how the democratic egalitarian ideal has been growing in parallel with the development of the modern international society. Given the salience of the democratic-egalitarian ideal, it is no surprise that the reaction it engenders and its practical implications have become the foundation blocks of one of the main traditions of thought in contemporary international relations theory. The functionalism-neofunctionalism-institutionalist intellectual lineage originates not only in a preoccupation with the failures of a state-centered theory and practice to sustain an international organization able to deliver a “working peace system”, but also in a concern with the perverse consequences of the notion of a “democracy of nations” (Asworth 1999; Eastby 1985). If one goes back to the founding father of this tradition, the British scholar and public figure David Mitrany, one can identify two related but separated themes he had set up at the foundation of the agenda. The first was the need to explore and construct alternative governance structures to the dominant state-centered ones. The second was that the construction should depart from the egalitarian ideas that generate a gap between normative principles and practice. Both meant an assault on the standard views of governance and sovereignty, and of the system of international order. However, while the first theme become the core of a string of schools of thought developed around different avatars of the insights outlined by David Mitrany, the second theme remained, for years, a background concern – assumed, implied, but rarely discussed. And that happened despite the salience of this theme in Mitrany’s work. In his 1955 article “The Problem of Equality in Historical Perspective”, Mitrany depicted it with clarity and precision: The relative position of states in international politics has been characterized in modern times by a legal principle which has never been practiced and by

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P.D. Aligica an actual practice which has never been legalized. Therefore any attempt to set up an organized international system was bound to bring to a head the contradiction between the formal principle of equality of states and the actual predominance of the Great Powers. (Mitrany 1966 [1955]: 103)

The entire paradigm, wrote Mitrany, elaborating his argument, seems to be carried out in the shadow of the analogy between international society, in which the basic units are the states or nations, and national society, in which the basic units are individuals. The governance of entities called “human individuals” and the governance of entities called “states” may have many things in common. Yet, Mitrany suggested, the best way to understand and assess the international arena might not be the indiscriminate use of principles, frameworks, and expectations shaped by “the domestic egalitarian political process of the last hundred years”. However, the temptation to use exactly that kind of analogy seemed irresistible. Mitrany articulates a long view reading of the evolution of the international system that explains how the tensions were built and rooted in during centurieslong historical processes. From the standpoint of both the international system and national communities, the modern era saw steady strides in three directions, all defined by the notion of equality: equality before the law (legal equality); equality in the ability to shape law and rule making (political equality); and equality of opportunity or quality of life (social equality). Most of us take for granted the interpretation of the history of national societies, a history that focuses on individuals and their progress toward increasing equality. However, that historical interpretation might equally be applicable to the history of the international society of states. Indeed, argues Mitrany, the entire modern period has seen the constant advance of the agenda of greater equality between states. From this perspective, in the second part of the last century, the pace and nature of that advance have closely paralleled the trend of increasing equality within national communities. Thus, the same type of arguments and strategies came to be applied indiscriminately to individuals and states. But the fact that we can draw a parallel between the national society populated by individuals and the international society populated by sovereign states doesn’t mean that the two should be perceived or judged by similar standards. In fact, even the narrow parallel between the development of egalitarian principles easily breaks down when we compare the history of the two trends. Legal equality did not exist for individual members of national societies in earlier times, and was attained falteringly as the appropriate law and institutional arrangements slowly developed. This developmental course was the opposite for states. Writes Mitrany: Because of the great influence of doctrine in the formative period of the modern state system, absolute equality was set up as a fundamental postulate even while international law was still in a rudimentary state. Generally it actually preceded the similar advance in the municipal sphere: States were often equal in international law long before individuals were equal before their country’s

From the “democracy of nations” … 43 law. As a principle, therefore, legal equality is fully established in the international sphere. Any people which succeeds in setting up its own state becomes ipso facto the equal of all other sovereign states in international law. (Mitrany 1966 [1955]: 105) The mere existence of a principle of international law is not enough for an effective international order, which necessarily also depends on effective universal legal and political systems. (Any legal system must be backed up by a strong political authority or a working system of such authorities that can transform states’ de jure equality into de facto equality by checking arbitrary power.) Achieving legal equality in the international sphere has, in fact, had some disturbing consequences on the political side. The history of international relations reflects a continuous struggle to adapt the formal legal principle to a working political reality. While there has been a tendency to abide by the principle of equality, there has been no institutional structure to implement it effectively. We see this even more clearly with the other two types of equality, political and social, whose implementation has been even more difficult. The emergence of the ideas of political and social equality between states as a major principle of international relations made the institutionalization process even more complicated. Nevertheless, despite all challenges and impediments, a cursory overview of the historical evolution of relations between large and small states shows increasing efforts to institute political equality. From the Peace of Westphalia to the creation of the United Nations, we witness an evolution from the absolutism of the common master to an experiment with a representative system (Mitrany 1966 [1955]). If one goes back to Mitrany’s basic tenet, the decisive force driving this change was the liberal-democratic outburst of the nineteenth century. Nations, like individuals, acquired rights of citizenship without regard to wealth or strength. Both hemispheres saw a gradual increase in the number of enfranchised citizens. The progress was not smooth since the industrial revolution and global economic expansion greatly strengthened a few Great Powers that resisted the leveling trend. Despite that setback, the trend of egalitarianism mirroring the domestic developments in the Western nations was gaining speed in international affairs. The late nineteenth century, with the growth in the number of states and the general strides toward democratization, a novel notion about the way the international arena should be organized began to gradually emerge. The emphasis on political equality between states required, by logical implication, more than a system of formally equal states. It implied a democratic international society embracing not only the states of Europe but the states of the entire world. At that moment, the idea of formal equality of states slowly began to transmute into the idea of a democratic society of states. The League of Nations was the first clear institution to materialize from this trend. Although not a fully democratic institution, the League was a clear example of the compromise between egalitarian ideals and the pressure coming from the very existence of the “power” assumption and the reality of great powers. The absence of the US from the League decisively illustrates the low chances of success

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of any institutional experiment (however democratic) that does not adequately incorporate or reflect existing power structures. The next attempt to create a democracy of states followed the Second World War. The United Nations, too, was a work of compromise: the General Assembly is fully democratic while the Security Council has a typical oligarchic structure. The Security Council also has wider powers. The limited role the UN has actually played in shaping international dynamics is a result of this design of compromise. It is hard to say whether its usefulness resulted from its democratic or its oligarchic dimensions (Mitrany 1966 [1955]). The Cold War forcefully imposed the final item on the egalitarian agenda: social and economic equality of states. The state-centered international economic development programs of those years were the peak of the egalitarian trend. Although that practice may have been driven by Realpolitik concerns, the rhetoric and ideology of social equality among states definitively established it as the key principle for evaluating and analyzing international affairs. This movement’s influence was substantially increased by a parallel theory of economic convergence and by optimistic projections of trends that the economic gap between the world’s nations would close in less than half a century. That was the context for the collapse of the Soviet Union, the end of the Cold War and the emergence of the US as the sole superpower. The reconfiguration of the global arena during the last 10 to 15 years should have been a cold shower for those believing in a social and political general leveling-off of the playing field in international relations. But while the very emergence of the US as a superpower is a harsh reality check for egalitarian beliefs and ideals, it is the US’s predominance in the world that bolsters anew those very democratic and egalitarian ideals that are represented by the American domestic political system. While domestic political life in the United States floods the world with democratic ideals and egalitarian images, in international politics the United States is unable to maintain even the appearance of meeting its own internal standards. Moreover, the mere existence of a sole superpower within the current international system contradicts some of those very ideals. The bottom line is: on the one hand, there is a historically unprecedented concentration of unbalanced power in the international arena while, on the other hand, the rhetoric and ideology of democracy and egalitarianism in all its forms is increasing. Between the two tendencies, national and international institutions are unable to cope adequately. In spite of the rhetoric of egalitarianism, and the expectations of further moves in that direction, the reality seems to have suddenly shifted in the opposite way. On almost all standards the distribution of power between states is more unbalanced than ever in modern history. Nevertheless, the legal fiction of the equal status of states and the image of a future in which this fiction becomes institutionalized survives. Although it cannot be matched politically and socially, this powerful “image of the future” in many respects defines the rules of the game of the international agenda. This is where we stand now. This is the basic reality of international relations today, as it was when Mitrany’s functionalism launched one of

From the “democracy of nations” … 45 the most successful and interesting political science programs in modern political sciences.

Globalization and alternative international governance arrangements The striking imbalance in the development of the two dimensions – the critique of the state-centered approaches and the critique of the egalitarian assumption – that define the initial program of functionalism is noteworthy. On the one hand – probably for “politically correct” reasons – the critique of the idea of “international equality and democracy of nations” was toned down, muted and almost totally marginalized. At the same time, the direction that questions the forms of international organization pivoting around sovereign states and their intellectual legitimacy, and that documents the rise of new centers of authority and power and novel forms of governance, increasingly occupied the front stage. Yet, while the international equality direction could be seen as a statement of a problem, the second direction could be seen as something going beyond a diagnostic towards an exploration into the domain of potential solutions. That is why the second dimension deserves special attention when discussing the issue of democracy in a changing international arena where the states are no longer the sole actors. The “functionalist” tradition has kept alive, in all its avatars, a powerful stream of ideas regarding alternatives to state-centered governance. It is true that the initial strong message has been diluted over the years, but today the main forms of that dilution – such as the “inter-governmentalist” and “supranational federalist” detours, and the “scientification” or reduction of the message to a ordinary academic research agenda – are on the wane. There are many factors involved: the changes in the epistemological climate compounded by an increasing interest in institutional design and normative issues are definitely at the top of the list. However, probably the most important factor is the very pressure arising from the actual developments and changes of configuration in the international arena. Globalization has indeed meant the rise of actors and institutional arrangements that challenge the traditional functions of the state. With that, new ideas have been encouraged to come to the fore. All these ideas converge into the assumption that “there is no a priori reason why social actors and some political entrepreneurs would see the organization of international relations through a system of states as their most preferred institutional arrangement”. In fact, today’s social actors “might have very good incentives to seek new forms of organizing international behavior” (Spruyt 1994: 188). With that comes the notion, this time bolstered by new arguments in precise economic terms, that there is no reason to assume that a territorial state is the optimal way of organizing economic behavior. Kindelberger’s (1984: 30) observation that “the optimum economic area is larger than the nation state, the optimum cultural area is smaller and the political area identical to it” is slowly changing from a theoretical conclusion to a practical assumption. Once the problem of a confusing gray area

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between three types of social spaces – as well as the continuous conflict between them – is defined, then the solution could be formulated with precision: The resolution of the conflict between the optimum economic area and the optimum political area should be sought not by reducing the economic dimension to the narrow political one of the nation state but rather by building institutions capable of regulating the international corporation in the interest of Pareto optimality. (Kindelberger 1984: 32) These insights should be seen in conjunction with other theoretical developments like, for instance, the theory of optimal regulation and its implications for selfregulation as optimal regulation. An interesting twist in modern economics reorients the mainstream argument for introducing regulation in a radically different direction. The mainstream case for regulation is that there are externalities which private markets would not take into account (for maximization and rationality reasons) and hence the government should intervene to ensure any external costs and benefits would be taken into account. But in practice the introduction of regulation creates new externalities. “Costs which would have been internal (and therefore taken into account by decision makers) are not borne by regulators and therefore no matter how well meaning they may be, these costs become externalities as far as they are concerned. In such circumstances, the bulk of the costs of regulation not falling on those that regulate, the amount of regulation is likely to be expanded far beyond its efficient level – which would occur when it had extended just to the point at which the costs of another regulation would exceed its benefits” (Blundell and Robinson 2000). Therefore, governmental regulation will exceed the level that could be justified if all costs and benefits are considered and over-regulation is expected to occur. In these circumstances, self-regulation emerges as a theoretically better solution because, by internalizing the costs, it could stop at the efficiency level. This instance, and others like it, forms a new front that challenges the state-centered vision. Indeed, developments that seem to be the operationalization of these ideas appear to develop in parallel with the growth of the ideas themselves. For instance, as if directly inspired by Kindelberger’s arguments, regional associations, particularly in the European Union, experiment with alternatives to sovereign rule. In so doing, they generate a complex architecture of overlapping jurisdictions at the national and supranational levels, with different loci of authority. The territorial conceptualization of authority is still there, but the movement of ideas that points beyond the traditional sovereign entity is commanding. The long-term viability of these arrangements is unclear, but in the short-term they challenge the standard views of the sovereign state as “the locus of decision making” and are a source of imagination regarding alternatives in international governance. To all that, one may add the integrative and disintegrative effects of forces such as religion and transnational organized crime networks with their more “translocal”, less territorial rule. The case of the Islamist ideology with its principle of dividing the Islamic

From the “democracy of nations” … 47 (Dar al-lslam) from the non-Islamic (Dar al-Harb) world is yet another example in which the current dominant principles are challenged. It is clear that all these ideas challenge the state-centered status quo. Yet, it is not at all clear how they advance the democracy agenda in the international arena. Even the EU is, in this respect, considered to be the bearer of a democratic deficit. That is why the current trend towards business regulation through voluntary standards setting and corporate codes of conduct and also the emergence of international business regimes, could be identified as probably the most significant development for the way the idea of democracy in international governance is conceptualized and promoted. Within these new governance structures, business in collaboration with a wide variety of actors – including states – sets the parameters for processes of production, defines general characteristics of goods and services, and deals with externalities and other problems resulting from production and operations. Due to the strong reliance on the voluntary element, and the marginal role states have in it, the new trend not only refocuses the attention on the possibility of alternative international governance arrangements, but also is a potential source of innovative ideas on democratic governance in the international arena. One of the most notable consequences of these processes and initiatives is that the relation between international business, governments and the society gets restructured, generating new forms and patterns of regulation and governance (Haufler 2001; Cutler et al. 1999). The fact is that new ideas are required by the structural changes and pressures originating in the international arena. The reality behind the current expansion of international businesses’ self-regulatory initiatives is simply that the demand for global regulation lags behind supply, as traditional regulatory mechanisms are unable to cope with the new situation generated by economic globalization (Cutler et al. 1999; Kline 1985). Haufler offers one of the best syntheses of these trends and gives the reader a glimpse of both the magnitude of institutional change and the potential domain of new ideas. On the demand side, the exponential growth of business activity due to the increased diversification of international transactions gives a new scale and scope to the need for regulatory parameters of these activities. The complexity of new technologies and the rapidity of market change make it difficult not only to maintain but also to design the kind of rules of traditional regulatory and governance systems (Strange and Smith 1996). Moreover, the new conditions raise very serious questions about whether the traditional approach is effective and desirable under current circumstances (Haufler in Cutler et al. 1999). It is very important to note that a rapid change also takes place at the level of social values or norms, and that is reflected in the shifting demands not only of consumers but also of activists and the media. More and more these are transnational groups, and their demands reflect not only information about the quality of goods but also a new normative awareness. They demand products and production processes that meet new standards for human rights and environmental protection (Haufler in Cutler et al. 1999). On the supply side, the first and foremost issue that should be mentioned is that in practice the international political institutions do not seem to be capable of regulating the international corporation to a satisfying degree.

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The existing system of international governance is “too weak, fragmented and dysfunctional” to respond quickly or effectively to these new demands. The problem is not so much that international organizations are weak; rather, the real problem is the process through which the international regulation is created. The process of international negotiation is “slow, hard and overburdened by compromises generated by the political agendas of the actors involved” (Haufler in Cutler et al. 1999). The weaknesses of the international institutions may be traced in large measure to the sovereign states that are the ultimate source of their authority. But even the most powerful national governments are unable to keep up with a very alert market that is moving rapidly. Moreover, due to the competition between states to attract foreign direct investments and international capital, national governments are increasingly reluctant to intervene in markets and in the multinational enterprises’ activities (Rodrick 1997). Thus, even the existing national and international regulatory and governance rules are not consistently enforced. The result is a “regulatory and governance void” and a perception that governments no longer have the resources or expertise to intervene effectively. This is the reason why both states and international organizations, otherwise so jealous for their authority, reluctantly started to relax their grip and acknowledge and adjust to the new realities. In areas like finance, information technology and even labor standards, governments have started to “accept the possibility that the private sector is simply more capable than the government of designing and enforcing appropriate regulations while taking as a reference and starting point the existing regulatory framework” (Cutler et al. 1999: 5). With that acceptance, new ideas and solutions creep in (Cutler et al. 1999). The phenomenon is still socially and functionally undifferentiated. The partnerships among businesses, international organizations, governments and non-governmental actors have expanded in number, but “their purpose is often such a mix of providing public goods and setting standards that their structure and function remains unclear” (Kline 1985; Haufler 2001; Haufler in Cutler et al. 1999). Yet the issue has important consequences as it potentially may change the way we understand and imagine the future and want to redesign the international arena. The emerging initiatives may have profound effects on the nature of political governance itself. Business regimes governance may substitute for governments in ways that either may undermine governments’ capacity or may complement governments’ efforts by facilitating their regulatory initiatives (Haufler 2001; Kline 1985; Dunning 1999; Cutler et al. 1999). The mere discussion of the phenomenon creates in the public debate an alternative image of the institutional future of the international arena. New forms of governance seem not only possible but also probable, and that reopens the debates about the nature of non-state institutional arrangements, their viability, and the principles and concepts that should guide them. New forms of government bring with them significant potential to re-launch the democratic vision itself. New thinking on the institutional structure of democracy is encouraged and facilitated when new forms of collective action take central stage. To sum up, bolstered by the developments and changes in the international economic arena, unconventional ideas on international governance start to gain

From the “democracy of nations” … 49 some traction. Alternative arrangements such as what is called “international business regimes” are increasingly considered both desirable and possible solutions. Consequently, the emerging new climate of opinion may make possible attempts to institutionalize forms of democratic arrangements that break from the 400-years-long tradition currently still dominant. The reign of the old concept of a “democratic” and egalitarian organization of the international arena is thus under a double pressure. The first pressure is that, even when accepting a statecentered vision of global order, there is a deep tension between the legal fiction and the political reality, i.e. between the ideas that describe the normative ideal as a legal fiction and the ideas that reflect the political reality of “power”. The second pressure is the increasing possibility and desirability of a series of alternative forms of governance based on institutional arrangements that carry with them ideas and institutional designs in which the state does not play a central role. The result is that now the idea of a “democracy of states” seems an even less likely possible institutional arrangement. Although it may continue to inspires actors, this arrangement is unable to “create solidity to the future” and to “make bits of the future solid enough to plan on” – the two conditions of institutionalization singled out by Stinchcombe (Tilly 1998). Irrespective of its developments, the idea of “democracy of nations” seems exhausted. Instead, there seems to be a wide opening for new ideas about alternative arrangements providing new institutional vehicles for democratic values and principles. With a little bit of institutional imagination, the emerging non-state arrangements seem to offer the possibility of more democratic alternatives.

A challenge to our institutional imagination The growth and institutionalization of the new ideas, with all their implications for democratization, is not a foregone conclusion. The potential for a significant influence seems to be there, but that doesn’t mean more than that. Identifying the problems of the mismatch between democratic ideals and actual practice, and between the shortcomings of the state-centered vision and the existence of alternative functional solutions to the state, is just a starting point. People may prefer to go back to the traditional way of solving the tension between the normative vision and the reality of international affairs: an ongoing structural compromise between legal fiction and political reality. As such, this compromise has been part and parcel of the working of the international system, the very way in which the system has managed to function and survive. Muddling through may continue. But compromise is only an illusory solution as it generates a cascade of other problems to be coped with in the future. The question is one of trade-offs, alternatives and costs. For instance, when they compare the legal fiction with political reality, the public is always inclined to denounce the compromise as an abuse of egalitarian principles and of democratic ideals. These ideals and principles raise expectations, while everyday compromising practice frustrates those expectations. The larger the imbalance and concentration of power, the more visible the compromises become. The emergence of the United States as the world’s sole superpower has brought

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that contradiction to a head. If there is only one great power, the chances that the structural tension between principles and practice will be perceived as a systemic failure or dysfunctionality are even more remote. The problem will tend to be attributed to the very behavior of the “unrestrained” great power. If this is the case, then one way of approaching the solutions may be through a cost-benefit analysis of the efforts put into the management of these expectations. A wide range of positions is available from (propaganda) campaigns aimed at giving a positive, non-contentious connotation to the gap, distracting the attention from it or diminishing the public’s egalitarian expectations, to the adjustment of international institutions such as the UN to better compete and balance the power(s) realities of the system. Yet all of the above are, in a sense, just variations on status quo themes. The question remains: in what measure will more or less radical solutions – i.e. solutions not hampered by egalitarian fictions, “democracy of nations” obsessions or compromises – have a say? Furthermore, in what measure will the ideas encouraging the materialization of “democratic” values or principles in new arrangements reach a threshold in institutionalization? That a democratic and egalitarian international order might be a result rather than a precondition of a working international system is one of those foundational insights of David Mitrany: It would be easy to demonstrate that neither the constitution nor the working of the new international system rest as yet on full democratic equality, but such a formalistic view of the problem is for its purpose misguided. Any attempt to play up the formal principle of state equality, like insistence on rigid sovereignty would actually block the advance [toward real equality between states]. Equality has never been the means to political community, but rather the effect, generally gradual, of political community. The growth of international equality will likewise depend on the growth of an international community. (Mitrany 1966 [1955]: 117) If Mitrany is right, the priority should not be to create, preserve, and extend an illusory state of equality between states. Instead, the priority should be to establish a sound and viable “international political community” out of the inevitable inequalities and asymmetries existing between states and the increasing number of new relevant actors. If we accept this perspective, many current developments may be seen in a different light. The current challenges of globalization, amplified by the “war on terror”, might not be just the beginning of a long process of muddling through an increasingly hostile environment under the guidance of obsolete or inadequate notions. Instead, the rise of international business regimes, the vast collaboration generated by globalization, and the “war on terror” and the unilateral initiatives adopted by the US might be seen as a possibility of a new beginning of the historical process of creating a viable international community. The challenge is to go beyond the diagnostic phase, the identification of the broad parameters of the alternative ideas and the observation that the environment is moving in a favorable direction, and to push the discussion one step further towards

From the “democracy of nations” … 51 more concrete solutions and institutional design ideas. The fact that politicians and business leaders alike see the emerging business regimes – in which businesses are embedded within arrangements that have NGOs, governments and international organizations as players in a complex and unprecedented institutional architecture – as solutions to an entire series of regulatory and governance problems is more than a favorable condition. The fact that these arrangements have to find ways to contain, negotiate and aggregate such a variety of preferences from such a variety of actors, introduces the possibility of experimenting with very concrete ideas on the nature of the design of international democratic governance itself. For instance, the ideas that link democracy and governance through the concept of “stakeholders” seem prima facie an excellent avenue for channeling the institutional design imagination. The new, incipient business regimes are built on the idea that firms are directly and indirectly influenced by individuals or groups that hold a stake in their process (i.e. stakeholders). For example, pollution from a manufacturing facility rarely influences that facility’s efficiency. The facility internalizes the cost of this pollution only to the extent that stakeholders sanction the firm, e.g. NGOs protest against the firm or consumers boycott the firm’s products etc. In these cases, the logic of collective action is much more complex than the mere coordination (cooperation) game between actors that have homogenous (and sometimes identical) preferences and values. The picture of a broader and multilevel collective decision and action arena – with many competing values, goals and relationship between actors – emerges, and with it emerges the possibility of a new approach. Thus, by recognizing that stakeholders act as a mitigating force between the actions of a firm and the consequences to the firm, one alters the ordinary paradigm and opens the way for the development of a related but different approach to the problem of regulatory and governance initiatives and their institutional materialization. The pivotal position of the stakeholders concept within the broader context required by the understanding of alternative regulatory and governance regimes, suggests the possibility of using the idea of Corporate Governance as a basic analytical framework. Arrangements that were originally related to corporation structures but are actually diffusing and becoming part of a larger social and institutional realm could then be analysed. In a break with the past that has already happened in cutting-edge political science and institutional theory, there is an evidence of potential for innovative ideas that merge two different perspectives (“corporate governance” and the “collective action” of standard democratic theory) into a unified vision teeming with insights into democratic governance. From this perspective, the stakeholders system would allow each social actor to get involved only in those specific governance domains that are of real interest to the actor. The result could be imagined as a complex architecture of overlapping governance arenas, domains and systems. The question is: do the new regimes lead to the emergence of “private authority” systems undermining the traditional statecentered “public authority” systems? If the answer is “yes”, then in what measure will the emerging private authority systems that are centered around corporations and their stakeholders continue to uphold the values and processes associated with

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the idea of “democracy”? Could a global network of overlapping (polycentric) corporate governance systems (business regimes) be an alternative to traditional state-centered democracy? To sum up, it looks like we are in the middle of one of those moments when the institutional imagination – and the institutional designs implied by it – may have a chance to influence the institutional change process. Today, the conditions and resources to go beyond the obsolete ideas and obsessions of the “democracy of nations” and to think in a truly innovative and bold way seem to have arrived. It seems possible to use the lessons we have learned and also new conceptual tools to design arrangements that combine functional and adaptive efficiency with “democratic values” in a global system of governance better tuned to the new realities.

Conclusion Both a “long view” perspective and a micro-level focused exploration converge in the observation that, currently, a configuration of factors (both structural and ideas-related) has created a context that facilitates a significant reassessment of and a constructive engagement with the problem of how democratic principles play and are institutionalized in the international arena. However, jumping from this conclusion to the corollary that these principles will automatically lead to radically new institutional arrangements would be a mistake. Indeed, on the one hand, there is a sense that the international system is undergoing a major transformation in front of our very eyes. Yet, on the other hand, it is very tempting to exaggerate the magnitude of change. Even assuming a trend in which the sovereign state is in decline, the system remains state-centric, i.e. states still control the game. The system seems to be adjusting to the new circumstances, not disappearing. There are many reasons why change is very difficult: elites in power have many incentives to resist a radical institutional transformation; the collective action of political entrepreneurs and social groups to challenge the status quo is hard to mobilize; experimentation with new institutional forms involves extensive efforts, learning and costs; and, last but not least, there are many informal barriers to the recognition of new actors as legitimate participants in international relations. Radical change is more difficult than expected even in the volatile and dynamic environment of globalization. This is why the conclusion of Spruyt’s study on the sovereign state and its competitors – i.e. that despite possible transformation of the international relations system as a whole, the formal political institutions may change very little – seems rather persuasive. Nonetheless, “in the long run, history sides with no one” (Spruyt 1994: 193). This is why probably the most important insight of a study like the present one is that, at least in terms of institutional arrangements, neither history nor logic fully dictates a specific configuration in the long run. And that leads us to the contrast and relationship between the macro-historical visions and the micro-level ideas and decision-focused perspectives. Even if the Great Transition imagined by Kahn’s “long view” is a realistic description of our predicament (i.e. there are structural

From the “democracy of nations” … 53 trends that have predetermined the parameters of social change in specific macro directions), in the long run the specific micro-level and institutional dynamics are in no way set into stone. The variety of potential institutional arrangements able and competing to fulfill similar functions seems rather large. That, together with the assumption of an open social universe, challenges the “long view” grip on the future. The “long view” big picture seems clear at a macro-historical scale, but if one wants to think through the details of institutional change, things look murkier. It is undeniable that seen from the “long view” perspective, the Great Transition has brought with it an increase of mastery. That also means an increase of the mastery of institutional change through a better understanding of the nature and limits of institutional design. The focus on ideas and choice brings to light not only a theory of institutional change in which ideas and human action really matter, but also an understanding of how critical junctures, accidents, chance and innovation shape institutional evolutions. Yet, beyond this divergence, the two perspectives converge in recognizing that these days, more than in any other time in history, it is possible for social actors to integrate values and principles in institutional change by deliberation and choice. But precisely because deliberation and choice are so salient, responsibility becomes salient. And that has profound implications for the way we approach the task of reconstructing the international arena. As Mitrany (1966 [1955]: 117) insightfully stated, “in the process of building up a political community, the line of division is no longer between strong and weak, whether individuals or states, but between helpful and obstructive, between responsible and irresponsible elements.” The author would like to thank Claire Morgan, Steve Elkin, Robert Keohane, Karol Soltan, Anthony J. Langlois and the participants in the PEGS Democracy Conference for their very helpful comments.

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Global democracy through transnational human rights Michael Goodhart

Globalization1 has prompted much hand-wringing about the fate of democracy (Goodhart 2001a), leading democratic theorists to reflect on the prospects for global or supranational democracy. Among these theorists there is a tendency to imagine supranational democracy as essentially like democracy at the national level, only bigger. Whether they propose a cosmopolitan constitutional order (Held 1995), a deliberative constitutionalism (Bohman 1999; Bohman 2004), a global discursive or public sphere (Dryzek 1999; Eriksen and Fossum 2002; Eriksen and Fossum 2000; Falk 2000; Smith 1998); or some form of transnational or multilevel federalism (Bellamy and Castiglione 1998; Føllesdal 1998; Howse and Nicolaidis 2001), contemporary writers remain wedded to theories of democracy that developed within the conceptual matrix of the modern sovereign state and Westphalian states system. While this scholarship has generated intriguing and innovative institutional models of democracy, it has for the most part clung to familiar normative models (although see Archibugi et al. 2000; Gould 2005; Kuper 2004; Saward 2000). This essay has three aims. The first is to show why statist theories of democracy are inappropriate for meeting the complex challenge of democratizing emergent forms of supranational power and governance. I shall argue that changes in the configuration of rule associated with ongoing globalization undermine the empirical foundations of familiar normative models of democracy. The essay’s second aim is to say something about what a different concept of supranational democracy, one that avoids the shortcomings of statist theories, might look like. I will outline an alternative approach that makes democracy’s core principles of universal freedom and equality the foundation for a critical reconstruction of democracy in terms of human rights. The essay’s third aim is to say something about how this alternative approach might work. I describe how a transnational human rights regime could provide an effective and legitimate foundation for supranational democracy and democratization, a necessary platform for democratizing emergent forms of supranational governance. The essay will be divided into three sections, addressing each of these issues in turn.

Global democracy through transnational human rights 55

Why are statist conceptions of democracy inappropriate? To grasp why statist conceptions of democracy are inappropriate for meeting the democratic challenges posed by globalization, one must first understand in what sense familiar conceptions of democracy are statist. Many theorists have observed that democratic theory takes the modern, sovereign state for granted (e.g., Beitz 1991; Dahl 1989; Held 1995; MacCormick 1999; Manent 1997). Many of these same theorists, however, regard the connection between democracy and (state) sovereignty as merely empirical and contingent. Some stress that democracy’s ties with the sovereign state are primarily concerned with the scope and scale of democratic institutions, which are susceptible to being refitted to social activity and interactions of a different scope and scale (Decker 2002; Held 1995); others emphasize that sovereignty’s territorial dimension is a historical artifact, (re)conceiving sovereignty as any justified (legal, political) authority and thus susceptible to being pooled, divided, parceled out, or otherwise reformulated in light of the changing demands for governance associated with globalization (e.g. Friedrichs 2001; Held et al. 1999: 9; Laughlin 2003; MacCormick 1999; Pauly and Grande 2005; Pogge 1992; Strange 1996; Walker 2003). Neither of these views adequately captures the complex interdependence of democracy and sovereignty. Modern democracy was theorized within the conceptual matrix of sovereignty, which shaped not only its empirical contours but also its normative structure. The links are both historical and conceptual (Goodhart 2001b; Huysmans 2003). Sovereignty, in Hinsley’s (1986: 1,26) classic formulation of it, is “final and absolute political authority within the political community” where no such authority exists elsewhere. Notice that in this formulation sovereignty denotes a type of authority (political) and its parameters (the political community); territory, in the form of a pre-defined, exclusive political community, is fused with the idea of rightful rule in the classic doctrine. Sovereignty thus concerns the interrelated empirical and normative dimensions of authority. The idea of an exclusive political community is both an empirical prerequisite and a normative requirement of sovereignty. Part of what made sovereignty appealing historically was its solution to the problems of multiple, conflicting loyalties and overlapping jurisdictions that pervaded medieval Europe. This particular solution had an “internal” and an “external” dimension: the existence of sovereignty entails an “inside,” the political community where that authority obtains; it also implies an “outside” composed of at least one and perhaps very many other similarly constituted political communities characterized by sovereignty (Walker 1993). Sovereignty implies international anarchy, and anarchy implies sovereignty (Waltz 1986). Sovereign authority thus constitutes both political entities characterized by supreme, exclusive territorial authority and a system comprising such entities and the relations among them.2 Many scholars have shown that sovereignty and the containerized social relations it implied never existed in anything like a pure form (Krasner 1999; Mann 1986; Taylor 1996). Yet sovereignty never purported to provide an accurate description of the world. It was rather always a prescriptive account, though certainly, as we have seen, one with empirical implications. It has – until recently – mattered less

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that the world is messier in fact than a literal reading of sovereignty would imply than that sovereignty has been recognizable as plausible and useful abstraction about the world. One of the primary uses to which the doctrine of sovereignty has been put over the past several centuries is the democratization of the state. Modern democracy is a theory of sovereignty, one in which the people possess sovereignty jointly; their collective will is sovereign within the political community. “Popular sovereignty” is nearly synonymous with democracy in the modern lexicon. The popularized version of sovereignty substituted the rights and interests of the citizens for those of the prince – Locke cites Cicero’s “salus populi suprema lex” in §158 of the Second Treatise as “so just and fundamental a rule” that one can scarcely err in following it (some editions make this phrase the epigraph for the Second Treatise). It was Hobbes who first clearly articulated the doctrine of natural freedom and equality among men and showed that among such men consent is the basis for legitimate obligation and authority. Locke, however, set the doctrine in a more democratic trajectory by elevating freedom and equality from brute facts of nature to tenets of nature’s law. And so, by making universal freedom and equality normative rather than empirical propositions, Locke established the basis for popular sovereignty and the terrain on which subsequent democratic struggles would play out. Numerous theorists have recently observed that popular sovereignty papers over an irreducible circularity: the people are supposed to constitute the polity, but who count as the relevant people in this respect is antecedently determined by the boundaries of the political community that they are supposed to constitute (see Näsström 2003; Roermund 2003; Walker 2003; Yack 2001). This conceptual circularity no doubt exists, but the conclusion that is often drawn from it, that popular sovereignty therefore has an inescapable normative hole, tension, or violence at its core, is misleading. For early theorists of (popular) sovereignty there was never any difficulty to do with circularity because the boundaries of the political community could be taken for granted. Moves to establish popular sovereignty took place within territories where sovereignty itself was already constituted. Freedom and equality do not establish popular sovereignty; they do justify the transfer of sovereignty from the prince to the people. Popular sovereignty only exists where sovereignty exists; freedom and equality dictate sovereignty’s location in the people. The conceptual circularity that has worried recent critics did not worry their predecessors in the same way because for those earlier theorists the circle had, as it were, already been drawn. They were less concerned with how its circumference had been plotted than with what went on inside it. Put differently, they took sovereignty for granted as the main organizing principle of politics and the central fact about the political world. Early on this factual assumption was dubious, with various rivals and exceptions to the Westphalian system of sovereign states persisting for a long time (see Spruyt 1994). For a variety of reasons far too complex to engage with here, facts on the ground for some time moved in a direction that diminished the size of the early factual and conceptual leap that sovereignty required. So long as the empirical regularities of politics conformed broadly with sovereignty’s central

Global democracy through transnational human rights 57 political fiction, that the state was a natural and appropriate container of politics, (popular) sovereignty remained conceptually unproblematic. Recently the acceleration of globalization has begun to alter those regularities significantly, chipping away at sovereignty’s plausibility and thus at its ideal of rightful territorial rule. The increasing shift of all sorts of social activity and interaction to the supranational level marks a significant secular change in the organization of social life. It is not that supranational activity is new or unprecedented; as critics frequently remind us, certain aspects of economic globalization have only recently reached their pre-World War I levels (Hirst and Thompson 1996). It is rather that social activity and interaction of all kinds now transpires increasingly at the supranational level, facilitated by information and communication technologies. Perhaps just as importantly, these technologies have contributed to a heightened awareness of global interdependence. Perhaps the most significant upshot of these trends is the explosive growth in global governance arrangements: everything from international financial institutions (IFIs) like the IMF, WTO, and World Bank to the UN, NATO, the International Criminal Court (ICC), and a range of other supranational governance authorities (SGAs), including treaty-based and intergovernmental forums where important policy and regulatory decisions are made on an ongoing basis. Other important forms of supranational governance are carried out by transnational corporations (TNCs) and various non-state actors. This expansion of global governance is both a response to globalization and an important instance of it. Its significance, in light of the claims I have so far advanced about sovereignty, is that it marks a change in the configuration of rule. In the Westphalian paradigm, authority originates and is exercised legitimately only within states; the ongoing expansion of supranational governance arrangements contradicts this paradigm, as more and more important decisions are taken by authorities other than states. These and related developments involving the flow of people, products, money, microbes, ideas, and pollutants make the ideal of a sovereign state seem less and less plausible and correspondingly less useful for making sense of the world around us. It explains, also, why efforts to detach sovereignty from the state, re-conceptualize it, or simply move beyond it are so appealing to contemporary scholars. The problem with such efforts, again from the perspective developed here, is that they ignore or underestimate the extent to which the meaning and functioning of democracy depend conceptually on this Westphalian state ideal. The idea of popular control within a political community is common to all modern notions of democracy, whether deliberative, participatory, or representative. Deliberation is about, participation is in, and representation is for making collectively binding decisions. The legitimacy of these decisions in most democratic theories hinges in part on how they are made and in part on who has made them. It is this latter dimension that reconciles democracy’s core principles of freedom and equality with political obligation in the modern state. When sovereign authority is taken for granted, popularizing it makes each citizen the author of the laws, whether in the Lockean, Rousseauean, or Kantian sense, preserving each citizen’s freedom and equality. This is not some abstract intellectual claim: whether in the person of Ralph Nader leading the charge against trade agreements that in

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his view undermine democratically-enacted environmental safeguards (Nader and Wallach 1996) or of John Bolton (2000) insisting that the ICC violates the right of the American citizens to make their own laws, popular sovereignty is regularly invoked in contemporary political debates over the sources of legitimate authority in the age of globalization. There is simply no way to globalize a concept of democracy – parliamentary, deliberative, discursive, participatory – premised on the idea that rightful rule consists in the collective autonomy of the sovereign citizens of a particular territory.3 Thus, only by replicating the conceptual matrix of sovereignty on a global scale could modern democratic theory be extended globally. Ongoing debates about democracy in the European Union (EU) illustrate this point: whether and how it might be possible to imagine and construct democracy in the absence of a single demos, a shared sense of political values and solidarity, is the key point at issue in those debates. It is clear how to make the EU a state, but unclear whether it would be desirable to do so. And, furthermore, it is unclear how to make the EU democratic without making it a state, even if many would find it very desirable to do so.4 Some scholars have recently tried to rework this dimension of popular sovereignty into an “all-affected” principle, one that revives the medieval notion that all those touched by a decision should have a say in making it (e.g. Held 1995; cf. Gould 2005). The difficulty with such attempts is that they encounter the same conundrum when confronted with the question of who decides what constitutes being “relevantly affected” in a given case.5 The all-affected principle assumes that global democracy must look essentially like democracy within the state: that it must consist in equal – and it should be noted in the modern context, equally infinitesimal – influence in the making of collectively binding decisions. (Even more depressingly, many scholars argue that democracy requires only that citizens enjoy the equal opportunity to exercise their equally infinitesimal influence over the making of collectively binding decisions.) There are fundamental doubts about the appeal and value of any account of democracy explained and justified in terms of a person’s role as self-governing “author” of collectively-binding decisions – doubts that apply as much to the modern nation-state as to schemes for global government (see Dunn 1998; Pateman 1970). Leaving those doubts aside for the moment, it is clear that the all-affected principle, even if it could be realized, preserves one key dimension of sovereignty – supreme will – even while disavowing its territorial underpinnings. Like other accounts of modern democracy, the all-affected ideal mistakes the form of democracy in the modern state for the essence of it. That is, it treats popular control over sovereignty as essential to democracy when in fact the democratic element of popular sovereignty lies rather in the arguments for why it should be popular – in the notion that everyone is, in a normative sense, free and equal, or ought to be treated as free and equal as a matter of right. It is this idea, intimately linked with the pursuit of a dignified existence and a better life, that is the stuff of democracy. It is also this idea that points beyond sovereignty toward a more promising model of global democracy.

Global democracy through transnational human rights 59

What might global democracy look like? One way to begin thinking about what democracy might look like without sovereignty – i.e. without the restrictive assumptions about its form and meaning that sovereignty entails – is to work out what its core principles of freedom and equality would require in an era of globalization.6 Historically and conceptually, the innovation that inaugurated the modern democratic era was the idea that all people are, or should be, morally free and equal. Together, as thinkers like Hobbes and Locke saw, these two principles establish the foundation of legitimate authority in consent (cf. Pateman 1988: 39ff.) In practice, the early theorists of popular sovereignty used a variety of arguments to deny to many the freedom and equality that the theory both promised and required. The democratic implications of freedom and equality were often avoided through bogus arguments about individuals consenting to their own subjection – whether through labor or sexual contracts (Marx and Engels 1978; Pateman 1988).7 This supposed consent rendered workers and women “dependent”, a status used to disqualify them from citizenship. Yet over time the logic and appeal of universal freedom and equality proved irrepressible, providing the excluded with powerful weapons in their struggle to achieve full citizenship. As these critics quickly pointed out, the argument for freedom and equality only works, it only abolishes all claims to natural authority, if freedom and equality are genuinely universal. Once that universality is admitted in theory, democratic practice becomes a struggle for its full realization against entrenched prejudices; democratization signifies the progressive elimination of the various systems of domination and oppression in and through which those prejudices are maintained. One way that people have thought politically about how to achieve greater freedom and equality for previously excluded or marginalized groups is in terms of human rights. Human rights are inherently political because they have direct institutional implications, both negatively with respect to what various actors cannot do and with the institutions needed to protect against such actions, and positively with respect to what rights enable actors to do and the institutions needed to facilitate those actions. Human rights are democratic when they aim at realizing freedom and equality (ending domination and oppression) for everyone. There is a long tradition within democratic theory in which human rights provided the conceptual vocabulary of democratic empowerment. What I have called “emancipatory democracy”, historically aimed at something like the elimination of domination and unwarranted interference (oppression) in social and political structures.8 This aim was commonly expressed through demands for (equal) human rights and for institutionalized guarantees protecting individuals from the vagaries of arbitrary rule. Thinkers as diverse as Paine, Wollstonecraft, the Chartists, the younger Mill (in his better moments), Douglass, Stanton and many other nineteenth-century abolitionists and feminists, some democratic socialists, and numerous twentieth-century leaders and theorists of progressive social movements around the world have all embraced human rights as central to the meaning and importance of democracy. A democratic political strategy built around human rights recognizes that what often distinguishes citizens from others is the set of rights that citizens

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enjoy – including guarantees of core civil rights and affirmative rights to political participation, to various social guarantees, and to fair, open, and transparent legal and administrative treatment. Efforts to secure these rights by outsiders or those marginalized within society are thus part and parcel of struggles for citizenship. Moreover, human rights can extend democracy – extend protection against domination and oppression – into new domains of life, as in Marshall’s (1992) classic account of the three “waves” of rights: civil, political, and social. The (ongoing) struggle for social rights extends security against domination and oppression into the economic sphere, an area long regarded by liberals as a private domain immune from the claims of democracy.9 It promises to expand democracy still further into the “private” spheres of domestic and social life, and into the nascent sphere of supranational governance, seeking to end domination and oppression in all of them. While classical liberal and republican theory treated freedom, equality, and independence together as a status characteristic of citizens, many theorists of democratization instead regarded them as political objectives. This pursuit of political emancipation for previously oppressed, dominated, and excluded people has defined progressive political movements from abolition and civil rights to women’s suffrage, homosexual rights, and anti-colonial and anti-authoritarian struggles. In all cases, the logic and normative force of arguments for inclusion is strikingly similar: the present treatment of this group or class of persons, or the existing structure of social and political life, is inconsistent with the democratic promise of freedom and equality for all. This view remains vital in contemporary democratic theory as well, in the revised republicanism of Pettit and Skinner, and especially in the democratic theories of Carole Pateman, Ian Shapiro, and Iris Young. This emancipatory tradition of democratic theory and democratization suggests the outlines of a reinterpretation and reconstruction of democracy suited to the age of globalization. I have argued for a conception of democracy as human rights in which democracy is understood as the political commitment to universal emancipation through securing the enjoyment of fundamental human rights for everyone (Goodhart 2005: 135ff.). Thus democracy’s core principles of universal freedom and equality are realized through human rights, including civil and political rights, rights to fairness and security, and social and economic rights. These classes or clusters of rights are fundamental in two related senses: each is necessary to emancipation (the elimination of domination and oppression from social relationships and interactions) and each is necessary to the secure enjoyment of the others (cf. Shue 1996). Securing these rights institutionally against standard threats (see Pogge 2000: 52) fulfills democracy’s commitment to emancipation for all. Two caveats are needed here: first, in defining fundamental rights as those needed to secure emancipation, I do not mean to imply a fixed or static account of politics. On the contrary, defining fundamental rights this way reflects that democracy as human rights serves a crucial/utopian purpose, pointing toward an ideal political concept of emancipation or freedom and equality for all. If all of the rights are realized and people still suffer domination or oppression, either their

Global democracy through transnational human rights 61 rights are not actually secure or they have not been defined expansively enough to achieve their democratic objective. Democracy as human rights thus relies on a sort of reflective equilibrium to ensure that all of the fundamental rights are being adequately secured and that those rights do, taken together, emancipate – that is, eliminate domination and oppression. The list of rights must, as both a political and an epistemological matter, be left open to contestation and ongoing redefinition. The second caveat is that democracy as human rights does not aim to create a good or fulfilling life for anyone; it is utopian in its vision of a society free of domination and oppression but minimally demanding in terms of its substantive concept of the good life. Fundamental human rights as defined here provide the democratic basis upon which groups and individuals construct meaningful lives as they think best; rights provide the ground rules governing social relationships and interactions. Much more could be said about the theoretical and conceptual dimensions of democracy as human rights – including about the definition of fundamental rights, about how to secure rights, about the normative and epistemological requirements of universality in a theory of this type, and so forth. But, for the moment, I want to focus on how this reinterpretation of democracy proves useful in thinking about the challenges posed by globalization. First, conceiving democracy in terms of the realization of fundamental human rights for everyone captures the promise and appeal of democracy much better than definitions that emphasize the institutional or procedural mechanisms of representative government.10 Indeed, it provides a more persuasive justification for existing political arrangements commonly recognized as democratic than do standard accounts based in popular sovereignty – autonomy, deliberation, collective control, etc. Democracy as human rights understands representative institutions as necessary for the enjoyment of fundamental rights: they provide the only feasible way to ensure rights of political participation for everyone, providing institutionalized channels through which individuals can contest decisions, challenge policies, and advocate for their rights. Participation is a fundamental right because only through participation can individuals and groups ensure that their rights are respected; we know of no way to design nonparticipatory mechanisms for securing rights (Shue 1996: 84).11 The point is not to denigrate or diminish the centrality of representation to democracy; it is rather to reconceive its democratic value and function. Democracy as human rights abandons the implausible claim that representative government makes citizens individually or collectively self-governing. Instead it supplies a justification that explains the central role of representation as crucial to securing fundamental rights. Responsive and participatory institutions guarantee people’s right to influence and contest decisions, and thus protect them from domination and oppression. The right of participation includes, but is not limited to, voting for representatives; it extends to all sorts of participation in all systems of governance. This suggests how democracy as human rights expands the scope and reach of democracy without simply duplicating its parliamentary form; it demands innovations through which the variety of governance arrangements (not just government) can be democratized – made responsive, participatory, and protective of fundamental rights. This possibility ties directly to a second distinct advantage of democracy as

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human rights in tackling the challenges of global governance: its rejection of sovereignty as a necessary element of democracy. Democracy as human rights is a reinterpretation and reconstruction of democratic theory that tries to work out the implications of freedom and equality. It begins with no assumptions about the proper locus or limits of political authority. This reconstructive approach clarifies that there is no principled, democratic reason why democracy should be restricted to governments; the theory focuses on the threats of domination and oppression wherever they occur. Thus it is concerned not only with governments but also with the threats posed by other forms of governance, including the supranational governance exercised by IFIs, TNCs and other SGAs, and by non-state actors; it is concerned with governance wherever it occurs. Institutionalized guarantees of fundamental human rights are both possible and plausible in our world today, can be achieved progressively, and do not require a world state or elaborate and improbable schemes. Democracy as human rights thus shows that significant supranational democratization can take place through means within our reach; it is no utopian retreat. It does require that sovereignty no longer be accepted as a justification for ignoring violations of fundamental human rights or as a pretext for resisting the creation of supranational democratic political authorities. And finally, it requires that we abandon the normative ideal that sovereignty embodies: that all legitimate political authority must be territorial in nature and in reach.

How might democracy as human rights work globally? So far I have sketched what democracy without sovereignty might look like, and how it might be global. It remains to consider how it might work. Democracy as human rights has important implications for local and national politics. Its primary objective is to institutionalize secure guarantees for all fundamental human rights. This objective would entail the redesign of many existing electoral and social institutions as well as the creation of new ones; it would also require important changes in law and policy. Democracy as human rights is less concerned with the borders of particular jurisdictions than with secure guarantees for rights within and among them. Here, since our concern is with supranational democracy, I shall focus on one set of institutions crucial for ensuring rights related to supranational governance: a transnational human rights regime.12 Democracy as human rights envisions a central role for a transnational human rights regime in any attempt to achieve global democracy. In this it is quite distinctive from theories that aim to replicate the norms and institutions of sovereign democracy at the global level through parliaments, deliberative frameworks, or other mechanisms. Among the institutions proposed for securing fundamental human rights are a set of courts and commissions closely and consciously modeled on the European Court of Human Rights (ECHR) and, to a lesser extent, the European Court of Justice (ECJ) and the Inter-American Court of Human Rights (IACHR). As these models suggests, these courts and associated commissions would be regional rather than global (which should help to reduce worries about culturally insensitive or imperialistic interpretations of human rights). These

Global democracy through transnational human rights 63 courts and commissions would exercise “supranational” jurisdiction (see Helfer and Slaughter 1997: 277) and have three primary functions. First, they would hear individual complaints regarding the violation of fundamental human rights. Such complaints might arise against states, TNCs, IFIs, or other SGAs. The courts and commissions would also exercise “last resort” jurisdiction similar to that of the ICC. Second, the commissions and courts would oversee the development and implementation of human rights impact assessments required of all SGAs, and monitor their performance through retrospective human rights audits. Impact assessments would review, with popular participation, the likely human rights impact of major policies and initiatives undertaken by SGAs. Audits would monitor internal performance as well as compliance with and implementation of impact assessments, much on the model of social accounting or of the democratic audit of the UK (see Beetham 1994; Beetham 1999b; Klug et al. 1996). Finally, the courts would have independent investigative powers (similar to the powers of Spanish judges or UN rapporteurs) allowing them independently to initiate probes and prosecutions. The courts and commissions would clearly exercise judicial authority, but this should not suggest a legalistic model for realizing human rights. These institutions would make efforts to mediate disputes and reach mutually acceptable resolution of difficult cases; they would also serve as participatory forums for deliberation about democratic human rights. Put differently, they should be social and political, not merely legal, institutions. That said, the remit of these courts and commissions would be strictly limited to the protection and promotion of fundamental human rights. It would not supplant the International Court of Justice (the World Court) or the ICC – though that is not to say that the former, in particular, is not in need of serious reform. Skeptics might wonder about the democratic source of the authority these courts and commissions would exercise. Clearly they do not derive this authority from an electoral mandate (though they might have electoral procedures of a kind to promote accountability). Rather, these institutions are democratic because of their contribution to protecting and promoting fundamental rights. They are directly justified because they are necessary to securing fundamental rights against standard threats (though not sufficient to do so). They are directly justified, that is, by the concept of democracy itself – much as parliamentary rule is directly justified by popular sovereignty. This justification shows that the purview of these institutions must be strictly limited; should they step beyond their role in securing fundamental human rights, say by dictating law or policy in areas unconnected to these concerns, they would themselves become sources of domination. For this reason these courts and commissions must themselves be responsive and participatory and include features to ensure their openness and transparency. Democracy as human rights does not require global institutions for decision-making (though it is compatible with them); it does require that these decisions and processes by which they are made be consistent with fundamental democratic rights. A transnational human rights regime is necessary precisely because, in the absence of global government, there seems no other way to democratize supranational forms of governance.

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I shall use the limited space remaining to explore how a transnational human rights regime along the lines of the one sketched above might contribute to global democracy and democratization. I shall argue that it would do so in three ways: by constraining the exercise of supranational power, by subordinating that power to democratic norms and priorities through providing a framework for supranational political agency, and by reinforcing democracy and promoting democratization within states. Together these three effects would significantly reduce the domination and oppression associated with supranational governance. Domination and oppression are undemocratic (anti-democratic) exercises of power, violations of freedom and equality. On the account of democracy advocated here, democracy seeks to control and regulate power through institutionalized guarantees of fundamental human rights. Such constraints within states are typically achieved through (democratic) government, which uses its authority and jurisdiction to limit the uses of power. Statist approaches to global democracy typically recommend replication of the familiar mechanisms of democratic government at the global level on the argument that since power must be constrained at this level government must be reproduced there as well. Yet while democracy as human rights does not rule out global government on the statist model, it does not require it, because it does not maintain the link between legitimate democratic authority and popular authorization typical of sovereign democracy. Rather, this approach recognizes the potential for a properly designed, effective transnational human rights regime to put meaningful constraints on the exercise of power supranationally. For such a regime to be effective the cooperation, or at least the acquiescence, of states would be required; they would have to provide financial resources, political support, and enforcement capacity to such regimes for them to succeed.13 As this passage suggests, democracy as human rights relies on states’ institutional capacities and it thus presumes a democratic political commitment from them. These capacities should not be confused with sovereignty as I have been using that term; sovereignty is a type of authority, but not all authority is sovereign. While some critics will object that this level of cooperation is unlikely to materialize, it is reasonable to respond by asking whether any other proposal for global democracy would achieve similar results while requiring less. Certainly global deliberative institutions, federal arrangements, or parliamentary government all demand much more from states than does a transnational human rights regime. Global civil society, according to its proponents, operates without – and sometimes against – states, but it unclear how it could deliver anything like secure, institutionalized guarantees of human rights.14 When compared to other schemes for global democracy and democratization, then, the robust and expansive transnational human rights regime envisioned by democracy as human rights is clearly the least demanding option. Moreover, institutions like the ICC and ECHR show that such cooperation is a real possibility. To provide effective guarantees of fundamental human rights, this regime would have to subordinate both states and other actors – SGAs, TNCs – to its authority. This would mark a significant departure from and expansion of the existing human rights regime, which is piecemeal, has limited enforcement power, and typically has

Global democracy through transnational human rights 65 jurisdiction only over states. The ECHR and IACHR provide models for how such authority might be institutionalized, though these models would need substantial improvements in their ability to deal with non-state actors. Consider first SGAs: most of these are creatures of states designed to facilitate coordination of interests and cooperation in realizing these interests. If states are their masters, there is no reason in principle why those masters could not direct them to make compliance with and protection and promotion of fundamental human rights priorities. Leaving aside the ethical and pragmatic arguments for doing so, there are dire practical objections about whether it could happen (though again, such objections seem less dire with respect to a transnational human rights regime than with other proposals for global democracy). The short answer – I cannot give a longer one here – is that persuading states to do so will require significant political will; cultivation of such will must become a priority for democrats around the world. Subordinating TNCs to human rights requirements is in many respects easier; corporations want to sell things, and states retain the authority to prevent them doing so within their jurisdictions if they do not comply.15 Again, the problem is finding the political will to use state authority to these ends. The second way in which a transnational human rights regime would contribute to global democracy and democratization is by helping to subordinate supranational power to democratic norms and priorities through providing a framework for supranational political agency. Recall that in democracy as human rights, democracy is no longer understood in terms of sovereign control over the making of collectively binding decisions; it does, however, impose stringent demands on governance institutions, including openness, responsiveness, and institutionalized guarantees of participation and mechanisms enabling influence and contestation.16 A transnational human rights regime can promote openness, participation, influence, and contestation by protecting the political and “civil” rights of individuals in connection with political participation at the supranational level, and by providing the backbone of a meaningful form of supranational political agency that would allow people to make their participation count. Jacobson and Ruffer (2003) conceive of supranational political agency as engagement. On this view, electoral accountability gives way to a system in which agency is directly embedded in legal rights and restraints, and in which access to networks of judicially mediated legal rights becomes the central mechanism of self-determination (Jacobson and Ruffer 2003: 74–5). There is no reason, however, why this embeddedness of rights or the engagement it facilitates must be limited to legal rights and judicial institutions, as Jacobson and Ruffer indicate. Bohman (2004) and Bellamy and Castiglione (2003) have argued in the EU context that contestatory mechanisms can be integrated into bureaucratic agencies, legislative committees, and a range of other governance institutions. This type of agency seems particularly well-suited to addressing the growing diversity of supranational legal, administrative, and regulatory systems of governance (Jacobson and Ruffer 2003: 81–3). As Jacobson and Ruffer argue, this “enabling” conception treats human rights as necessary preconditions for effective agency. This clarifies the role of the transnational human rights regime

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in anchoring such agency: it can guarantee some rights directly and promote the institutionalization of others through its jurisdiction over SGAs and other governance entities. The enabling conception of democracy illustrates the central role and importance of participation in the realization of democracy as human rights. Unlike sovereign models of democracy, which typically rely on some version of the “all-affected” principle, democracy as human rights justifies this participation not on the grounds of autonomy or sovereign authorization but rather as necessary to eradicating the domination and oppression that result from closed, unresponsive, and unaccountable systems of decision-making. It is both less demanding and more persuasive normatively and institutionally. The third way that a transnational human rights regime would promote global democracy and democratization is by reinforcing democracy and promoting democratization within states. I have already mentioned the important role that states would have to play in any effective human rights regime. Democratic states are most likely to respect human rights at home (Hathaway 2002; Neumayer 2005), and their commitment to human rights norms can bolster the transnational regime politically (Mayerfield 2001). Moreover, democratic states foster robust civil societies, which contribute to holding states and the transnational regime itself accountable (Neumayer 2005). It seems clear, then, that democratic states are pivotal to the success of the regime. So to the extent that the transnational human rights regime stabilizes democracy and promotes democratization within states, it contributes to its own success. It stabilizes democracy through what Moravcsik (2000) describes as a democratic “lock-in” and what Mayerfield (2001) calls “democratic insurance.” In essence, states create supranational checks on domestic politics through participation in an effective transnational human rights regime, hedging against backsliding or against anti-democratic pressures through binding supranational commitments. The regime promotes democratization through its promulgation of human rights norms, which create a normative logic of appropriateness surrounding human rights compliance. It also can catalyze and support domestic civil society actors in pushing for liberalization and democratization within states (Risse and Sikkink 1999; Risse 2000; Thomas 2001). Global civil society can also play an important role here (Florini and Simmons 2000; Khagram et al. 2002; Kumar 2000). Finally, the regime could coordinate the development and implementation of a program of incentives and conditions that would entice states to democratize, including making positive steps toward human rights prerequisites for participation in various governance regimes (Hathaway 2004; Hathaway 2002) and changing the incentives that can encourage anti-democratic behavior (Pogge 2000; see also Pogge 2001). Again, much more could be said concerning the democratic potential of an effective transnational human rights regime. I shall simply conclude this section by pointing out one additional advantage of democracy as human rights as an approach to global democracy and democratization. As the foregoing arguments make clear, this approach does not omit or neglect democracy at the state level when thinking about democracy supranationally. Statist arguments that conceive global democracy on sovereign models often ignore that in much of the world anything

Global democracy through transnational human rights 67 like genuine democracy remains a distant hope. How a global democratic regime would operate given the lack of democracy at lower levels remains unclear. On the approach adopted here it is clear how global democracy and democratization could proceed incrementally, as more states became democratic and signed on to the regime. The regime itself would see a steady increase in its capacity, resources, and effectiveness as more and more states came into the fold. There would not need to be a founding convention or constitutional moment when the world agreed to become democratic. Rather, the growth of democracy as human rights would reflect what in the EU contexts is called multi-speed, variable-geometry development. It is thus possible to imagine how democracy as human rights might be implemented – which is not to say it would be easy or even likely. Even this possibility, however, proves a decisive advantage over rival accounts.

Conclusion This essay has outlined some problems with familiar approaches to global democracy, suggested what an alternative account of global democracy might look like, and sketched an account of how that conception of democracy might be realized. It has argued that statist approaches to global democracy remain committed conceptually to sovereignty, that democracy’s core principles of freedom and equality for all suggest a reinterpretation of democracy that takes its main objective as universal emancipation achieved through securing the enjoyment of fundamental human rights for everyone, and that this account of democracy as human rights might be achieved in part through an effective transnational human rights regime. Given the scope of this argument and the limited space in which to make it, the essay might well raise more questions than it answers.17 In so doing, I at least hope that it pushes the debate about global democracy in a productively provocative direction.

5

Exploring the narratives on economic globalization: making room for democracy David K. Moore

This chapter critiques mainstream liberal economic narratives on international trade and economic openness, arguing that democratic theory and popular political discourse has been often too quick to accept attempts by these narratives to naturalize and hide power in the economy, to accept these narratives as the result of objective and neutral study of the economic and social realms rather than as contestable and ideologically-loaded,1 and to accept that any realistic democratic project must work to accommodate itself to the imperatives of the economic order as portrayed by these narratives. In particular, as a central theme in these narratives,2 I will focus on the case mainstream economists make for free trade. Healthy democratic politics requires that citizens and their elected representatives have sound information upon which they can make informed decisions, and that we have a meaningful range of alternatives from which to choose. This, in turn, requires that public deliberations are based on empirically sound analyses of relevant social phenomenon, and that we are careful to avoid setting aside contestable normative claims as uncontestable givens. As our elected representatives attempt to determine public policy, and as citizens attempt to determine both who will represent them and attempt to participate in the decisions that govern the spaces of their everyday lives,4 there is less chance for sound decisions to the extent our deliberations deviate from these imperfect standards. My claim here is that the mainstream economic narratives on international economic openness substantially fail in these regards, and that these failures are largely due to neglecting the often hidden or submerged power in the assumptions employed. I want to be careful here to make clear that the logical consequence of my claims is not that we should adopt protectionist policies per se, or that international openness is always necessarily harmful to democracy. Rather, the point is that we must improve the quality of the narratives to more accurately acknowledge the contestable normative choices we are making, as well more accurately reflect the costs and benefits of the range of alternatives among which we may want to choose as members of our polity, which is in turn part of a politically and economically interdependent world. This will require cross-disciplinary engagement between democratic theorists, economists, and many others. My argument is organized into three interrelated, but distinct, parts. First, I offer some general critiques of the assumptions and aims of mainstream economic

Exploring the narratives on economic globalization 69 discourse that, while not limited, are relevant to international economic narratives. I will explore the basic explanations contemporary international economists give for trade and that serve as the basis for the case for free trade. In the second section I will examine how these analyses neglect or deny power in the market, failing to fully account for the inequalities among economic actors, and how these problems undermine the case for free trade regimes as they conceive them. Finally, in the third section, I will focus on how the mainstream economic narratives ignore the role of political power in the construction and support of markets, and how this power distorts the accounts of trade put forth in these narratives.

A neutral, objective science Mainstream economics is generally portrayed as comprised of neutral authorities presenting only objective knowledge about their subject matter that they gain through rigorous scientific investigation. While I do not want to challenge the genuineness of motives, the problem is that these portrayals function as rhetorical maneuvers that claim greater authority than is due, and mask the ideological aspects of the narratives. Here I will briefly trace some of the general problems with this portrayal, and set the stage for the critiques of the later sections.5 The first charge against mainstream economics is the tendency to want to bracket normative concerns as not central to their undertaking. Mainstream economics is self-portrayed as focused on empirical matters, drawing conclusions from objective analysis. It is a descriptive endeavor that can inform decision-makers of the empirical reality but does not itself have a normative or ideological ax to grind. The most obvious problem with this portrayal is that central to the mainstream study of economic is an assumption of efficiency as the standard for judgment. Efficiency is treated as a self-evident good, and that the natural end to human activity is the desire for more stuff to consume for a given level of inputs. As we shall discuss, international economists explain trade in terms of efficiency, and base their support of free trade entirely on the supposed efficiency gains from this trade. The second problematic tendency in mainstream economics is a focus on aggregate costs and benefits that effectively treats the individual members of that aggregation as meaningfully equal. International economists acknowledge that certain individuals may lose jobs due to trade, but argue that aggregate benefits allow society to compensate those losers while still benefiting. Yet, these aggregate benefits tend to be unequally distributed in ways mainstream narratives neglect. Further, where there are efficiency gains from trade that are unequally distributed, these inequalities have important social, economic, and political implications that usually go unanalyzed by economists – as if it is purely the aggregate benefits of more stuff, regardless of distributional impacts, that is important. Mainstream economists tend to model the market as a realm of voluntary action with no significant power inequalities, or even assume that power is limited to the political sphere and is absent from the economic sphere. As we shall see in the second section, economists tend to read power out of the economy and to ignore inequalities of power among market players, mistaking a realm of concentrated

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private property for “the market”. It is as if mainstream economists are stuck in the seventeenth and eighteenth century struggle against feudalism, mercantilism, and despotic monarchs who intrude into others’ social and economic activities to serve themselves, their political friends, or their whims. Contemporary democracies, however imperfect, are a long way away from the seventeenth-century monarchy, both historically and morally. While power is still exercised to affect the economy, it is significantly more likely that this power is being exercised to serve some semblance of collective advantage, not private prerogative. In fact, in liberal democracies, the realm in which power is mobilized to attempt to satisfy private prerogative is now the economic realm, where the norm is concentrated private property (corporations) and markets. Moreoever, these markets are far from the perfectly competitive markets Adam Smith desired, because of their lack of capacity for one actor to mobilize their economic power to dominate another. It is not that the state is now benign; rather, it is well past the time when mainstream economics needs to drop the assumptions of the seventeenth and eighteenth century and begin to critically examine the power regularly exercised in the domain they study. Despite claims to be neutral objective students of social reality, scholars of economics have a long history of using the mantle of science to support ideological beliefs that they largely refuse to submit to critical normative and empirical scrutiny. Normatively, the adoption of the views listed above, along with problematic notions of autonomous rational actors pursuing profit, remain the unchecked beliefs of mainstream economic discipline, despite centuries of challenges to such assumptions. At least within international economics, the scholarly discussions in recent decades focus almost entirely on constructing models to explain trade and international financial flows. These formal models are rarely, if ever, empirically tested, as if the models themselves are adequate proof of the way the world works rather than a means of generating hypotheses about the way the economy works that then need to be subjected to rigorous empirical examination.6 From early days, scholars of economics have used their position to serve their normative beliefs. Quesnay’s work emulated the science of his day, but his concern was advising the king so that he could, as “co-proprietor”, lay claim to the nation’s wealth through taxes (Buck-Morss 1995: 444). Adam Smith is clearly making the case for the small landowner and merchant against the mercantilist system supported by state power. As Krugman and Obstfeld notice, Ricardo knows that his appeals for the repeal of the Corn Laws will help capitalists at the expense of landowners. Krugman and Obstfeld state: “From his [Ricardo’s] point of view this was all to the good; a London businessman himself, he preferred hard-working capitalists to idle landed aristocrats. But he chose to present his argument in the form of a model that assumed away issues of internal income distribution.” Interestingly, they then defend this move by claiming that “politics and intellectual progress are not incompatible” (Krugman and Obstfeld 1997: 59). However, one must also notice the politically loaded labels they choose in describing Ricardo’s preference for “hard-working” capitalists compared to “idle” landed gentry, as if one can safely presume that capitalists are in fact hard-working, and therefore

Exploring the narratives on economic globalization 71 morally deserving. Certainly, it is true that politics and intellectual endeavors are not mutually exclusive, but the problem is dressing up one’s arguments to hide one’s partiality and using science, at least in part rhetorically, to reduce objection and enhance the apparent veracity of one’s claims. Krugman and Obstfeld themselves, when defending the economist’s view of free trade, contend that economists emphasize the benefits of free trade to offset the power of those who stand against it, stating that: “It is the traditional role of economists to strongly support free trade, pointing to the overall gains; those who are hurt usually have little trouble making their complaint heard.” (1997: 58). In other words, according to Krugman and Obstfeld, economists tend to downplay the potential harms and overplay the potential benefits of free trade. Further, many of the potential harms identified here and elsewhere are absent from the economic literature, and seemingly ignored by a large segment of professional economists in their zeal to defend their preference for the concept of free trade (Moore 2003: 1–181). This is not to say that economists are bad people, or that they are not engaged in a rigorous pursuit of knowledge about the economy. And so, we should not dismiss free trade out of hand; rather, we must bring greater critical scrutiny to the discussion of free trade.

Mainstream economics’ case for free trade In order to dig deeper into the case for trade put forth in mainstream economic narratives, we must first understand the core of that case. Economists have developed three basic models to understand why we have international trade.7 All three models attempt to explain trade by focusing on whether or not there is a kind of efficiency gain. Ricardo’s comparative advantage model examines trade by looking at a single factor of production (usually labor). It contends that if two countries (A and B) both produce the same two goods, and if one (country A) produces both goods more cheaply than the other (called an absolute advantage), then the each country will produce the goods in which they have a relative advantage, rather than country A producing both goods and country B producing neither. This is because Country A will increase its returns by specializing in the good in which it has the greatest advantage and importing at least some of the other good, and both countries will be able to purchase more of the two goods for the available amount of the factor of production (Ricardo 1996: 89–104 and 208–21; also Krugman and Obstfeld 1997: 13–26). The Heckscher–Ohlin Factor (H–O) Model builds on Ricardo’s by allowing the economist to explore explanations for international trade considering more than one factor of production, or even multiple sub-classes of a single factor (e.g. skilled and unskilled labor). Where you have two nations with different levels of abundance in multiple factors of production, the countries can make gains similar to those hypothesized by the Ricardian model by specializing in the good that is most intensive in the factor in which the country is relatively better endowed (Krugman and Obstfeld 1997: 67–86). The Monopolistic Competition model examines trade in imperfect markets

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(Krugman and Obstfeld 1997: 121–55; Dixit and Stiglitz 1977; Negishi 1961; and Brakman and Heijdra 2004). Both the Ricardo and H–O models assume competitive markets, i.e. many small producers and consumers of the same good or service. However, most goods and services markets are less than perfectly competitive (and often are better characterized as oligopolies), and a large portion of trade is intra-firm and thus avoids market mechanisms. According to the Monopolistic Competition models of international trade, in imperfect markets where economies of scale can be realized,8 and where trade is allowed, we will see the rise of an integrated international market that is not only more concentrated (i.e. fewer, larger firms) but also has lower costs and prices. On the one hand, consumers in both the home and foreign markets will likely see greater competition (i.e. more firms in each market than before trade) while also gaining the increased efficiency from greater economies of scale resulting from the fewer number of larger firms in the combined economies (Krugman and Obstfeld 1997: 133–7). As with the H–O model, countries will tend to specialize in those goods and services that are intensive in those resources in which they are relatively abundant. In an industry like auto manufacturing, what we may see are dramatic shifts to intra-industry trade rather than more traditional inter-industry trade of the Ricardo or H–O models (Krugman and Obstfeld 1997: 137–40). The basic conclusion one draws from these different explanations for trade, presuming one agrees with them, is that if trade is happening, it must be for our collective advantage. The view often put forth is that free trade brings aggregate benefits to society through efficiency gains. There is more stuff for everyone to consume at lower prices. While some members of any society may lose from that trade eliminating jobs in their particular industry, society can afford to compensate the losers and still remain ahead of where they were before the trade.

Reading power out of the market In this section, I will examine how the mainstream narratives tend to read power out of the economy, seeing it as a domain of the state but not of their subject matter. In international economics this has been particularly pronounced in recent decades. I want to focus our attention on three key areas of concern. First, I want to look at the problematic way in which these narratives tend to dodge the messy problems of power in the market when they try to explain trade in imperfectly competitive markets. Second, I will raise concerns of corporate power in an environment of international economic openness and capital mobility. Finally, I examine the impact of the unequal distribution of costs and benefits on citizens and democratic polities. In perfectly competitive markets, producers and sellers of goods and services have no power in the market, i.e. they are “price takers”. However, much international trade is far from perfectly competitive; instead, only a few producers (oligopolies) have and exercise market power (Krugman and Obstfeld 1997: 127–32). Rather than being price takers, in oligopolistic markets the sellers of goods are to some extent “price makers”, in that they can affect the price, quantity, etc. of the goods or

Exploring the narratives on economic globalization 73 services available in that market. They also may act as oligopsonies (few buyers) as buyers of labor (especially where workers’ skills limit their options to an industry or location limits the number of firms hiring those with such skills), raw materials, intermediary goods, and marketing, financial, legal, and accounting services. In the case of oligopsonistic, oligopolies are thus price makers both as consumers and as sellers, effectively deploying their market power to squeeze both ends of their node in their commodity chain(s). The Monopolistic Competition models used by economists to understand international trade in imperfect markets avoids the problems of market power because power is difficult to model (Krugman and Obstfeld 1997: 127–32). We can see why when comparing two of the seminal works in the economics of imperfect competition, which both came out in 1933. Edward Chamberlain’s The Theory of Monopolistic Competition assumes away some of the messiness (especially aspects that consider the power of market participants) of actual imperfectly competitive markets, making it attractive to economic modelers. In contrast, Joan Robinson’s Economics of Imperfect Markets maintains much of the messiness of reality, yet has been almost entirely forgotten by contemporary international economists. Chamberlain’s approach attempts to reduce imperfect market relations to mathematical equations, and is therefore attractive to the contemporary scholarly fashion in economics to employ mathematical models to study the economy. Robinson’s approach, however, does not attempt to squeeze reality into something reducible to mathematics (Chamberlain 1962; Robinson 1965; see, also, Keppler 1994). While it should be noted that freer trade can increase competition in imperfect markets, thus reducing any particular firm’s market power, the benefits to trade may not be what the models predict. First of all, in an oligopolistic market, there is no guarantee that savings in costs will be passed on to consumers, as the models anticipate. Rather, oligopolistic firms, through their market power, may maintain prices and pass on only a portion (if any) of the cost savings to consumers. Certainly more of the cost savings than the monopolistic competition model of trade anticipates will be passed on as profits to shareholders (an effect that has obvious redistributional impacts). There is some evidence in the auto industry that this is in fact happening. Take GM’s highly profitable Suburban (in fact GM’s most profitable vehicle), now built primarily in its Silao, Mexico plant. After the North American Free Trade Agreement (NAFTA), GM shifted production from its US facilities, where worker compensation is $22 an hour, to the Silao plant, where worker compensation is $3 an hour (Lippert 2002). Despite a significant savings in labor costs due to “free trade”, the price of the Suburban has risen, not fallen.9 We also must ask if oligopolistic trade is, in fact, more efficient than the alternatives. Monopolistic competition models of trade bring with them the assumptions that oligopolistic firms behave as profit-seeking entrepreneurs and that this will lead to increases in efficiency where economies of scale are possible. This makes for an interesting circular argument: we know that international trade will happen when efficiencies can be gained through economies of scale, so if we see trade it must be more efficient (therefore good). However, we know that neither entrepreneurs nor managers of oligopolistic firms behave entirely in this manner (Coase 1988;

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Chandler 1977; Cyert and March 1992). Firms often act to insulate themselves from competitive pressures to increase efficiency. This is why so much is spent on building brand loyalty and setting up barriers to market entry. Oligopolistic firms are better characterized as bureaucracies (often multiple bureaucracies within the same firm) than as efficiency or profit maximizers. From this perspective, decisionmakers within the firm may be acting to maximize their power, protect their sphere of interest, climb the corporate ladder, hit a particular target that enriches them personally at the expense of the good of the firm and its shareholders, etc. Moreover, increasing the size of the firm can lead to greater inefficiencies as well as increasing economies of scale (Leibenstein 1987). The relationship, then, between efficiency and oligopolistic trade is more ambiguous than the monopolistic model of trade allows. An increasingly large share of international trade is intra-firm: within multinational corporations (MNCs) rather than the more traditional notion of one firm trading with another (inter-firm trade).10 Rather than gains in efficiency from increased scale, a good portion of the increase in trade in free markets dominated by oligopolistic MNCs can be explained by these firms taking advantage of transfer pricing and tax havens to avoid taxation, and by the government subsidies on exports and foreign investment practiced by most of the OECD countries.11 This trade is induced by MNCs avoiding paying taxes and receiving government subsidies that give them a competitive advantage over non-MNC rivals.12 The small manufacturer lacks the same capacity as a large MNC to take advantage of playing the international tax game or the bidding wars between governments to attract their production facilities. This shifts the tax burden from more mobile parties (MNCs) to less mobile parties (small business and citizens), and reduces revenue for programs democratically-elected officials think is in the national, state, or community interest. In considering the costs and benefits of trade, we need to remember that what we are dealing with is concentrated private property and not a market. We should not confuse private property and markets. Markets can exist without private property, and private property, when concentrated, can distort and undermine markets. If we believe that markets are efficient allocators of resources, which they can be, we need to be wary of concentrated private property to the extent that this distorts market mechanisms. Capital mobility and market power Turning from the trade side of international economics to the finance and capital side, mainstream international economics today tends to support the openness of international finance and capital flows (again, the justification is the efficient use of capital). What you tend not to see is an acknowledgment that the increased capital mobility in a regime of free trade increases the leverage of the owners of capital over workers and communities. As capital becomes increasingly mobile relative to labor, workers are put at a disadvantage in their bargaining with their employers over a whole range of issues – both because of the rhetorical use made of capital

Exploring the narratives on economic globalization 75 mobility and because of the actual possibility of capital flight. An extensive recent study shows a fairly high rate of plant-closing threats made during union organizing drives in the US, that many of these plant closure threats implied or explicitly cited moving to Mexico (post-NAFTA), that the threats were generally unrelated to the financial condition of the company, and that they were very effective (dramatically lowering the election win rate of the organizing drive), especially in more mobile industries (Bronfenbrenner 2000). The power owners gain through the increased mobility of capital, and the popular perception of that mobility, has contributed to other insecurity-related effects. Despite nine years of sustained economic growth in the US between 1991 and 2000, accompanied by extremely low unemployment and tight labor markets, worker insecurity increased to levels higher than the depths of the 1980–81 recession (Bronfenbrenner 2000: 4). Traditionally, during periods of tight labor markets and low unemployment we see increases in workers’ feelings of security and the rise of wage-push inflation.13 Instead, US workers are “working longer hours, getting fewer benefits, and failing to recoup past wage loses …” (Bronfenbrenner 2000: 2–3). Then US Federal Reserve Governor, economist Laurence Meyer, posited the following explanation: corporate restructuring, globalization, and technological change have increased workers’ insecurity about their jobs. As a result, workers have been willing to accept some restraint on their real wages in order to increase their prospects of remaining employed, leading to a more moderate rate of increase than would otherwise have occurred at any given rate of unemployment. (Bronfenbrenner 2000: 3–4) While it is extremely difficult to quantify the impact of the increased power of firms over their workers, at least some of the free-trade benefit workers supposedly reap from cheaper prices of consumer goods is being transferred to owners and managers of firms through lower worker salaries and benefits, and worse working conditions. Free trade, citizens, and the composition of a democratic society When economists talk about the winners and losers or income redistribution from free trade, they almost always mean to convey how, in any given country, some industries gain from increased trade and some lose. Their usual prescription is that if the winners compensate the losers, there is still an aggregate benefit to trade for each nation. This compensation is usually in the form of increased taxes going to pay for unemployment, health, retraining, and relocation benefits for displaced workers in the losing industry (Krugman and Obstfeld 1997: 57–60, 77–8, 111–12). However, even in theory, it is difficult to adequately compensate the “losers” for even the economic costs of the loss of one’s livelihood, being forced to relocate, and the decimation of communities from free-trade-induced production relocation. How do we compensate for the real social and psychological costs? I have yet

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to hear this soundly answered by mainstream international economists, or by the policy makers and business people their perspectives influence. In reality, the effort to compensate the losers in particular industries is often an inadequate afterthought. Still, in some ways the deeper problem is that economists miss out on many more subtle, but important, sets of winners and losers according to their own models. The benefits of trade all accrue to the owners of businesses and to consumers. To the extent that workers benefit, it is mainly as consumers rather than as workers. There are some important democratic ramifications to the benefits of trade coming to people qua consumer, at their potential expense qua worker. While most of us in the abstract would like to afford a higher standard of living through increases in the purchasing power of our wages, it is important that we consider the democratic impacts of the loss of efficacy in the important places and spaces of people’s lives. Democracy is not limited to the formal governmental sphere, but has to do with all spaces in which the power to make collectively binding decisions is exercised (Bobbio 1987: 17–42; Moore 2003; Dahl 1985; Lindbloom 2001: 242–4; Bowles and Gintis 1987: 72–5). We need to think in terms of a continuum of democratic efficacy in these spaces, looking at the ways in which democracy is enhanced or curtailed. As workers are made more insecure by the threat of capital mobility under freer trade, their leverage in the decisions that govern them in the places where they live – both their workplace and community – is seriously impaired. From a democratic perspective, trading efficacy for the possibility of consuming some more stuff is a worrisome exchange deserving of greater public scrutiny and discussion. Additionally, free trade has a serious, negative redistributive element to it. If the benefits of free trade go to owners and upper management of businesses and to consumers, trade is, in effect, widening the inequality gap both in a particular country and globally. Upper managers and owners of businesses tend to come from wealthier segments of society, so benefits that accrue to them at the expense of workers clearly have a negative impact on equality. On the consumption side, economists tend to have a blindspot in their consideration of people as abstract individuals, and thus indistinguishable from one another. However, if the benefits of trade for most people come through consumption, the benefits accrue most to those who consume the most. Thus, both of the benefits from trade benefit the well-off more than those less well-off. We have seen dramatic increases in inequality in the US since the 1970s, and, while there are many factors in this, we can suspect that the opening up of trade has been an important contributor.14 Further contributing to inequality, countries with an abundance of high-skilled labor vis-à-vis low-skilled labor will see high-skilled workers benefit from trade, while low-skilled workers will do worse (Krugman and Obstfeld 1997: 77–8). There is a strong case for a more robust redistribution via government policy to ameliorate the inequality-inducing redistributive effects of free trade. We know that economic and market power inequalities translate into political inequalities that are incompatible with healthy democracies.

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Neglecting the state role in constructing markets In this section, I will examine some of the ways in which the state uses power to play a formative and foundational role in markets largely neglected by mainstream economic narratives.15 These uses of power raise questions about the case for free trade, as well as call into question the disconnect between what states negotiate under the guise of free trade and the case for free trade. I will look here at the problems of pricing and trade as a function of state power, then on the political constructs of comparative advantage, and then, finally, on trade agreements. While scholarly economics does discuss transportation costs as an important factor in explaining whether a good will be traded, it often fails to fully consider the real-world costs societies and polities bear in transportation. What costs are included in the price of transportation are, to a significant extent, politically determined. Most countries subsidize transport costs through taxation policy and infrastructure spending. Moreover, societies and governments induce trade by bearing the “externality” costs of transportation (Moore 2003: 206–23). Externalities can include depletion of non-renewable resources, property and health damage from pollution, introduction of invasive species, and so on. All these subsidies falsely induce trade by shifting costs from those party to the transactions to the society as a whole. A standard premise of neo-classical economics largely ignored in this case is that, to the extent possible, the costs associated with trade must be internalized in the prices in transactions, sending the proper signals to the parties in the transaction. This problem is further magnified by the difficulty of translating all costs into economic costs, such as the value of a life lost or of an individual’s health. Imagine, if you will, requiring all the shareholders and high-level managers of a firm engaged in trade to ingest or inhale all the pollutants produced by their share of the transportation required for that trade, along with the distribution of profits to them, or asking the end consumer to do the same. How much trade would be avoided? The existence of externalities is the result of the political decisions that determine which costs we force parties to a transaction to pay, and which costs we charge to all or part of society. For instance, the state can attempt to shift some of the costs for building and maintaining the transportation system to the users of it through taxation of those users, or it can charge these costs to all citizens in the form of unrelated taxation. Likewise, a country can attempt to better incorporate the cost of resource depletion and pollution by taxing those activities that deplete nonrenewable resources and create pollution. For the case economists make for free trade to even partly hold, economists must insist that all countries engaged in free trade come as close as possible to internalizing the full costs of trade to the parties to the trade. This could be in the form of taxes on general transportation activity (e.g. carbon or fuel taxes, or infrastructure use fees), or it could be targeted directly at international trade in the form of tariffs on imported goods. To not demand in the strongest terms that free trade must include such measures is a professional failure. Its consequence is inducing trade that is not beneficial in the aggregate, and trade that subsidizes profits and cheaper goods for those parties to this induced trade, at the expense of the rest of us. How much trade would be avoided by such

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measures? A review of the international economics literature leaves one with little information to make even a rough estimation. Certainly, not all trade is induced due to the undervaluing of transportation costs, but it is difficult to imagine that induced trade is not a significant efficiency drain and a shift of wealth from society to the participants in the trade. Democratic decision-makers, both elected officials and citizens, need good information on the true costs and benefits of trade, including the portion of the costs society bears, in order to make sound trade policy decisions. The political constructedness of comparative advantage In Ricardo’s discussion of comparative advantage he says that: “It is quite as important that our enjoyments should be increased by the better distribution of labor, by each country producing those commodities for which by its situation, its climate, and its other natural or artificial advantages it is adapted …” (Ricardo 1996: 92). This is the only place in which he mentions artificial advantages, a subject largely ignored by international economists. We must ask ourselves: why is Hong Kong (or any other place) such a good place to make blue jeans?16 Does it grow lots of cotton or indigo cheaply, or make dyes cheaply? Is it close to the major blue-jean markets that would keep transport costs down? The answer to these is a clear “no”. Turning to labor-related comparative advantages generates a whole slew of follow-on questions. The mixture of labor skills, the price of labor, how demanding it is, etc., are all, to some extent, politically constructed. It matters a great deal what kind of education system a country has, what its labor and worker safety laws are, and how it enforces its laws. Especially important is the questions of whether workers are allowed to organize, and if those organizations are independent of the government or employers? We can look at environmental laws, investment in transportation and communication infrastructures, and government support of technological research in the same way. Tax laws and tax competition can create comparative advantages, shifting costs from the producer and consumer onto society to induce trade (and capital mobility) through changing advantage (Moore 2003: 83–92, 206–23). There are myriad ways in which comparative advantage is politically constructed.17 The point is not that we should, therefore, do a better job at artificially constructing our own advantages, but that when we engage in free trade we must be aware that not all advantages are natural, and the resulting patterns of trade may be distorted by political steps that we may want to scrutinize and contest.18 If one could remove the politically constructed aspects of comparative advantage, as well as transportation and externality subsidies, how much trade would still be attractive? Economists cannot answer these questions. Much more work needs to be done to adequately answer these questions, and the burden of proving aggregate benefits from trade falls on its proponents in the absence of such answers. It would seem reasonable that some levels of tariffs would be appropriate to help discourage the subsidization of trade that would not occur if you got the prices right and substantially reduced the politically constructed advantages. Moreover, these

Exploring the narratives on economic globalization 79 tariffs would differ for the same goods imported from different countries based on differences in how they attempt to internalize transportation costs and how they politically construct advantage. For instance, a country that protects workers’ rights to organize should not charge a tariff on goods imported from a country that provides the same protections in law and practice, but it should charge tariffs on goods imported from countries that fail to provide such protections. There will still be differences in relative factor costs and potential efficiency gains that cause trade, but this trade will not be induced on politically-constructed advantages.19 You’re defending what, exactly? It is not clear that what is being negotiated under so-called “free trade” agreements is really focused on free trade or efficiency gains. When one actually reads the free trade agreements, one is amazed at how little they are actually about free trade. A good portion of the NAFTA agreement and the Uruguay round of the General Agreement on Trade and Tariffs (GATT), which created the World Trade Organization (WTO), were about protecting the most profitable and politically influential industries of the “advanced” economic nations (e.g. entertainment, biotechnology and pharmaceuticals). This includes protections of intellectual property rights, which usually institute industry-preferred protections of their monopoly power over a product. The Trade Related Aspects of Intellectual Property (TRIPs) portion of the WTO Agreement provides 20 years of patent protection for pharmaceuticals, including for products developed using the knowledge of people in less-developed countries about plants indigenous to them – products that are then sold back to those same people at monopoly prices (if they can afford them). In fact, one of the main themes of the Uruguay round of the GATT was harmonization of global standards. In most cases, such as regulations to protect health, worker safety, and the environment, the bias was toward downward harmonization from the standards of economically advanced countries. The one glaring exception was that the TRIPs Agreement to provide patent protection required an upward harmonization of standards for most countries (Wallach and Sforza 1999: 100–29). In addition to the harmonization of many health, environmental, consumerprotection and safety standards downward, and the protection of key industries from competition and free trade, free trade agreements extend expansive rights to international investors, including corporations and shareholders. (Perhaps most notorious of these is NAFTA’s Chapter 11 – North American Free Trade Agreement 1993; Public Citizen, 2001). These investor protections allow private investors to sue signatory governments in special tribunals for compensation for regulations that they believe infringe upon their rights. Under Chapter 11, companies can sue if a government denies a permit to construct a toxic waste facility, tries to enact regulation of toxic additives to gasoline, tries to implement international environmental agreements, or even provides parcel and courier services by a state-sponsored postal service.20 Even the threat of a potential challenge to a particular law or regulation can have – and has had – a stifling effect

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on the ability of democratically elected legislatures from passing laws so that they put other goods ahead of international business interests.21 Part of the effect of free trade agreements is to make for a more profitable environment for international investors and enhancing capital mobility, which, as our earlier discussion of capital mobility and comparative advantage suggested, may undermine some of the benefits of free trade. The recently collapsed “Doha Round” of WTO trade talks provides further support to the notion that so-called free trade agreements are often not mainly about allowing market efficiency to determine trade or even really about open trade among countries on equitable terms. Also called the “Development Round”, the Doha Round was originally intended to address key trade-related concerns of economically less-developed countries. In particular, the framework established at the Doha Ministerial Meeting and the earlier Singapore Ministerial Meeting (1996) was to emphasize the liberalization of trade in agricultural products to open the highly protected and subsidized agricultural markets in the EU and wealthy nations, such as the US and Japan, to the goods of less wealthy nations. By September 2003, many developing countries’ delegations walked away from talks at the Cancún Ministerial Meeting, and in July 2006 the Doha Round was declared dead (although some initial revival efforts have since occurred). There are three main reasons for the walkout by economically less-developed countries to the 2003 meeting and the collapse of the talks. First, US and EU proposals were widely seen as falling significantly short of meaningful liberalization in the agricultural sector and the mandates adopted at the Doha meeting. Second, US and EU budgetary moves were to increase agricultural subsidies rather than taking steps to begin reducing them. And third, the US and EU attempted to introduce a set of issues (often referred to as the “Singapore Issues” after the 1996 Ministerial Meeting there) that would place expensive regulatory and regime-building burdens22 on economically less-developed countries’ governments, as well as require further deregulation of capital markets and additional rights for foreign investors. The Singapore Issues would siphon off scarce governmental development and welfare resources, and were seen as both intrusive and counter to the aims of the Doha Round. In effect, the wealthy nations were telling poorer nations: “you gave us the ability to protect our most profitable sectors and deregulate capital controls and extend rights to foreign investors during the Uruguay Round with the understanding that you would get some of your key concerns addressed in the follow-up round (Doha), but we weren’t really serious about lowering formal and informal trade protections on our agricultural markets and now we’d like to revisit some issues that we couldn’t get you to agree to before.” This is, of course, something of a straw man, and the situation and conflicts in the Doha Round were more complex and contested. Yet, there has seemed little willingness by wealthy nations to meaningful reductions on barriers to free trade in agricultural issues, and a continuing emphasis on the terms of international investment (Stiglitz and Charlton 2005: 1–6 and 57–65; Klapper 2006; Schott 2004; Wallach and James 2006; and Kohr 2006).

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Conclusion Even when there are serious problems with the economic narratives on globalization, there is much we learn from seriously engaging with them in an informed manner. There is certainly a kernel of wisdom in the notion that all-else-equal, free trade may provide some aggregate benefits to both societies engaged in that trade. We learn from the problems that if we are to benefit from free trade, then we must get the prices right on the costs to transport goods and the costs to regulate that trade. These prices must further include the externality costs shifted from the parties who directly benefit from the trade onto society, to the extent that it is possible to reduce the wide range of externality costs to a monetary amount. Only then can we be reasonably sure that states and societies are not inducing trade for the benefit of some at the expense of the whole. We must further ensure that certain insidious types of politically constructed comparative advantage are not employed to induce trade. Most particularly, we must insist on the enforcement of at least a minimal level of certain democratic rights, such as the right of workers to organize and bargain collectively, and the protections necessary to ensure a safe, healthy workplace free from abuse. To the extent that a country refuses to grant and effectively enforce these standards, the trading regime must permit states that do guarantee such protections to enact some reasonable level of tariff. Similar steps should be permitted when one country allows firms to shift the costs of pollution and other harms onto its society, but not the other country. There are numerous ways to reduce the shift in relative political and economic power from workers and localities to mobile capital. Effective state support for workers and communities taking control of facilities when firms relocate, ending the tax advantages firms get when they relocate, especially abroad (Shuman 2000: 167–8), and cracking down on the use of transfer pricing and other mobilityinducing tax avoidance schemes are just a few possibilities. Even if these measures to help ensure that political power does not induce counterproductive trade are put into place, we still have problems with the distribution of benefits of trade. Making income taxes more progressive, higher corporate dividend and capital gains taxes, and more robust state spending to help the poor and middle class are all appropriate possibilities. None of these measures would be easy to enact. However, when the mainstream economic narratives that inform democratic politics remain unchallenged, they discourage well-informed democratic deliberations. One of the most democratically harmful aspects of the mainstream narratives is a tendency to portray economic globalization as a purely economic matter best left to experts in trade, finance, and economics using standards of judgment internal to those fields. The international economic system is constituted politically, is a site of political power beyond just intrusions by state actors, and is politically consequential. It is a political arena that cannot be left to the supposed experts in economic matters. It requires democratic theorists and all others concerned with democracy to reach across disciplinary boundaries, and the development of informed discussion across those boundaries.

6

Judicial networks Jens Meierhenrich

This chapter critically analyzes the emerging scholarship on judicial globalization (Koh 1997; Raustiala 2002; Slaughter 2004; Slaughter and Zaring 2006), focusing in particular on the salience of information networks, harmonization networks, and enforcement networks in the international system. Based on evidence from cases, the chapter demonstrates that the nature of judicial networks is far more heterogeneous, their contribution to international governance far less consequential, and their operation far more complex than is commonly assumed. By evaluating not only the benefits of judicial networks, but also their costs, the chapter provides a critical perspective on the rule of law in the international system. The analysis has five parts. First I will examine the theoretical and empirical foundations of international network analysis (INA), by which I mean the application of social network tools by international lawyers to explain international governance. After this general critique of recent scholarship on international network analysis, I will offer particular critiques of this scholarship, focusing, respectively, on information networks, harmonization networks, and enforcement networks, and the contribution of each to international governance. Finally, I will conclude and consider implications for the theory – and practice – of international law.

Judicial networks By sidestepping the role of markets, on the one hand, and the role of hierarchies, on the other, the application of social network analysis (SNA) to the international realm promises to provide a more accurate picture of the organization of political and economic activities in the international system. Dissatisfied with the prevailing perspectives, INA has drawn our attention to forms of international exchange that bypass markets and hierarchies. And yet much of what goes for INA in international law is both theoretically and analytically deficient. Let me discuss each deficiency in turn.

Judicial networks 83 Network theory For David Knoke (1990: 8–9), a leading network analyst, “[n]etwork analysts proceed by developing formal models to represent accurately selected features of real-world social behaviors (that is, their models are isomorphic with reality).” What is the purpose (and intellectual payoff) of social network analysis? According to Knoke (1990: 9), “A formal network model permits examination of social structures by rigorously applying mathematical graph and topology principles to the data. Social structures can be displayed as pictorial graphs involving points and lines or, equivalently, as algebraic matrices. By mathematically manipulating these network representations, the structural analyst seeks to uncover the fundamental forms and processes of social and political behavior.” And indeed, international lawyers from Harold Hongju Koh (e.g. 1997) to Anne-Marie Slaughter (e.g. 1997) have been in search of such fundamental forms and processes in the international realm. (For an example of the contribution of non-lawyers, see Zürn 1998). Their respective characterizations of the structure of the international system link two distinct observations, and does so, as we shall see, in a rather problematic fashion: First, the idea that other people than those who seem to be in charge are making the real decisions, and second, the idea that no one is making the decisions – they are driven by facts on the ground, by natural forces, by unconscious motives or by invisible hands” (Kennedy 2005: 4). Whereas Koh, with his project of theorizing the “transnational legal process,” is implicitly indebted to some basic tenets of SNA – for example, when he claims that transnational law is a blending of municipal and international law (Koh 2004; see also Djelic and Sahlin–Andersson 2006) – Slaughter makes this ontological debt explicit. Although not mathematically inclined, Slaughter’s INA shares with SNA the assumption that networks are at the heart of an ever-expanding slice of (international) social life, and that the set of relations among these actors is as important, if not more important, than the contribution of markets and hierarchies to (international) governance.1 She writes (2004: 166): “A disaggregated world order, in which national government institutions rather than unitary states are the primary actors, would be a networked world order, a globe covered by an increasingly dense lattice of horizontal and vertical government networks.” Some have described the intellectual product that resulted from disaggregating the state as a “theory of global interstices, a theory of the gaps” (Anderson 2005: 1258). Slaughter offers both a theory of the power that can exist in exploiting the interstices between sovereign states and a theory of the power generated through new structures of authority to close those gaps. Global networks can create genuinely new forms of authority that are at once liberated in some special sense from their original jurisdictional framework and yet remain undeniably governmental, in the sense that they are wholly creations of governments that have pre-existing grounds of legitimacy. The double function of power in the interstices, and the combined functions of governments and networks, is a fundamental element in Slaughter’s forceful theory. Before I turn to an internal critique of this “forceful theory”, it is worth exploring whether Slaughter has paid her intellectual debt to SNA. It appears that she has

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not. Absent from applications of INA to problems of international law are, for example, discussions of the methodological tools of network analysis, advanced and otherwise. No mention, let alone use, is made of advances in network measurement, network sampling, model fitting, the analysis of centrality, positional analysis or block modeling, diffusion analysis of networks, the theory of random graphs, the analysis of longitudinal network data, or related innovations (for example, see Carrington et al. 2005; Newman et al. 2006). Inasmuch as Slaughter’s heuristic (or metaphorical) use of the network concept is innovative, her version of INA is disembodied. In Slaughter’s version of INA, for example, it is never entirely clear how to identify a network. Defined as “a pattern of regular and purposive relations among like government units working across the borders that divide countries from one another and that demarcate the ‘domestic’ from the ‘international’ sphere” (Slaughter 2004: 14), the concept has many empirical referents – arguably too many. Populating these “like governing units” on Slaughter’s argument are regulators (e.g. finance ministers, securities regulators, central bankers), legislators, and judges – in other words, representatives from all of the traditional branches of government in the Western constitutional tradition: the executive, the legislature, and the judiciary. How much networking, however, does it take to constitute a network? How much exchange – talking, meeting, negotiating – between regulators, legislators, or judges is required before we can speak of the existence of a network structure (as SNA uses the term)? As for operational precision, the measurement of network effects is problematic absent a specification of the processes and mechanisms – i.e. dynamics – of networked governance in the international system. What Slaughter calls “networking,” Koh, as we have seen, refers to as the “transnational legal process” (see also Franck 1995). Both, however, fail to specify how exactly the comity, or sociability (Degenne and Forsé 1999: 28–30), among actors (from bureaucrats to activists beyond borders) that is at the heart of their respective models of international law produces international governance – or international cooperation, a form of international governance that some take to be INA’s principal dependent variable.2 INA has been largely silent on “how to determine whether these government networks are actually solving problems or merely talking about problems, writing reports, suggesting standards, holding meetings, socializing, and so on. National governments, international agencies, and large corporations consume ever greater resources that may or may not be justified by the quantity or quality of the entities’ outputs. Why should the phenomenon of government networks be any different? And how does one measure outputs so as to evaluate whether the networks are actually contributing anything” (Anderson 2005: 1276)? Aside from bringing into play the methodological problem of measurement, this underlines the underspecified nature of the theoretical argument. From Slaughter (2004: 24), the most prominent (and most prolific) representative of INA, we hear that networks in international law contribute to international governance “by creating convergence and informed divergence”; “by improving compliance with international rules”; and “by increasing the scope, nature, and quality of

Judicial networks 85 international cooperation”. However, how precisely these creations, improvements, and increases materialize remains a mystery. In the case of judicial networks, “Slaughter invests great faith in judges of domestic courts as builders of a new legal order, but offers no clear plans by which they will undertake their work. It is assumed that judges, mindful of basic notions of judicial independence and propriety, can construct this order themselves without the assistance of a clear ethical outlook. According to Slaughter the shared precepts to which judges all over the globe are increasingly looking are not highly politicized notions of a common global good” (Mills and Stephens 2005: 20). What makes matters worse, as we shall see, is the fact that Slaughter “does not present sufficiently persuasive empirical evidence to support her conclusions” (Anderson 2005: 1276). Network analysis If a network theory amounts to a consistent body of statements about the life cycle of a network, a network analysis reveals the relational dynamics governing contingent interactions among loosely connected units within the specified boundaries of a network. What is to be gained by illuminating the structure of these interactions? The structure of relations among actors and their position within the network, or so the argument goes, has “important behavioral, perceptual, and attitudinal consequences both for the individual units and for the system as a whole” (Knoke and Kuklinski 1982: 13). Yet the current methodology of international network analysis, especially in the realm of international law, is empirically deficient. While both Slaughter and Koh have a penchant for anecdotes, neither favors systematic data analysis, whether quantitative or qualitative. This is surprising seeing that Slaughter commented already in 1995 on the paucity of her “anecdotal survey” which had featured “a relatively small universe of examples” (Slaughter 1995: 102). A decade’s worth of network analysis should have netted more than another round of anecdotes. What has been lacking in INA thus far has been a proper attention to research design, i.e. the rules of social inquiry. These rules “are relevant to all research where the goal is to learn facts about the real world” (King et al. 1994: 6), which includes INA. They are particularly important in instances like ours, “when data are limited, observation tools are flawed, measurements are unclear, and relationships are uncertain” (King et al. 1994: 10). The collection of empirical data is typically the third component of any research design, after the choice of a research question and the development of a theoretical framework. Collection of this empirical data in pursuit of any network analysis, whether SNA or INA, must be methodological: it requires the imposition of partitions. The process of partitioning is indispensable for establishing the contours of the population of social objects, and the type(s) of relationship connecting them, that forms the foundation for network analysis. “The population may be all Fortune 500 corporations and the relations may be their interlocking directors and their product purchases from one another. Or the population is all capitalist industrial nations, with their trade ties and military alliances as the two relations of primary

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interest. Or the people in a social movement may comprise the population, with their coordinated participation in protests and demonstrations as the focal relation” (Knoke 1990: 235). As will become readily apparent when we return to the domain of international law, “[p]artitions are unavoidable because the innate transitivity of relations quickly mushrooms into unmanageable quantities of data” (Degenne and Forsé 1999: 22). The preceding discussion provided a brief, general critique of recent scholarship on international network analysis. Three particular critiques of this scholarship now follow. The focus is on performance liabilities of different types of networks in international law. The analysis revolves around three such types: information networks, enforcement networks, and harmonization networks.3

Information networks As examples of information networks, Slaughter (2004: 100) cites the “networks of national constitutional courts”, which, on her argument, “are explicitly focused on the provision and exchange of information and ideas.” In this type of network, generally speaking, “talking is the primary activity … These are information networks, created and sustained by the valuable exchange of ideas, techniques, experiences, and problems. In many ways these networks create the equivalent of collective memory and collective brainstorming over time.” (Slaughter 2004: 51). Slaughter has illustrated the character of information networks by describing different forms of “transjudicial communication”, i.e. communication among courts, whether municipal or international, i.e. across borders: Transjudicial communication, while a seemingly small phenomenon … is nevertheless an important instance of interaction among judicial institutions around the world. Many of these institutions are bound by multiple ties, both formal and informal, but ultimately by none so powerful as a common commitment to the rule of law. The meshing of that commitment, through increasingly direct interaction, is more likely to establish an international rule of law than a single international court. International government requires common formal institutions; international governance is more likely to require communication and coordination among existing institutions. Courts are a fine place to start. (Slaughter 1994: 137) What exactly do these courts do? If we follow Slaughter (1994: 99; 103–14), they “are talking to one another all over the world”, engaging in “vertical”, “horizontal”, or “mixed vertical–horizontal” communication, and doing so by way of “direct dialogue”, “monologue”, or “intermediated dialogue”. Slaughter has illustrated a number of scenarios of communicative action: The dialogue between the German Constitutional Court and the ECJ suggests the possibility of a relationship of collective deliberation on common legal problems; the citation of a US Supreme Court decision in India, or a European

Judicial networks 87 Court of Human Rights decision in Zimbabwe, reflects a less interactive process of intellectual cross-fertilization. Alternatively, taking account of the position of fellow national courts in accepting the obligations of a common treaty may simply be an instance of taking advantage of a quick source of information about the degree of reciprocal acceptance of these obligations, without any overlay of special “judicial” communication. (Slaughter 1994: 101) Indeed. And yet INA makes much of the centrality of transjudicial communication. A frequently invoked example in Slaughter’s analysis is that of Germany’s Bundesverfassungsgericht, or Constitutional Court, which, she says, has engaged in “collective deliberation” with the aforementioned European Court of Justice (ECJ). In Brunner v. The European Union Treaty in 1993, the German Constitutional Court expressed some reservations concerning the reach of the EU’s evolving constitutional law and thus proposed a relationship of cooperation with the ECJ in which the latter would, effectively, safeguard Germany’s constitutional guarantees. Slaughter (1994: 111) admired the “mode of proposal” and believed to have found “a highly developed form of vertical communication”. Does this example constitute evidence of the existence of a judicial network – or of a judicial hierarchy? When contemplating the answer, it is important to appreciate that it may well be “the existence of international instruments that intentionally structure specific kinds of transjudicial communication. The best example is Article 177 of the Treaty of Rome” (Slaughter 1994: 130). If this is indeed the case, the transjudicial communication between, say Germany’s Bundesverfassungsgericht and the ECJ could not be said to be the consequence of an (informal) information network, but would have to be attributed chiefly to the existence of a (formal) information hierarchy. This does not negate the existence of transjudicial communication – merely the source thereof. In support of her argument about the character and contribution(s) of judicial networks, Slaughter (2004: 65) points, among other things, to the visits of the US Supreme Court to the House of Lords and the Global Judges Symposium convened by the United Nations Conference on Sustainable Development in conjunction with other partners. She maintains that “judges around the world are talking to one another: exchanging opinions, meeting face to face in seminars and judicial organizations, and even negotiating with one another over the outcome of specific cases.” This, says Slaughter (2005), is evidence of the contribution of judicial networks to international governance, notably to the creation of “a brave new judicial world” by way of an information network. Is this really so? The question arises: what are the measurable consequences of international conferencing? Is the insight that judges talk to their international counterparts really new? While the global judicial dialogue, according to Slaughter (2005: 288), is not new, “many participating judges and a number of observers think today’s constitutional cross-fertilization is new in important ways. They point to a number of distinctive features: the identity of the participants, the interactive dimension of the process, the motives for transnational borrowings, and the self-conscious construction of a

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global judicial community.” Unfortunately, the impressions of a random and unrepresentative sample of judges alone are insufficient to substantiate the hypothesis of judicial cross-fertilization – and the uniqueness of this purported fact. We are told that to the extent that information networks of national constitutional courts “stimulate actual convergence of positions through the emergence of a global jurisprudence in any one area – through cross-fertilization of national constitutional and/or the decisions of international human rights tribunals – they shade into harmonization networks …” (Slaughter 2004: 100). Aside from the unsubstantiated veracity of this contention, two definitional questions arise. First, what is the meaning of “cross-fertilization”, a key term in INA? Second, what is the meaning of “global jurisprudence”? Both questions further elaborate the missing mechanisms critique from above. For a clear definition of cross-fertilization, one must turn to Slaughter’s early, and generally more nuanced, writings on networks in international law. In one of these publications, she conceives of cross-fertilization thus: “It is the simple dissemination of ideas from one national legal system to one another, from one regional legal system to another, or from the international legal system to national legal systems” (Slaughter 1994: 117). After suggesting that a legal system’s reception of foreign bodies of law constitutes an example of the effects of crossfertilization, Slaughter introduces imagery that, while not persuasive, helpfully elucidates her understanding of cross-fertilization: As the metaphor of cross-fertilization suggests, the court that is the source of the legal rules or principles in question casts them into the transnational winds without any particular knowledge of, or concern for, where they will land. Switching metaphors, to the extent that the disseminating court can be understood as conducting a monologue …, it is up to the listeners to determine which parts of the monologue they choose to take away, build upon, and communicate to someone else. Neither the speaking nor the listening court is bound by a treaty structure or any other direct or formal links. [However, …] informal links and common constraints nevertheless bind courts participating in this form of communication into a loose community. (Slaughter 1994: 118) The dissemination component of the definition of cross-fertilization, in the way Slaughter uses it, is also indicative of the existence of a judicial network. Yet, if all that is required for the existence of such a network is that n-number of courts be the source of legal rules or principles and that these are cast into the transnational winds without any particular knowledge of, or concern for, where they will land, it is not immediately apparent what we gain by speaking of this in terms of a judicial network. If the set of objects (courts) and the set of relations among them are this tenuous, it is doubtful that such a state of affairs could be said to represent a discernable structure in the international system at all. Let me turn to the meaning of global jurisprudence. At one point Slaughter (2004: 66) describes a global jurisprudence as one “in which courts are referring

Judicial networks 89 to each other’s decisions on issues ranging from free speech to privacy rights to the death penalty.” In this “dialogue among the world’s judges”, which is said to have led to an “increasingly international consensus on various issues”, Slaughter (2004: 79, 78, 243) believes, “[j]udges would no longer be divided along ‘international’ and ‘domestic’ lines. They would all be participants simultaneously in national legal systems and the construction of a global legal system.” Although the term floats freely and constantly through the network analyses of international lawyers, it is not at all clear what the notion of “global jurisprudence” truly means, and whether we will know this jurisprudence when we see it. At present, the term (like INA more generally) appears to be devoid of concrete meaning. If “global jurisprudence” is taken to mean an integrated and coherent body of international case law (what we might call le loi general, or global jurisprudence in the associative sense), the attainment of it would be decidedly difficult. If, on the other hand, it refers to no more than the sum of municipal and international jurisprudence at any given point in time (what we might call le loi de tous, or global jurisprudence in the aggregative sense), the notion is so vague as to be meaningless, both theoretically and analytically.

Enforcement networks In enforcement networks, if we follow INA, “talk leads to action – direct aid in enforcing specific regulations against specific subjects” (Slaughter 2004: 51; Waters 2005). Prominent examples invoked by Slaughter are the International Criminal Police Organization (Interpol) and the Trevi Group, a now defunct conglomerate of twelve member states of the European Union coordinating counterterrorism measures and policing. As interesting as Interpol’s gestation and transnational activities are (its intellectual beginnings date back to the First International Criminal Police Congress held in Monaco in 1914), its institutional structure is, at least since the early 1970s, more akin to a hierarchy than a network. With its Lyon headquarters, six regional offices, and 186 so-called National Central Bureaus, Interpol is formally an international organization (the second largest after the UN) with all that that entails. It was recognized as such in the 1972 Headquarters Agreement with France. Among other things, it dispatches (since 2004) a Special Representative to the UN. This is not to suggest that INA could not be applied to the case of Interpol. It merely suggests, in accordance with earlier criticism, that such an application must, if it is to have any intellectual purchase, specify nodes, partitions, and relations within this supposed network. Only then would the relationship between formal and informal transactions become visible. Turning to Trevi, on Slaughter’s account (2004: 56), this structure constituted the EU’s “criminal enforcement network”. Interestingly, Trevi would have been a useful example for elucidating the processes and mechanisms of international networking, for when Trevi emerged in 1975, it was not constituted by treaty, but evolving out of an extant and informal network of police authorities from countries that had been forced to confront terrorism, notably the United Kingdom (where the Irish Republican Army was active), Germany (which faced the Red Army

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Faction), and Italy (which had spawned the Red Brigades). Trevi could easily be modeled as an international network. At one point, a transnational working group on terrorism was established under its auspices, which facilitated, from the late 1970s until Trevi’s dissolution in 1995, the exchange of operational information concerning terrorist activity. Unfortunately, Slaughter remains content with anecdote and foregoes an analysis of this most interesting quasi-judicial network (which probably operated more like an information network in any event). Other examples of harmonization networks are said to include “training and technical-assistance programs of developed-country regulators for their counterparts in developing countries in order to build the recipients’ capacity to enforce their own domestic regulations” (Slaughter 2004: 51–52). The question arises how these “training and technical-assistance programs” differ from similar programs implemented under the auspices of hierarchies (not networks) such as the World Bank and the US Agency for International Development. Alas, we do not possess empirical evidence concerning the relative contribution of markets, hierarchies, and networks to the enforcement of international law. Considering the relationship between judicial information and enforcement networks, Posner points out that: It may be that judges influence each other through their interactions, and as a result, to the extent that they have the freedom to do so, they may produce similar rules across legal systems. But none of this is evidence that courts force their own governments to comply with international law. Nor is it clear that this interaction among judges results in meaningful cooperation between states. (Posner 2005: 808) This skepticism has been echoed by other scholars, who maintain that “[a] shared acceptance of procedural rules” – for example, a concept of checks and balances, a principle of positive conflict, a principle of interpretive pluralism, and an appreciation of the value of persuasion (Slaughter 2003: 217), which these scholars take to be at the heart of Slaughter’s argument about judicial comity – “is no substitute for a set of shared values. Slaughter correctly identifies an increasing sense of awareness in the international judiciary that their actions are part of a global community of law dealing with related problems. However, an implicit, unwritten, unacknowledged ‘consensus’ on procedural norms makes a flimsy foundation for a transnational community … Slaughter’s new legal order may be no more than a restructured form of international contestation, whose participants obey conventional rules governing their conflict. Just as the fact that there are laws of war does not mean that there is peace, an agreement between liberal judges as to the manner and form of their contests does not constitute international law” (Mills and Stephens 2005: 20–21). So much for enforcement networks. Let us consider whether harmonization networks have more to contribute to an international rule of law.

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Harmonization networks Harmonization networks are said “to facilitate trade, provide the infrastructure for complicated technical negotiations aimed at harmonizing one nation’s laws and regulations with another’s. Harmonizing distinctive national laws can have significant policy implications, which makes harmonization networks suspect for those concerned about democratic input into the regulatory process” (Slaughter 2004: 52). The examples cited by INA scholars range from mutual-recognition agreements, or MRAs (for example, between regulatory agencies in two countries or more), to the US Department of Justice’s proposal for a “Global Competition Network” to foster international convergence, both procedural and substantive, in the enforcement of anti-trust regulations (Slaughter 2004: 59–61). Raustiala (2002: 68), in the context of harmonization, has claimed that “the existence of a network strengthens incentives for jurisdictions to seek convergence because convergence allows for deeper and broader cooperation.” The latter statement, like many within INA, is saturated with unproven assumptions about causality. Consider, for example, the case of the supposed and previously discussed information network of constitutional court judges. This anecdotal example already casts doubt on the accuracy of Raustiala’s assertion. For if we accept, for argument’s sake, that a “supreme” judicial network exists in the international system, the evidence furnished by INA scholars is insufficient to bear out this claim. In fact, even internationally-minded networking judges like US Supreme Court Justice Stephen Breyer, a favorite in the INA literature, would most certainly recoil at the proposition of constitutional convergence across jurisdictions. Indeed, given audience costs and the stickiness of constitutional values (whether in the United States, Germany, South Africa, or most other frequently cited jurisdictions), I would submit that broader cooperation would be hindered, not helped, by judicial convergence, this extreme form of harmonization. This raises questions about the costs of harmonization on an entirely different level – the costs of integrating select features of the contending legal traditions of the world. I am thinking here of the jurisdictional, substantive, and procedural differences that have separated judges, municipal and otherwise, in the past, and which continue to do so in the present. In the case of private international law adjudication, for example, a substantial literature has appeared demonstrating that legal practitioners are bereft of predictable techniques when laws conflict, even within jurisdictions (Stone Sweet 2006: 632). Given this, how confident can we be that the attainment of a global jurisprudence – which would necessitate techniques in the conflict of laws across jurisdictions – is nigh? The problem has also played out, in particular, in the case of international criminal law. To this day, the harmonization of international criminal procedure remains a work in progress. With the rise of the international adjudication of international crimes in the early 1990s, the imperative to relate to one another in the practice of international courts and tribunals, even to synthesize, the adversarial model of criminal procedure of the common law tradition and the inquisitorial model of criminal procedure of the civil tradition was responsible for high transactions costs in international court and tribunals (Mundis 2001).

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Inasmuch as a procedural synthesis was attempted in the treaty negotiations over the form and function of the International Criminal Court (ICC) at the 1998 Rome Conference, harmonization is not complete: In both the Statute and the Draft Rules the State Parties have succeeded in treating the common-law and the civil-law tradition on a more equal footing than in its historical predecessors. But at the same time the difficulties emerge. The integration of elements of both systems in a new well-balanced system calls for a search for a new coherence, an intrinsic balance between all the elements of the system in its various procedural stages. It took most national systems, embedded in one of the major legal systems, many centuries to find such a coherence and intrinsic balance, without being perfect yet. (Orie 2002: 1494–5) Put differently, although a considerable degree of harmonization has been brought about in international criminal law, arguably by a network of practicing lawyers – including, most notably, the Associate Legal Officers, Legal Officers, and Senior Legal Officers in the Chambers, Registries, and Offices of the Prosecutor as well as the judges, trial and defense attorneys of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – it would be premature to exclaim the decline of municipal legal systems and municipal jurisprudence. As one observer argues, … synthesis at the international level is a matter of convenience, or at least compliance rather than any recognition or commitment to a new compatibility [between adversarial and inquisitorial systems of criminal procedure]. The political imperatives fuelling the international tribunals (and the moves towards an [I]nternational [C]riminal [C]ourt) are not tolerant of disparate procedural niceties standing in the way of trial outcomes. Therefore, what now seems to be a triumph for synthesis may be more reliant on the political moment of internationalisation rather than on any real and significant developments towards a new, fused procedural tradition. Perhaps the test for whether this will occur as a result of internationalization is the evidence of synthesis within the originating procedural styles as they develop and continue to operate in their home jurisdiction. (Findlay 2001: 52–3, emphases added) This brings us to the methodological problem of spuriousness. In order to determine the precise contribution of a network of practicing lawyers serving the ad hoc tribunals to the harmonization of adversarial and inquisitorial approaches in international criminal proceedings, it is imperative to distinguish the relative weight of this causal variable (i.e. norms emanating from network transactions) from the relative weight of other causal variables (e.g. interests emanating from hierarchical transactions). This example has never been taken up by INA, so why is it relevant to mention it here? It is worth mentioning because it exemplifies the roadblocks on the path to a “brave new judicial world”. Considering the arduous

Judicial networks 93 (and continuing) movement toward an international criminal procedure within a branch of international law (see Safferling 2001, and recall, in this context, also the negotiations, spanning decades, over what has become the ICC), how plausible is a movement toward convergence – in substantive, procedural, and jurisprudential terms – across municipal jurisdictions? If we have reasonable doubts, how accurate (in a positive sense) and realistic (in a normative sense) is it to speak of an emerging “global legal system” (Slaughter 2004: 91)? Inasmuch as a “transnational litigation space” (Slaughter 2004: 94) has opened up, it remains to be seen whether it is here that the “new global order” will be built.

Conclusion The introduction of SNA into international law was designed to reveal the enabling – and constraining – dimensions of patterned relationships among judicial actors within the international system. INA’s “anticategorical imperative” (Emirbayer and Goodwin 1994: 1414) – its resistance to explaining international outcomes exclusively in terms of the categorical attributes of international actors – deserves recognition. However, it also demands improved applications. It is undeniable that judges, mostly those at the helm of countries’ judiciaries, are conferencing across borders. Yet considering that the judges of supreme and constitutional courts represent but a fraction of any country’s judiciary, building a theory of international law based on evidence of their transnational interactions alone (which, as we have seen, has been unsystematically compiled), risks exaggerating the role of judicial networks in international law in general – and their contribution to international governance in particular. The theoretical and analytic contribution of network analysis to explaining the procedures and outcomes of international law has been meager. Exiting scholarship has not utilized the potential of the social network tradition, from Gestalt theory to Milgram (1967) to Granovetter (1973). The heuristic use of network analysis, as practiced by Slaughter and other international lawyers, has netted no systematic data concerning the role of judicial networks in the international system. The existing literature has favored argumentation over analysis. While valuable in principle as an approach to theory development in the early stages of an emerging research program, the insufficient grounding in practice of INA in the sophisticated social network tradition makes its inattention to conceptualization and measurement highly problematic. As one scholar writes: … investigations that employ network imagery metaphorically but not analytically – say, by referring to an emerging intellectual community as a “network” without analyzing it as one – have had a harder time yielding insights that distinguish them from nonnetwork studies. They may add to the prestige of network research by providing advertising (although I find it more probable that casual use of this kind will have the contrary effect), but they will not add to knowledge in the same way. (Gould 2003: 242)

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Against this background, international legal scholarship would be well served if it returned to viewing network analysis as what it is – a collection of methodological techniques – rather than promoting it as a paradigm for the theory, and practice, of international law.

7

The justice as diplomat: the foreign policy frameworks behind the US Supreme Court’s new globalism Ken I. Kersch What could be more exciting for an academic practitioner, or judge, than the “global” legal enterprise that is now upon us? Wordsworth’s words, written about the French Revolution, will, I hope, still right true: “Bliss was it in that dawn to be alive/But to be young was very heaven.” United States Supreme Court Justice Stephen Breyer (Breyer 2000; Breyer 2003)

It is a commonplace among historians of the United States Supreme Court that, when it is considered over the long term, constitutional doctrine has been shaped in important ways by non-doctrinal currents of political and social thought. The Marshall Court, for instance, was suffused with the nationalist vision that characterized the Chief Justice’s Federalist Party, of which he was a leading light. During his tenure, Marshall’s successor, Roger Taney, struck key Jacksonian themes. In both cases, the outside influences on doctrinal development within the Court reflected the political and constitutional visions of the predominating political parties. But this need not be a matter of partisanship pure and simple. Perhaps the most famous instance of social thought suffusing the jurisprudence of the Court took place in the late nineteenth (and early twentieth) century, when the Court repeatedly sounded Darwinian themes, prompting Justice Holmes’s famous protest that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Lochner v. New York, 198 U.S. 45, 75 (1905) (J. Holmes, dissenting). However, since the “Constitutional Revolution” of 1937, there has been relatively little discussion of the ideological visions that have informed the Court’s jurisprudence. This is particularly the case when those visions were broadly consonant with the imperatives of the New Deal/Great Society regime itself, and its attendant notions of progress. While there have been a few scattered exceptions, the discussions of ideology that have given rise to career-making research agendas in the contemporary legal academy have focused on capitalism, racism, sexism, and heteronormativity – they have emerged, that is, from the liberal-left. For liberal legalists, the 1937 transition is understood as the breakthrough that removed the barriers of ideology from constitutional jurisprudence. What came after 1937 was a pragmatic, “living constitutionalism”, or a constitutionalism that took into account what, as a practical matter, was necessary, given changing times and circumstances.

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It was, in other words, a constitutionalism freed of the ideological fetters of a bygone political era. In many respects, this state of affairs has been a hold-over of the old New Deal liberal regime: liberals and leftists do not have ideologies – they see through them. For this reason, legal scholars, most of whom see the world as partisans of the New Deal/Great Society political regime, as a group are relatively slow to identify the currents of social and political thought – viewed as social and political thought rather than simply contributions to a scholarly literature – that are most likely to have profound effects on the future development of constitutional doctrine. Amongst these is the recent “globalist” turn by the Supreme Court in deciding domestic constitutional cases. To date, legal academics, whether criticizing or defending it, have treated this trend primarily as a question of interpretive theory (see Alford 2005). “Originalists”, like Justice Scalia, oppose it because to look abroad in the way that has been done in recent Supreme Court decisions is to look to sources of law (whether binding or not) that are not relevant to ascertaining the original meaning of the constitutional text. On the other hand, most defenders of the practice tend to follow Justice Stephen Breyer (in particular) by focusing on its “pragmatic” value – justices look abroad because, in doing so, they see how judges in other countries have gone about solving similar constitutional “problems” (Breyer 2003). While a large and growing number of scholars have begun to address questions of international influences on the United States Supreme Court, including its burgeoning enthusiasm for citing foreign practices and precedents in reaching decisions involving traditionally domestic areas of constitutional law (such as federalism, gay rights, affirmative action, and the death penalty – as opposed to international trade and admiralty cases), I will argue here that the focus on recent trends in this area as an issue of interpretive theory, a focus natural to most law professors, has obscured a whole range of “diplomatic” justifications for the practice that are discussed openly, and indeed, garrulously, by the Court’s justices themselves. In this chapter, I will take the justices at their word as to why they are moving in this direction. Once one does so, it becomes apparent that the new trend is, in part, motivated and framed by broader understandings of foreign policy which are playing an increasingly prominent role in the broader, non-legal currents of American social and political thought. Over the course of the next half-century, it is quite possible that these foreign policy visions, rooted in theories of international relations in an age of globalization, will come to have effects on the development of American constitutional doctrine that are similar in scope and influence to the effects that the social Darwinist vision had on that doctrine in the late nineteenth and early twentieth centuries. My goal here is not to “prove” any sort of connection between these recent tendencies of the Supreme Court and the foreign policy visions I set out here (such as by finding articles on foreign policy cited in judicial opinion, or clipped and kept in justices’ private papers, or, at one remove, in amicus briefs submitted to the justices). It is rather to imagine the ways in which these ideas, if influential, might affect the way a judge understands his or her judicial role. The influence of

The justice as diplomat 97 these ideas will be evident in patterns of thought and behavior, and, as such, are suggestive. It is not at all necessary that judges influenced by these frameworks either cite them explicitly in their decisions or, ultimately, within their private papers. Indeed it is not even necessary that they have read them, in the form of books or academic articles or otherwise. The more significant ideas are in social thought, the more they are simply “in the air” and are picked up, often unconsciously, in ways that frame a broad range of discussions. As such, these ideas may be adverted to in simplified or popular form, and they may become influential as they are transformed into a set of instincts or prejudices. A word on interest is perhaps in order here. Approaching this issue as a matter of ideas inevitably subjects one (at least within contemporary political science) to the charge that the ideas are really epiphenomenal. What really matters, the bedrock explanation, is really interest. Some may counter the suggestions I offer here with the assertion that, in citing foreign practices and precedent, judges are not following any broader theory, vision, or understanding of international relations, but rather pursuing their own interests, whether that involves maximizing their institutional power (as judges on courts within the broader framework of domestic government vis-à-vis the domestic legislature, the bureaucracy, and the executive), either as a general matter or with the aim of advancing their own pre-existing policy preferences on particular issues (by looking around the world and “picking out their friends” in cases involving, for example, the death penalty, gay rights, or affirmative action). In these ways, the increasing number of allusions to foreign practices, precedents, and opinions in domestic constitutional cases is neither evidence of a new form of judicial motivation, nor of any real significance in altering legal outcomes. While I am sympathetic to this line of argument in many respects, I do not think this by any means should lead us to the conclusion that ideas (and, especially, the ideas I take up here) are not worth examining. For complicated reasons that others have discussed at length (and, accordingly, I will not trouble to take up here), it seems obvious to me that ideas and interests work hand in hand. Ideas that have no connection to interest, of course, are not likely to be very influential ideas. As I see it, ideas justify interest, and ideas construct interest. Interests, in turn, also spur the construction of ideas. My goal is not to argue that ideas predominate over interests. It is simply to identify the nature and range of ideas that I believe to be currently interacting with the dynamics of institutional and individual interest. I should also say that the descriptions I provide of the various approaches to international relations here are rudimentary – and even stock – sketches. I am by no means an expert in this area. And I draw those descriptions from a few short, schematic overviews provided for general readers by a few highly respected international relations theorists. For my limited purposes here, these rudimentary descriptions will do. My objectives in this brief chapter are modest. I will first set out for constitutional law scholars concerned with this issue the three main paradigms that inform the way most contemporary scholars understand international relations: realism, liberalism, and constructivism/idealism. I will venture some observations about how the way

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contemporary Supreme Court justices talk about their decision to make greater efforts to look abroad in deciding domestic constitutional cases seems to reflect “diplomatic” considerations that are parallel to those offered in these paradigms. (It is important to note that the relationship between the broader paradigms and the behavior of the justices in this regard is much more apparent in their off-thebench speeches and casual comments than in the actual opinions themselves). Then I will follow the description of each international relations paradigm with a brief illustrative taxonomy of statements by the justices that demonstrates the diverse justification they have offered for their globalist turn.

International relations paradigms Realism Realists are international relations traditionalists. They believe in the primacy of sovereignty and the centrality of nation states in the international sphere. Moreover, they look at these states as, at the most basic level, power-seeking and interestpursuing entities (Mearsheimer 2001: 17–18). “At realism’s core is the belief that international affairs is a struggle for power among self-interested states.” This perspective is a Hobbesian vision. As such, it sees contention, conflict, and struggle as central to the international order. It also sees all three as perpetual – and inevitable (Snyder 2004: 52–56). Traditional foreign policy realism has little or no place in its outlook for values and normative considerations. Most realists treat states as essentially interchangeable, power-seeking entities, all of which play by the same set of rules – rules that apply to states qua states. So far as their behavior in the international arena is concerned, international relations realists do not draw any significant distinctions between democratic and non-democratic states (Mearsheimer 2001; Morgenthau 1967; Kissinger 1994; Waltz 1959; Waltz 1979). This does not mean that all thinkers who begin within the realist framework find values to be irrelevant. Foreign policy realism in certain incarnations (that is, in its less pure forms) can have a prescriptive, normative dimension. For realists, it is perfectly legitimate for states to pursue the interests of their citizens, and sometimes contentiously, in the international arena. It is “legitimate”, though, not because it is morally right as a matter of the application, a priori, of some moral theory of proper behavior, but because that is all states can do and will do, either because that behavior is inherent in the nature of a state, of because the international system is structured so as to require that they behave that way. We might even say that not only do states behave this way, they should behave this way. Working to advance the self-interest of the people of a sovereign state is part of the normal duties of governments, in addition to being part of their ordinary practice. This duty is, of course, all the more justifiable (albeit on non-realist grounds) if it involves democratic states. Foreign policy realists are believers in realpolitik. They tend to be skeptical about the ability of international law and international institutions to constrain

The justice as diplomat 99 states seeking to advance their own interest. They tend to view both as instruments of powerful and power-seeking states. Those states will leverage international law and international institutions as much as possible to yield the maximum benefits for themselves while, at the same time, manipulating them to constrain challenges to their interests from rival states in the international arena. In this Hobbesian vision, international relations realists tend to view “hard” power – power exercised most importantly by direct or implied military or economic coercion – as, by and large, the real power in international politics (Waltz 1959: 216; Morgenthau 1967: 26–29; Nye 2004: 5). Courts and judges, who have neither “the sword nor the purse … but merely judgment,” are not likely to loom large as important actors in a realist foreign policy vision that places its greatest emphasis on hard power rather than on law (Rossiter 1961: 433). Realists are likely to consider arguments about judicial globalization as something of a sideshow. This is especially the case where so-called “values” issues are at stake. Realists will tend to see those issues as implicating rhetoric more than reality. Judges may tend towards jawboning on these matters. In the end, however, that jawboning is likely to be of little concrete effect, at least so far as international relations are concerned. Foreign policy realists might favor judicial globalization – but only where the lines between some versions of it and liberalism become porous. If one holds to the view that, in the post-War era, an array of “constitutional” international institutions like the International Monetary Fund, Bretton Woods, and the World Bank were created and that these serve to advance the interests of the era’s hegemonic state – the United States – one could conclude that a globalized American judiciary is one way of augmenting American influence throughout the world, and hence American power. From this perspective, a preoccupation by opponents of the citation by American judges of foreign practices and precedents emerging from within the hegemonic state can seem rather narrow-minded, and, indeed, inverted. The cost of these sometimes glancing references in Supreme Court opinions (which few take to be matters of binding law) is relatively minimal (see Lawrence v. Texas, 539 U.S. 558, 573 (2003); Knight v. Florida, 528 U.S. 990 (1990)). At the same time, the benefits of having American judges working with their counterparts overseas more routinely are clear: such interactions will work to expand American influence outwards. Put otherwise, realists will see American judges operating globally as agents of American power. To be sure, a realist – who looks at the world through the prism of force – would likely be skeptical about the ability of American judges to persuade judges in other states to adopt policies that advance the American interest as against the interest of their own countries. Judges, after all, wield “soft” rather than “hard” power, i.e. they work by providing information, prestige, and persuasion (Nye 2004: 6, 31). That said, while realists might not place any great faith in an increasingly globalized judiciary, they might not view it as any great danger, either. Of course, realists might just as easily view things from precisely the opposite perspective. Realists are the chief proponents of the traditional “balance of power” theory in international relations. As described by Jack Snyder, “[s]tandard realist

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doctrine predicts that weaker states will ally to protect themselves from stronger ones and thereby form and reform a balance of power” (Snyder 2004: 56). As such, realists could just as likely see efforts to appeal to international law, international institutions, and emerging global standards as means used by weaker and rival powers (such as the European Union) to constrain the United States (Kagan 2003: 4–5). However, the manifestations of such dynamics – and they are particularly relevant in the courts – would not fit readily into standard definitions of realism. Snyder writes: The United States strained relations with Europe offer ambiguous evidence [for the descriptive and predictive value of foreign policy realism]: French and German opposition to recent U.S. policies could be seen as classic balancing, but they do not resist U.S. dominance militarily. Instead, these states have tried to undermine U.S. moral legitimacy and constrain the superpower in a web of multilateral institutions and treaty regimes – not what standard realist theory predicts. (Snyder 2004: 56) In the end, it is hard to imagine realists believing that American judges (who are, after all, state actors) would ultimately act in the interest of outside states seeking to challenge and constrain the pursuit of American interests, at least in the long term. Federal judges may be relatively independent so far as government actors go, but if they appear to be acting against American interests in the service of foreign power, pressure will nevertheless be brought to bear on them. The recent enthusiasm by the Supreme Court for citing foreign practices and precedent has sparked both public criticism and, more concretely, suggestions that, were these trends to continue and develop, impeachment might be an option. As this behavior becomes more prominent, political parties will take a position on it in increasingly public ways. If judges come to be perceived as siding with foreign powers (like the Europeans) in balance of power situations, appointees for the Court will be vetted for their views on the matter and questioned about it in their confirmation hearings before the US Senate – just as Chief Justice John Roberts and Associate Justice Samuel Alito were vetted during their confirmation hearings. One of the conceptual problems here, of course, is determining when a globalized American judge is acting against United States interests by alluding to foreign practices and precedents in domestic constitutional decisions. There is a certain circularity in arriving at the determination. If one starts from the realist presumption that state actors (including judges) will, ultimately, and on balance, act in the state’s interest in the international sphere, then whatever a judge does will be viewed, by definition, as in the state’s interest. If an American judge like Antonin Scalia rejects global standards, or even global references, for example, in holding the death penalty for juveniles (Roper v. Simmons, 543 U.S. 551, 608, 624–28 (2005) (J. Scalia, dissenting) or for the mentally retarded to be constitutional (Atkins v. Virginia, 536 U.S. 304 (2002)(J. Scalia, dissenting), or holding laws restricting hate speech unconstitutional (R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), he can be

The justice as diplomat 101 presumed to be defending the prerogative of American sovereignty, power, and interest. If that same judge consults foreign practices and precedents, but ultimately rejects their applicability to the case before him (what Anne-Marie Slaughter has called “informed divergence”), he can also be seen to be acting in America’s interest (Slaughter 2004: 171–172). And if the judge follows the foreign practice or precedent, and in the process pleases transnational activists, the officials of international institutions, and diplomats and judges in foreign capitals, he can also be seen as advancing American interests (Slaughter 2004: 5). This is particularly the case for that subset of realists who believe that power can be pressed too far, that part of the strategy behind staying on top as a state involves the judicious forswearing of power, in cases in which that helps to maintain one’s dominance (Mearsheimer 2001; Posen 2002: 119). Foreign policy liberals and foreign policy constructivist/idealists (to be discussed next) have a place in their views for courts and judges, and consider their role in the emerging international order as a significant one. Foreign policy realists do not. Moreover, even to the degree that (what might be a non-traditional) realist vision did take courts and judges and international law and institutions more seriously, it is not clear whether realism would favor judicial globalization or oppose it. Given its general skepticism about those institutions, its defense of sovereignty, and its emphasis on hard power, realists are more likely than not to oppose that globalization. But, for the most part, the bottom line for international relations realists is that courts and judges are likely to be beside the point. The Supreme Court’s recent doodlings and gestures in this area are of no real significance – at least so far as the things international relations realists care most about are concerned. They are by no means beside the point, however, for international relations liberals. Liberalism Liberal theories of international relations hold that international peace and prosperity are advanced to the degree that the world’s sovereign states converge on the model of government anchored in the twin commitment to democracy and the rule of law (Doyle 1983: 213). Liberal “democratic peace” theorists hold that liberal democratic states anchored in rule of law commitments are less aggressive and more transparent than other types of states (Doyle 1983). When compared with non-liberal states, they are thus much better at cooperating with one another in the international arena (Doyle 1983: 217). Moreover, because they share a marketoriented economic model, international relations liberals believe that liberal states hewing to the rule of law will become increasingly interdependent economically (Snyder 2004: 56). As they do so, they will come to share a common set of interests and ideas, which also enhances the likelihood of cooperation (Snyder 2004: 56). Many foreign policy liberals – sometimes referred to as “liberal internationalists” – emphasize the role that effective multilateral institutions, designed by a club or community of liberal-democratic states, play in facilitating that cooperation and in anchoring a peaceful and prosperous liberal world order (Snyder 2004: 56–57). The liberal foreign policy outlook is moralized, evolutionary, and progressive.

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Unlike realists, who make no real distinctions between democratic and nondemocratic states in their analysis of international affairs, liberals take a clear normative position in favor of democracy and the rule of law. Liberals envisage the spread of liberal democracy around the world, and they seek to advance the world down that path (Snyder 2004: 59). Part of advancing the cause of liberal peace and prosperity involves encouraging the spread of liberal democratic institutions within nations where they are currently absent or weak (Ikenberry 2001: 36). Furthermore, although not all liberals are institutionalists, most liberals believe that effective multilateral institutions play an important role in encouraging those developments (Snyder 2004: 58–59). To be sure, problems of inequities in power between stronger and weaker states will exist, inevitably, within a liberal framework. “But international institutions can nonetheless help coordinate outcomes that are in the long-term mutual interest of both the hegemon and the weaker states” (Snyder 2004: 58–59). Many foreign policy liberals have emphasized the importance of the judiciary in helping to bring about an increasingly liberal world order. To be sure, the importance of an independent judiciary to the establishment of the rule of law within sovereign states has long been at the core of liberal theory. Foreign policy liberalism, however, commonly emphasizes the role that judicial globalization can play in promoting democratic rule of law values throughout the world (Slaughter 2004: 102). Post-communist and post-colonial developing states commonly have weak commitments to and little experience with liberal democracy and with living according to the rule of law, as enforced by a (relatively) apolitical, independent judiciary. In these emerging liberal democracies, judges are often subjected to intense political pressures. International and transnational support can be a lifeline for these judges. It can encourage their professionalization, enhance their prestige and reputations, and draw unfavorable attention to efforts to challenge their independence (Slaughter 2004: 99). In some cases, support from foreign and international sources may represent the most important hope that these judges can maintain any sort of institutional power – a power essential to the establishment within the developing sovereign state of a liberal democratic regime, the establishment of which liberal theorists assume to be in the best interests of both that state and the wider world community. Looked at from this liberal international relations perspective, judicial globalization seems an unalloyed good. To many, it will appear to be an imperative. When judges from well-established, advanced western democracies enter into conversations with their counterparts in emerging liberal democracies, they help enhance the status and prestige of judges from these countries. This is not, from the perspective of either side, an affront to the sovereignty of the developing nation, or to the independence of its judiciary. It is a win-win situation which actually strengthens the authority of the judiciary in the developing state. In doing so, it works to strengthen the authority of the liberal constitutional state itself. Viewed in this way, judicial globalization is a way of strengthening national sovereignty, not limiting it: it is part of a state-building initiative in a broader, liberal international order (Slaughter 2004: 99, 101–102).

The justice as diplomat 103 A liberal foreign policy outlook will look favorably on travel by domestic judges to conferences abroad (and here in the United States) where judges from around the world can meet and talk (see Slaughter 2004: 96). It will not view these conferences as “junkets” or pointless “hobnobbing.” These meetings may very well encourage judges from around the world to increasingly cite foreign precedent in arriving at their decisions. Judges in emerging democracies will use these foreign precedents to help shore up their domestic status and independence. They will also avail themselves of these precedents to lend authority to basic, liberal rule-of-law values for which, given their relative youth, there is little useful history to appeal to within their own domestic constitutional systems. Judges in established democracies, on the other hand, can do their part to enhance the status and authority of independent judiciaries in these emerging liberal democratic states by showing, in their own rulings, that they read and respect the rulings of these fledgling foreign judges and their courts, even if they do not follow those rulings as binding precedent (Slaughter 2004: 99, 101). They can do so by according these judges and courts some form of co-equal status in transnational “court to court” conversations (Slaughter 1998: 708). It is worth noting that mainstream liberal international relations scholars are increasingly referring to the liberal democratic international order (both as it is moving today and, indeed, as read backward to the post-War order embodied in the international institutions and arrangements of NATO, the World Bank, and others) as a “constitutional order”, and, in some cases, as a “world constitution” (Ikenberry 2001: 29, 36–37; Slaughter 2004: 95; Ackerman 1997; Cleveland 2005). No less a figure than Justice Breyer – in a classic articulation of a liberal foreign policy vision – has suggested that one of the primary questions for American judges in the future will involve precisely the question of how to integrate the domestic constitutional order with the emerging international one (Kersch 2004b: 13, 18). If American judges look at judicial globalization from within a liberal foreign policy framework (whether or not they have read any actual academic articles on liberal theories of foreign policy), criticisms of “foreign influences” on these judges, and of their “globe trotting” will fall on deaf ears. They will be heard as empty ranting by those who don’t really understand the role of the judge in the post-1989 world. These judges will not understand themselves to be undermining American domestic sovereignty by alluding to foreign practices and precedents. And they will not understand themselves (in other than a relatively small-time and benign way) as undermining the sovereignty of other nations. They will see the pay-off-to-benefit ratio of simply talking to other judges across borders, and to citing and alluding to foreign preferences (when appropriate, and in nonbinding ways) as high. They will, moreover, see themselves as making a small and modest contribution to progress around the world, with progress defined in a way that is thoroughly consistent with the core commitments of American values and American constitutionalism. And they will be spurred on by a sense that the progress they are witnessing (and, they hope, participating in) will prove of epochal historical significance. Even if they are criticized for it in the short-term, these liberal internationalist judges will have a vision of the future which suggests that,

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ultimately, their actions will be vindicated by history. The liberal foreign policy outlook will thus fortify them against contemporary criticism. As both John Baker and Mark Tushnet have observed, as they fan out across the world and receive foreign visitors here at home, the justices may frequently understand themselves as diplomats, representing American values and explaining American practices to what is often an ignorant, misinformed, or hostile world. If judges understand their ventures in this light, of course they will understand the vehement attacks on them as being “infected” by their increasing interaction with foreign judges (and other foreign audiences) as seriously misguided. It will seem to them very clear that they are doing the country – and the broader liberal international order – an unambiguous service (Baker 2006; Tushnet 2006). Public statements by Justice Kennedy suggest that his inclination towards looking abroad in recent decisions is motivated less by a particular interpretive theory than by what are basically liberal foreign policy inclinations. A profile of Kennedy in The New Yorker magazine by Jeffrey Toobin – which was based in part on a series of conversations with the Justice – noted that “Kennedy’s first sustained encounter with foreign law came when he began to advise emerging democracies – including Czechoslovakia and Russia – on their constitutions and the rule of law.” Indeed, the Salzberg Seminar, at which Kennedy teaches comparative constitutionalism every summer, was founded in 1947, and was known colloquially as “the Marshall Plan of the Mind”. That is, it was aimed at setting up the sort of cultural and intellectual exchanges that would spread American liberal rule of law values throughout Western Europe in the aftermath of the Second World War and the dawn of the Cold War. Justice Kennedy has stated that a willingness by the Supreme Court justices to look abroad sends an implicit – and implicitly helpful – message to the rest of the world that we share their values. As such, Justice Kennedy clearly understands himself to be simultaneously both advancing American interests and the interest of a broader liberal international order: he seems most interested in dialogue with judges (and students) from other countries to serve those broader liberal purposes (Toobin 2005: 44–48). While Justice Kennedy’s liberal internationalism tends to focus on what has traditionally been called “comparative law” (i.e. reading the domestic legal opinions of judges in other countries involving the application of their own laws), Justice Ruth Bader Ginsburg’s foreign policy liberalism has placed more emphasis than the Supreme Court’s other “comparativists” on the crucial “international law” texts of the post-War liberal order. In a series of speeches and law review articles, Ginsburg has repeatedly averted to the fact that “[n]ational, multinational, and international human rights charters and courts today play a prominent part in our world.” To be sure, Ginsburg is also a comparativist in the sense that Kennedy is, having argued that “[t]he U.S. judicial system will be the poorer, I believe, if we do not share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.” But she seems more likely than either Kennedy or Breyer to specifically cite these international law texts (both those that the United States has ratified, and those it has not) and institutions in her opinions (Ginsburg 2005; Ginsburg and Merritt 1999: 281–282).

The justice as diplomat 105 Although in his debate with Antonin Scalia on the topic, Justice Stephen Breyer most prominently defended his willingness to look abroad as a natural outgrowth of an interpretive theory anchored in pragmatism (as opposed to Scalia’s textuallyoriented originalism), it is very clear from some of his statements there (and even more extensively in other settings) that his turn in that direction is also animated by a robustly liberal foreign policy vision. In his debate with Justice Scalia at American University’s Washington College of Law, Breyer, for instance, noted that: For years people all over the world have cited the Supreme Court, [so] Why don’t we cite them occasionally? They will then go to some of their Legislators and others and say, “See, the Supreme Court of the United States cites us.” That might give them a leg up, even if we just say it’s an interesting example. (Breyer and Scalia 2005) Breyer has stated in a speech at New York University’s School of Law that: The job before us – as nations increasingly emphasize the rule of law and the role of the judge – is to try to transfer knowledge from one nation to another, so that, despite cultural, historical, or institutional barriers, we can create fairer, more effective judicial systems, including safeguards of institutional integritywhere they are now lacking. (Breyer 2000) In one of the clearest articulations yet of what he sees as the Court’s role in consolidating a liberal world order, Justice Breyer stated on ABC’s This Week with George Stephanopoulos that: The world … is growing together, that through commerce and globalization, through the spread of democratic institutions, through immigration to America, it’s becoming more and more one world of many different kinds of people. And how they’re going to live together across the world will be the challenge. And whether our Constitution and how it fits into the governing documents of other nations I think will be a challenge for the next generation. (Breyer and O’Connor 2003) Thus, while they tend to emphasize different considerations, all of these justices are plainly advancing arguments that arise not only out of interpretive considerations involving the contending claims of pragmatism and originalism, but out of a prominent, liberal, foreign policy vision. Constructivism/idealism Constructivism, the most influential recent incarnation of what has traditionally been known as “idealism”, is distinguishable, but not necessarily wholly separate, from

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liberalism. It emphasizes the importance of a consensus around foundational ethical values as a foundation for any stable (and normatively desirable) international order (Snyder 2004: 60). Crucially, those values are, in significant part, reflected in law. Constructivists argue that the process of debating and deliberating about those values, with the aim of reaching consensus on them, should be a central concern of foreign affairs (see Finnemore 1996; Keck and Sikkink 1998; Klotz 1995; Wendt 1999; Finnemore and Sikkink 2001). Constructivists are not agnostic about the relationship between ideas and interests. Whereas more positivistic political scientists commonly look at ideas as justifications (or masks) for interest, constructivists look at it precisely the opposite way. They agree with non-constructivists that actors in the international arena, be they states or individuals, routinely engage in goal-directed, purposive action. But, for constructivists, ideas that are shared by many actors “intersubjectively” will construct both the interests and identities of those figures acting purposively in that arena. Constructivists see their approach as, in many respects, “deeper” than the liberal and realist approaches to international relations. Both liberalism and realism assume, to a significant extent, that preferences are givens. Constructivists, on the other hand, focus on the ways in which preferences are constructed in international and transnational forums. For constructivists, “social reality is created through debate about values”. Constructivist scholarship, accordingly, focuses on the ways in which “ideologies, identities, persuasion, and transnational networks” of activists and “intellectual entrepreneurs” construct a set of global understandings. These understandings, in turn, affect the conduct of states and individuals, both domestically and internationally. Many constructivist studies focus on transnational human rights norms. They emphasize that “international change results from the work of intellectual entrepreneurs who proselytize new ideas and ‘name and shame’ actors whose behavior deviates from accepted standards” (Snyder 2004: 60). Supreme Court watchers will see that the sorts of figures and processes that loom large in constructivist theory are looming increasingly large in the processes of the Court. Transnational “intellectual entrepreneurs” now routinely file amicus briefs in domestic constitutional cases, such as those involving gay rights and the death penalty, in which they take a position on these issues. In doing so, in many of these cases they are endeavoring to “name and shame” the justices into ruling in a way that they hold to be correct, and move the United States away from positions deviating from what they commonly describe as an emerging global consensus. Today the Court is receiving a growing number of amicus briefs from both foreign and domestic actors that make strident appeals to an emerging international consensus. International relations constructivists understand that a growing array of transnational actors are being involved in a process that seeks to transform – and, in some cases, revolutionize – the “role identities” of domestic judges. This involves an effort to have those judges understand their task in increasingly transnational (as opposed to purely domestic) terms (see Slaughter 2003: 192–193). A constructivist agenda for the American judiciary would involve both appeals to particular global

The justice as diplomat 107 norms (such as, for example, on the death penalty or affirmative action) and an effort to encourage a judicial role redefinition process more generally, through which domestic judges would come to see themselves as both domestic actors and part of a globalized, transnational community of intersubjective actors committed to the progressive realization of an emergent set of global norms. These efforts seem to have already born fruit. In certain contexts, the United States Supreme Court has appeared to be particularly cognizant of the “name and shame” dynamic that is at the core of much of the leading work of international relations contructivism. This is most apparent when issues or cases are successfully conceptualized as raising “human rights” issues – with the human rights framing emphasizing the universality of the principle. Death penalty cases are the most obvious in this regard. But, given the ambition and scope of the post-War international human rights agreements (including those that the United States has not ratified), many of which set out elaborate lists of rights extending well beyond those enumerated in the United States Constitution, litigants can tie almost any claim to a universal human rights statement that has been articulated somewhere by somebody. (See Ginsburg 2005; Roper v. Simmons, 543 U.S. 551, 578 (2005); Lawrence v. Texas, 539 U.S. 558, 576–577 (2003); Grutter v. Bollinger, 539 U.S. 306, 344 (2003)(J. Ginsburg, concurring); Knight v. Florida, 528 U.S. 990, 995 (1999)(J. Breyer, dissenting)). Some traditional diplomatic considerations It is entirely possible – and indeed likely – that to the extent that American judges are acting increasingly in line with international relations theory they are doing so, not because they have followed any sophisticated “theory” of international relations, but because they find some popularized version of it so important and convincing that they are led to try to incorporate the insights they take from it into relevant aspects of their job and their role as judges. The liberal foreign policy vision will appear in the guise of a newfound concern by judges for the health of a broader “multilateralist” – as opposed to a “unilateralist” – foreign policy. In an era in which the United States (particularly in the aftermath of the Second Iraq War) is criticized for not giving due respect to international institutions and international law – which are central to the liberal foreign policy vision – and to the extent that this is seen as hobbling rather than advancing American interests, American judges citing foreign precedent and practices (both when they follow those and when they reject them) will see themselves as doing their part. They will understand themselves as engaging in a process aimed at the desirable objective of bringing liberal rule of law values (i.e. American values) to formerly non-liberal non-democratic states. Justices influenced by constructivism/idealism are, of course, not likely to have read much of a dense literature concerning the social construction of identity and preferences. But, from the activities of governments and non-governmental organizations who are informed by those understandings, they will be very much aware that many people understand the world as moving in an increasingly

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progressive direction. Following the views of these groups, which are commonly reflected in the elite popular press (like the New York Times), they will see the United States as something of a moral laggard in many of these areas, and as falling embarrassingly behind the curve in the sweep of history. Here, too, the justices will want to do their part as cases involving the relevant issue areas come before the Court. They will not view this as siding with, for example, the European Union or Amnesty International against the United States and its interests. Rather, they will view their efforts as helping, in their own small way, maintain and advance the position of the United States as a global leader and not a global follower. Statements from Supreme Court justices reflect these considerations as well. Unsurprisingly, Justice Ruth Bader Ginsburg – the justice most inclined to the constructivist/idealist vision in looking abroad (though, as noted, she commonly makes liberal and pragmatic arguments as well) – has been especially likely to make such statements. In a speech to the American Society for International Law, for instance, she observed that: The United States is subject to the scrutiny of “a candid World”. What the United States does, for good or for ill, continues to be watched by the international community, in particular, by organizations concerned with the advancement of the “rule of law and respect for human dignity”. … I … believe we will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being – combining international terrorism is a prime example – require trust and cooperation of nations the world over. (Ginsburg 2005) Similarly, although judges might not be aware of the growing constructivist literature setting out an agenda concerning judicial role re-definition, they may be enticed by the notion that, in addition to serving as domestic judges, they can augment their service and their status by joining – as their counterparts abroad are doing – a “global community of courts” (Slaughter 2003: 192). As such, just as constructivists would advocate, they would come to see their job as increasingly characterized by both a domestic and a foreign policy dimension. Legal pragmatism as an influence: a separate category? At the outset of this chapter, I drew a distinction between justifications for a more globalized jurisprudence arising out of interpretive theory (originalism and pragmatism) and those arising out of visions of the nature of the world order (realism, liberalism, and constructivism/idealism, plus traditional diplomatic considerations). But I want to note that, particularly in the case of Justice Breyer, these two categories may not be altogether distinctive. Influential liberal international relations theorists like Anne-Marie Slaughter have argued that the world is moving towards a liberal order which will increasingly entail “governance” by problemfocused, transnational policy networks. Slaughter specifically considers domestic

The justice as diplomat 109 judges to be part of one such emerging transnational network (Slaughter 2003: 215–216, 218–219). Justice Breyer’s pragmatic, problem-solving interpretive stance fits seamlessly into this understanding of the world and the place it accords for an increasingly globalized judiciary (see O’Connor 2003: 234). As such, at least in his case, interpretive theory and international relations theory are, in many respects, one. It is clear that, for Justice Breyer, his comparativist turn is, in some respects, a natural outgrowth of his broader theory about what law is and how judges should approach and decide cases. In his debate with Justice Scalia at American University about the Court’s recent citations to foreign practices and precedents, he protested that, “I was taken rather by surprise, frankly, at the controversy that this matter has generated, because I thought it so obvious …. [W]hat’s cited is what the lawyers tend to think is useful” (Breyer and Scalia 2005). And lawyers think certain information is useful when they believe the judges they are arguing before will see it as useful. All of this information feeds into a single process, from which law ultimately emerges. As Justice Breyer described it in his debate at American University: Law is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we’re part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that’s the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. (Breyer and Scalia 2005) There is absolutely no reason for problem-solving judges in one country to insulate themselves from problem-solving judges in another country who might be facing similar questions. As Breyer explained, “If here I have a human being called a judge in a different country dealing with a similar problem, why don’t I read what he says if it’s similar enough? Maybe I’ll learn something” (Breyer and Scalia 2005). “If they have a way of working out a problem that’s relevant to us,” he added in an interview with Tim Russert, “it’s worth reading it, even if only to disagree with it” (Breyer 2005). Justice Breyer’s vision – which is shared in significant respects by Justice Ginsburg – thus dovetails with some of the suppositions of the (liberal) “global governance” outlook, which sees the world moving towards a system where key decisions are made by global networks of expert problemsolvers, operating within and across borders. The domestic politics of judicial globalization A word on the domestic politics of the liberal foreign policy outlook as adopted by judges is especially significant when considering judicial globalization. It is of

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considerable significance that the liberal foreign policy outlook, viewed generally, transcends contemporary partisan cleavages. Significant (and indeed predominant) elements in both the Democratic and Republican parties are committed, as a matter of bedrock policy and principle, to the cause of the spread of liberal democracy worldwide, both for reasons of values and for reasons of international security and stability. There are, to be sure, relatively strong cleavages within the Republican Party about the role of international institutions in promoting a worldwide liberal democratic order, a cleavage that will, inevitably, have effects on the views of certain Republicans on the importance of an increasingly globalized judiciary to advancing that order (see Snyder 2004: 58). But so long as the fundamentals of this commitment transcend the political parties, judges in both parties will feel it is legitimate to participate in the judicial globalization process, i.e. they will not see themselves as “betraying” their party, but as reinforcing its broader political vision. This means that it is easy enough to imagine not only Justices Breyer and Ginsburg as partisans of judicial globalization, but also Justices Kennedy and O’Connor (see O’Connor 2003b; Toobin 2005: 44). To be sure, over time, the partisan politics of these questions can change (as it did, for example, with abortion, which, at an earlier stage of its life as a political and constitutional issue, did not track the Democratic-Republican partisan divide). If anything, though, some elements of the Republican Party have become increasingly assertive about the importance of international institutions and multilateral consultation in realizing a progressively more liberal and democratic world – a view many believe has been vindicated by the mounting sense of the United States’ failure in Iraq. While the cross-cutting appeal of this globalist turn may be undercut to the degree it becomes too closely identified with liberal Democratic Party policy positions on key substantive political issues, this can only serve to provide additional support for Republican justices who seek to participate in judicial globalization A word on the domestic politics of the liberal foreign policy outlook as adopted by judges is especially significant in this regard (Kersch 2005: 382–383).

Conclusion Most of the discussions about the motivations behind an apparently internationalist turn by certain Supreme Court justices in cases involving the death penalty, gay rights, the right to die, federalism, and affirmative action, amongst others, have traced that turn to a newly cosmopolitan commitment on the part of these justices to “learning” from their fellow judges abroad, who, they have increasingly recognized, are working in parallel ways to solve similar constitutional “problems”. An abundance of statements made by these justices off the bench, however, suggest that their motivations are more varied. In this chapter, I have suggested that certain theories about international relations that are currently in the air – chiefly liberal internationalism and constructivism/idealism – have served as prisms through which these justices see the world and, in notable respects, motivate what they are doing. I have provided a taxonomy of these theories, suggested where a domestic judge deciding domestic constitutional cases might fit into the ideological framework,

The justice as diplomat 111 and adduced statements made by those justices which suggest that they envisage their globalist turn through the lens of those theories. My objective in this chapter has been mainly descriptive. I have criticized the Court’s globalist turn elsewhere, and I am not alone in this criticism (for example, see Kersch 2004a; Kersch 2004b; Kersch 2005; Kersch 2004c). I have found, however, that the supporters and critics of the Court and of this recent trend have frequently talked past each other. This is because discussion of the issue tends to move on separate tracks. One track – the one most familiar to law professors who are not specialists in international law – is that of interpretive theory, which pits originalism against pragmatism. The other, however, is what we might call the “diplomatic” track, which involves a set of often unstated theoretical and ideological assumptions concerning the nature of the international order, and the best way to improve it. This diplomatic track is actually quite familiar to international law professors, and other internationallyfocused scholars. It is also increasingly influential, in a popularized form, amongst the justices themselves. My hope here was, by considering both of these tracks as part of the same phenomenon, to provide a fuller picture of what is happening. Only by explicitly talking about both the interpretive theories and the broader ideological visions behind the trends can the issue of the potentially increased internationalization of domestic constitutional decision-making by courts be fully and effectively addressed. An earlier version of this chapter (with more detailed source notes) was published as “The Supreme Court and International Relations Theory”, Albany Law Review, 69: 771–799 (2006). Significant portions of that article are published here by permission. Thanks to the participants in the symposiums on “Democracy and Globalization” at the University of Maryland (co-sponsored by PEGS and Griffith University, Australia) and on “Outsourcing Authority: Citation to Foreign Court Precedent in Domestic Jurisprudence,” Albany Law School. Thanks also to the Social Philosophy and Policy Center at Bowling Green State University, where I was a visiting scholar in the fall of 2005.

8

Trade policy openness, government spending, and democratic consolidation: a preliminary investigation Michael J. Hiscox and Scott L. Kastner

The current political environment in the United States demonstrates clearly that trade policy can be a highly contentious issue within democracies. Even prior to the 2008 economic slowdown, members of Congress have increasingly demanded that protectionist barriers be raised against trade with China. In the 2004 presidential election, the protectionist message of John Edwards appeared to resonate with middle-class workers, even though the vast majority of them probably benefit from trade openness (via cheaper consumer goods), and a relatively small percentage of them will actually lose their jobs as a result of trade. Part of the reason for this apparent contradiction may well reside in the lack of an extensive social insurance policy for those who do lose their jobs as a result of trade: even though a majority may expect to benefit from trade ex ante, a majority might still reject openness because its downside risks are too high in the absence of insurance (see, for example, Fernandez and Rodrik 1993). That such a dynamic shows signs of influencing public policy even in the United States, with its large internal market that is relatively isolated from shocks in the global economy, suggests that sustaining openness in democracies that lack substantial social safety nets may be a dicey proposition (Adsera and Boix 2002). In the United States, if the anxiety generated by trade policy openness combined with limited social insurance were indeed to become a primary issue determining how people cast their votes, policy would likely change – either in the direction of less openness to the global economy or more welfare state spending. But as Adsera and Boix (2002) note, a third possibility lurks at the margins: actors who expect with a high degree of certitude that they will benefit from openness (and hence who don’t stand to benefit from insurance) might try to circumvent democratic institutions and impose openness through a dictatorship. In a country with firmly entrenched democratic institutions like the US, such a possibility is remote. On the other hand, such a dynamic would seem more plausible at the margins within a country with relatively fragile democratic institutions. In this chapter we hypothesize that democracies that are both open to trade and that do not provide substantial social insurance are more prone to failure than democracies that are either closed to trade or that maintain high levels of social insurance. Initial results utilizing a new measure of trade policy openness are promising.

Trade policy openness, government spending, and democratic consolidation 113

Openness, spending, and democratic consolidation The general relationship between democracy and trade openness is subject to considerable theoretical and empirical debate. In autocratic regimes the orientation of trade policy will obviously depend upon the particular desires of the (nonelected) leadership. An autocratic government might pursue trade liberalization in an effort to maximize tax returns over the long-term by increasing economic efficiency and, hence, aggregate economic output. Such a government may well be more insulated, after all, from lobbying by domestic groups that favor trade protection (see Haggard 1990). On the other hand, autocratic governments often appear to draw strong political support from small, powerful groups in the political system that favor protection, and frequently use trade barriers in ways aimed at distributing benefits that consolidate their rule and maximizing tax revenues in the short term (see Wintrobe 1998). Democratization may well be compatible with trade liberalization in nations in which a majority of voters would stand to gain demonstrably via higher real wages (Milner and Kubota 2005), but whether this is actually the case in any particular nation would hinge on local endowments of labor and other factors of production relative to trading partners (see Dutt and Mitra 2002). Policy outcomes in democracies may also vary considerably depending on the types of electoral institutions that are put in place (Rogowski 1987). While the recent rush to free trade in the developing world has coincided with the spread of democracy in a general way, just which of these phenomena is the cart and which is the horse is not very clear. Increasing trade openness appears to have pre-dated democratic reform in many cases – for example, in Chile, Turkey, Taiwan, and South Korea, and now in China – but not in others (see Haggard and Webb 1994). Although frequently overlooked in many empirical studies of the causes of democratization (e.g. Przeworski et al. 2000), a growing body of work has recently considered the effects of economic openness – measured in terms of either trade or capital flows – on democracy, with divergent conclusions. Li and Reuveny (2003) provide an excellent overview of these conclusions. Arguments that trade openness facilitates democracy tend to focus on the societal demands that trade generates. Trade, for example, can spark development; citizens in developed countries, in turn, demand greater influence over political decisions (e.g. Lipset 1994). Trade can facilitate income equality, especially in labor-abundant developing economies in which demand for labor rises in line with increased exports of labor-intensive goods, and this shift in the distribution of income itself tends to be associated with democracy (see Acemoglu and Robinson 2001; Rueveny and Li 2003). Or trade might generate a new international business constituency with a vested interest in peace, and peace, in turn, is most likely to be achieved in the presence of democracies (e.g. Oneal and Russett 1997, 1999). However, empirical findings are mixed. Li and Reuveny (2003) find that trade openness is negatively associated with democratic institutions: in analyzing a large sample of countries over the years 1970–1996, the authors find that higher levels of trade openness are associated with lower levels of democracy. On the other hand, Milner and Kubota (2005) find that democracy is correlated with lower tariff rates in developing countries. This finding

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appears generally consistent with Boix and Garicano’s (2001) argument that the effect of trade openness on democracy is itself contingent on the distribution of factors within a particular economy. When skilled workers are the abundant factor, trade openness increases inequality within society (driving up the wages of skilled workers, deflating the wages of already poorer unskilled workers), and growing inequality is not conducive to democratic stability. A separate, but related, literature considers the relationship between economic openness and government spending. Specifically, several studies have found that openness to trade is broadly correlated with the size of the public sector (Cameron 1978; Rodrik 1998; Garrett 1998; Adsera and Boix 2002). One explanation given for this relationship is that integration into world markets increases specialization within an economy. Increased specialization, in turn, implies less diversification and hence greater exposure to the risks arising from volatility in the global economy. To hedge against these risks, states that are open to world markets increase public expenditures to compensate losers (Katzenstein 1985) and expand the size of the non-exposed public sector (Rodrik 1998).1 Leaving aside the rather questionable argument that greater trade openness will generate more (rather than less) volatility in incomes in all instances, “race-to-the-bottom” arguments challenge the tenability of this relationship into the future, particularly in an era of global capital markets that might put pressure on governments to lower tax rates in order to be a more hospitable locale for international investors who might finance export industries. The degree to which national governments in different types of economies may still have room to finance generous welfare states even in the context of large international flows of capital is, of course, still hotly debated (see Garrett 1998; Mosley 2003). A handful of recent studies bridge the gap between these two literatures, arguing that social spending, economic openness and democracy should be considered simultaneously (Adsera and Boix 2002, Rudra and Haggard 2005, Rudra 2005). Rudra (2005) argues that previous studies considering the relationship between democracy and economic openness do not sufficiently consider the political dynamics underlying such a relationship, and shows that increased trade and financial openness only leads to greater democracy when social spending also increases.2 Similarly, Adsera and Boix (2002) argue that previous studies linking public expenditures with trade openness do not adequately consider the political mechanisms that give rise to the relationship. These studies view government spending in largely functionalist terms: something that makes integration into world markets politically feasible. This view strikes the authors as implausible in light of the redistributive characteristics of trade and fiscal policies. Instead, Adsera and Boix argue that three different equilibria relating government spending, openness, and regime type are equally plausible. First, policymakers may simply choose not to integrate into world markets: by insulating their domestic economies, they don’t need to worry about compensating the losers from trade, and hence can limit the amount of income redistribution that they pursue. Second, the winners from trade could strike a bargain with potential losers, such that redistribution programs to compensate those hurt by trade are set up as a precondition for economic openness.

Trade policy openness, government spending, and democratic consolidation 115 Here, open regimes would coexist with relatively large public sectors. Finally, those who benefit from trade can open the economy without compensating losers, but are only able to do so if they manage to exclude potential losers from the decisionmaking process. This normally requires that they operate within an authoritarian setting, or (simultaneously) establish such a setting! The model hinges on a group of swing voters who benefit from trade during global economic upswings, but are hurt substantially during global recessions. Given uncertainty about future world economic conditions, free trade interests can only garner the support of these voters – and hence win elections – if they offer redistributive packages designed to compensate actors who suffer in an open economy when global markets are in recession. These effects, the authors emphasize, should occur at the margins, as other factors also influence regime type and government spending decisions. We expand the logic of this argument by applying it to regime stability. Imagine a democratic regime that is both open to trade and that does not provide substantial compensation to those harmed by trade. In the context of the Adsera-Boix model, this outcome is clearly out of equilibrium, though it can easily be imagined how such an outcome might come about. Obviously, it could be that other issues are more salient politically than the issue of gains and losses associated with trade. Alternatively, one might speculate that in a period of global economic growth, swing voters who benefit from trade in boom times and lose from trade in bust times might acquiesce to an open regime without compensation for as long as they expect the world economy to continue thriving. But the sustainability of such an outcome is tenuous, ceteris paribus. Over time, swing voters demand insurance in exchange for their support of a free trade regime, particularly if global economic prospects worsen; otherwise, many will prefer a shift toward protectionism. In a democratic setting, policy should move in one of these directions over time, all else equal. To actors who always benefit from free trade, either of these possibilities is costly, and they may well try to resist. In Adsera and Boix’s model, therefore, a third possibility exists: the strongest advocates of free trade might try to impose a dictatorship in order to maintain trade openness without redistribution. Of course, in most democracies, this outcome is highly unlikely: in institutionalized democracies, coups are rare. But within a democracy that is, for other reasons, already relatively susceptible to failure, such a possibility should not be dismissed. Again, since we are here considering open democracies that don’t provide government compensation, free trade interests would be the status quo party in our scenario – they are the ones in charge already, and as such they likely hold considerable influence over the instruments of state coercion. All else equal then, democracies that are both highly open and that do not provide compensation for those citizens exposed to losses from a shift in world markets should be especially susceptible to democratic breakdown or failure. Hypothesis: Democracies that are both open to trade and have limited government spending are more prone to failure, ceteris paribus, than other democracies.

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Plausibility probes Before proceeding to the quantitative analysis, it would perhaps be useful to first consider a handful of historical cases to determine the plausibility of the causal argument outlined above. The discussion here is necessarily cursory, and in no way represents a rigorous test of our hypothesis. Rather, we simply aim to show that the interaction between openness to trade and government spending sometimes appears to be a salient factor influencing the stability of democratic regimes. To the extent such factors do appear to be salient, it both justifies undertaking a more systematic empirical test of our hypothesis and improves our confidence that any confirming findings generated by a large-n study are not spurious. Stable democracies As Adsera and Boix (2002) show, many of the world’s most stable democracies over the course of the twentieth century either combined openness to trade with high levels of government spending, or alternatively, pursued limited government spending while maintaining more limited exposure to trade. In Britain, for example, the expansion of the franchise in the nineteenth century put the laissez-faire system combining trade openness and limited government under increasing strain. By the early twentieth century, the pro-free trade Liberal Party began to implement a number of compensation programs, such as an old-age pension program and unemployment insurance (the Labor Party would later advocate similar policies). Though the Conservatives pushed for – and in the 1930s enacted – more protectionist measures as an alternative, the country after 1945 clearly moved into “the camp of open borders and sizable public intervention” (Adsera and Boix 2002: 250). A similar dynamic occurred in Scandinavia (Adsera and Boix 2002). More recently, while the Franco dictatorship in Spain pursued, after the late 1950s, trade liberalization without significant increases in government spending, since the transition to democracy in the mid-1970s Spain has combined continued trade liberalization with dramatic increases in government spending (Adsera and Boix 2002). Australia and New Zealand, meanwhile, pursued more limited government spending but higher protectionist barriers to trade over much of the twentieth century (Adsera and Boix 2002). To this list we might add the United States; though by some measures the US is actually relatively open to trade, workers’ exposure is more limited here due to the large domestic market (and, hence, the low ratio of trade to GDP). India, one of the most enduring democracies among developing countries, has, of course, maintained very high protectionist barriers to trade since it achieved independence; only in the 1990s did it begin to dismantle some of these barriers. Cases of democratic breakdown: Chile and Argentina Now consider two cases that suffered well-known democratic breakdowns during the twentieth century: Argentina and Chile. To what extent can the causal processes

Trade policy openness, government spending, and democratic consolidation 117 outlined in the previous section help us to understand transitions to authoritarianism in these countries? In Argentina, events preceding the 1930 military coup appear at least somewhat consistent with the argument. During the late nineteenth century and early twentieth century, conservative agricultural interests dominated a political system that limited voting rights to the upper classes. In turn, the country embraced a liberal trade policy where it exported – according to its comparative advantage – agricultural products in exchange for manufactured goods; the government’s role in the economy, moreover, was generally quite limited (Manzetti 1993: 24–5; on trade policies, see also Berlinski 2003). Following electoral reforms in 1912, which expanded the suffrage, Conservative dominance waned and Radical administrations governed the country from 1916 until the 1930 coup. The Radicals continued to promote open trade policies – in part because land-owning elites continued to hold important posts in the government – but tried to garner support among the middle class via political patronage, and in particular by increasing the number of government jobs (Manzetti 1993: 31–2). As Manzetti (1993: 33) writes, these policies produced a “fiscal deficit on the eve of the Great Depression”, which in turn led “commercial and land-owning elites [to] put pressure on the government to cut its deficit and redirect funds” away from social programs. These pressures culminated in a military coup which reasserted conservative rule. In short, it seems that the combination of open trade policies and limited government efforts at redistribution was a destabilizing factor within the increasingly democratic political system that emerged in the 1910s. Radical efforts to placate middle class voters via patronage (and the growing fiscal imbalances and corruption problems that resulted), in turn, helped to trigger a conservative backlash – though other factors were of course salient, such as the growing world economic crisis. In Chile, on the other hand, the causal processes that we specified earlier do not appear to be particularly central. Here, a 1973 military coup violently ended the presidency of Salvador Allende, ushering in the brutal Pinochet dictatorship that would rule the country through the 1980s. For the 15 years preceding the coup Chilean politics were characterized by a tripartite split: the presidency was held alternatively by the Right, Center, and Left during this period (Oppenheim, 1993: 22). The Right’s candidate, Jorge Alessandri, won the 1958 election and proceeded to implement orthodox, pro-market and pro-foreign investment economic policies that eschewed a large government role – expecting instead that wealth would trickle down to the poor via a capitalist development model (Oppenheim 1993: 23). But government spending began to increase later in Alessandri’s term – partly in response to a devastating earthquake that hit the country in 1960 (Sigmund 1977: 26) – and, in general, government spending in Chile was relatively high by Latin American standards (Foxley et al. 1979), while the country since the 1930s had pursued protectionist import-substitution industrialization (Ritter 1992: 6). The government’s role in the economy increased somewhat under the centrist Eduardo Frei (1964–1970), and then more dramatically under Allende, who aimed to build a socialist economy (Oppenheim 1993). It was only after the bloody 1973 coup that Pinochet’s authoritarian regime implemented an orthodox market-based

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economic program that emphasized privatization and that by 1978 had led to a sharp drop in tariff rates (Foxley 1983). In short, Chile was characterized neither by open trade policies nor limited government spending prior to the 1973 coup; democratic breakdown occurred in this case for reasons other than those specified in our argument. These short plausibility probes suggest that further testing is warranted. While the dynamics we describe were not salient in Chile, they do appear to be at least somewhat relevant in Argentina’s 1930 coup. Moreover, many of the world’s most stable democracies either pursued open trade policies combined with high government spending, or protectionist policies. Again, we hardly expect the dynamics we have described to be salient in all or even most cases of democratic breakdown. Rather, we simply expect that, at the margins, a combination of open trade policies and limited government spending can contribute to democratic instability; to test this hypothesis more systematically, quantitative tests appear necessary.

Quantitative research design Since our hypothesis is concerned with democratic failure, our approach is to model the likelihood of transition from democracy to autocracy within a sample of democratic countries. Thus we use logistic regression in which our dependent variable is coded 1 if democratic failure occurred in the following year and 0 otherwise. We code countries as being democratic or autocratic based on Przeworski et al.’s (2000) classification of regimes worldwide from 1950–1990; whether a democratic failure (e.g. a transition to autocracy) occurred was likewise coded based on Przeworski et al.’s (2000) classification. Measuring trade policy openness and government spending Our hypothesis clearly requires measures of government spending and trade policy openness. To measure government spending within countries, we begin by using World Bank data on government consumption as a percentage of GDP within countries. We use this measure because it is available for a large sample of countries over an extended time frame; however, Adsera and Boix (2002) note that this measure does not capture all government spending. As such, we also check the robustness of our results by using a measure of government revenue that comes from Burgoon (2006). Measuring trade policy openness, meanwhile, is not a straightforward task. In a world in which trade policy distortions are increasingly hidden, estimating a country’s trade barriers is difficult: simply using tariff data, for example, clearly fails to deal with non-tariff barriers to trade. Trade to GDP ratios are also problematic, as they tend to bias against countries with large internal markets and countries that are relatively isolated from other countries (and hence would be expected to trade less for any given level of policy openness).3 To deal with these problems, we use a new measure of trade policy openness derived by estimating country/year fixed effects using a gravity model of trade. The logic behind this operationalization is

Trade policy openness, government spending, and democratic consolidation 119 straightforward: after controlling for factors widely known to affect trade (distance between countries and market size), remaining country-specific effects should, to a large extent, reflect protectionist trade barriers (Hiscox and Kastner, n.d.). The basic gravity model posits that the volume of trade between two nations is an increasing function of the incomes of those nations and a decreasing function of the distance between them, although other variables, including whether the countries share a common border, a common language, and/or a common currency are often added to the model (e.g. Linneman 1966; Aitken 1973; Frankel, Stein, and Wei 1995; Rose 2000). The model has proved to be an extremely effective framework for gauging what patterns of trade are normal or natural among nations (see Frankel and Wei 1993: 3; Baier and Bergstrand 2001: 3–4).4 By implication, the model should also be able to help us in identifying abnormal or distorted patterns of trade and estimating the extent to which these are due to the trade policies of particular nations. The basic gravity model is typically expressed in log-linear form as: ln Mij = α + β ln Yi + γ ln Yj – δ ln Dij ,

(1)

where Mij represents total trade flow into country i from country j, Yi and Yj denote national incomes (outputs), Dij is the distance between the economic centers of each country, and α, β, γ, and δ are positive parameters. This equation is estimated for a cross-section of country pairs in a specific year or pooled over a number of years. While it is still common to criticize the model for lacking theoretical underpinnings (e.g. Leamer and Levinsohn 1995), recent work has actually provided the basic gravity equation with a firm foundation in trade theory (e.g. Anderson 1979; Bergstrand 1985; Bergstrand 1989). In particular, Deardorff (1998) has shown that the root equation from which the log-linear form (1) follows – Mij = α Yi β Yj γ Dij–δ – can be derived from Heckscher–Ohlin and Ricardian models of trade as well as models based upon imperfect competition and increasing returns to scale.5 To use the basic gravity model to provide estimates of policy-induced distortions in trade flows, we can add dummy variables for each importing country in each year for which the model is estimated. This has the effect of relaxing the restriction that the intercept of the gravity equation must be the same for all importing countries (in each year). Country i’s annual income is a constant for each importing countryyear, but we need to control for the separate effects of income on imports and not have them subsumed in the country-year intercepts when the model is estimated. To this end we assume that the own income elasticity of imports is approximately one, which fits well with results from numerous multi-country, multi-year estimations of the gravity model to date (e.g. Aitken 1973; Bergstrand 1985; McCallum 1995; Wall 1999) and is consistent with theoretical expectations (Grossman 1998: 39).6 The practical effect of this constraint is that, like other notable gravity model studies that have applied the same assumption implicitly (e.g. Pritchett 1996; Frankel and Wei 1993; Frankel and Romer 1999), we use trade as a proportion of income as the dependent variable. The regression equation can now be written as

120

M.J. Hiscox and S.L. Kastner ln (Mijt / Yit ) = αit + β ln Yjt – δ ln Dij + εijt

(2)

where αit is the importing country-year intercept for country i in year t, and εijt is an error term. A similar approach has been used to gauge the effects of regional trade agreements on trade flows by using dummy variables for pairs of nations in the same regional bloc as a proxy for regionally specific discriminatory policies (e.g. Aitken 1973; Frankel and Wei 1993). The set of estimated coefficients, αit, from a regression using equation (2) provides a way to evaluate the distorting effects of each importing country’s policies in each year when compared to the mean for the entire sample. The country-year dummy variables stand in for the (unmeasured) relative openness of trade policy orientations. We estimated equation (2) using a panel of bilateral trade flows to and from 76 countries for the years from 1960 through 2000. The 76 countries are all the countries for which reliable bilateral trade data are available for all 41 years. To calculate the dependent variable for the analysis we use the value of imports to country i from country j in year t (xijt) in constant dollars. The nominal trade data come from the Expanded Trade and GDP Data Set compiled by Gleditsch (2002), and recently updated through 2000. The primary source for this data is the International Monetary Fund’s Direction of Trade Statistics, which began reporting bilateral trade flows in 1958, though Gleditsch used alternative sources to fill in missing values in some bilateral series.7 Gleditsch also uses leads and lags to replace data that is missing at either the beginning or the end of each bilateral series. We excluded dyads that required a lead or a lag of five or more years during the period 1960–2000.8 As a result, the data set that we use is not “square”: some countries have more trade partners than others. The minimum number of partners for any one country is 35 (for Jordan and Chad); the OECD nations typically have complete data on all or nearly all 75 potential partners in the set, and the average number of partners across importing nations is 59.3. In general, data for developed countries are more complete than for developing countries. The data on nominal GDP for country i and j (yit and yjt) also come from Gleditsch (2002), for which the primary source is the Penn World Tables and secondary sources include the CIA’s World Factbook.9 The distance measure we use (dij) is the direct-line distance in kilometers between the major airports in countries i and j, reported in Hengeveld (1996). The results of estimating equation (2) are presented in Table 8.1. Using the mean sample intercept as the “benchmark” for measuring the countryyear effects is a reasonable convenience. But to render the results into a form that more closely resembles alternative measures of tariff and non-tariff barriers to trade, we have expressed these effects as differences from the sample maximum intercept – which turns out to be Belgium in 1980. For our purposes, this maximum intercept serves as a “free trade” benchmark. We then express these deviations as positive percentages of the predicted log of ratio of imports to GDP when all variables are set to their sample means and the intercept is set to its “free” trade maximum. All relative comparisons between the scores from country to country and year to year remain the same after these transformations, of course, but the results take on a more intuitive form where higher percentages represent increased

Trade policy openness, government spending, and democratic consolidation 121 Table 8.1 Estimation of a gravity model of bilateral imports* Independent variables Income of exporting country

1.47 (395.22)

Distance between countries

–1.47 (–174.59)

Constant (mean intercept)

–13.58 (–170.20)

F-Statistic for country-year

11.28

Intercepts (3116 categories) Adjusted R-squared Observations

0.54 184,910

* Dependent variable is ln(imports/GDP). All explanatory variables also logged (see text for full descriptions of each); both least squares regressions also include 3115 country-year dummy variables (individual coefficients not shown); t statistics are in parentheses.

trade distortions. Table 8.2 summarizes the average value during the 1990s of this measure – which we refer to as Basic Country-Fixed Effects, or BCFE – for all 76 countries. Of course, a potential problem with this measure is that other factors unrelated to government policy may influence bilateral trade flows. That is, the measure cannot distinguish between the effects of changes in trade policies and other changes, specific to particular importing countries in particular years, that also affect trade flows and are not accounted for in the model. As such, we re-estimated equation (2) after adding numerous additional controls, including factor endowments differentials, per capita income in the exporting country, and other geographical features like remoteness and whether a country is landlocked or not. Even when all of these additional controls are added, the resulting country/year-specific effects remain highly correlated (0.98) with those estimated using the basic model (equation (2)). We thus proceed here using the original BCFE measure. Elsewhere (Hiscox and Kastner, n.d.) we report on a series of tests that show the measure to be quite robust to changes in model specification and changes in the composition of the sample used to derive it. Operationalizing the interaction To test our hypotheses, we need to examine whether regimes that have both low levels of government spending and high levels of trade policy openness are especially prone to failure. To do so, we clearly need an interactive variable that combines the two measures described in the previous section. Multiplying the two continuous variables together would generate an interactive term that is difficult to interpret, and worse, that could produce misleading results. To see why, consider

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Table 8.2 Country Averages for Basic Country-Fixed Effects (BCFE), 1990–2000 (sorted by openness)* Country

BCFE

Country

BCFE

Country

BCFE

BEL

8.7931

GRC

31.8652

NIC

41.592

NLD

14.2169

URY

32.9316

TUR

41.672

NZL

18.7440

ISR

33.7376

VEN

42.647

FRA

18.8615

CIV

34.223

BEN

43.197

PRT

19.0978

SEN

34.788

NGA

44.179

ESP

19.6546

MAR

35.409

SLV

44.604

GER

20.0338

JOR

35.801

COL

46.056

JPN

20.0478

TUN

36.034

DOM

46.691

USA

20.9774

COG

36.861

GHA

47.192

ITA

22.0853

PHL

37.362

PAK

47.798

CHE

23.5089

GAB

37.856

ZAR

47.855

THA

24.5358

SAU

37.930

PRY

47.973

GBR

24.5761

LKA

38.016

MLI

48.271

CAN

24.9918

PER

38.028

CHN

48.446

IRL

25.5443

IDN

38.199

CAF

50.092

AUS

25.6953

ZAF

38.731

EGY

50.515

FIN

26.6348

BOL

38.840

NER

51.408

KOR

26.7230

MRT

39.034

BFA

51.438

CHL

26.8340

HND

39.282

IRN

51.941

DNK

26.9743

MEX

39.859

HTI

52.916

SWE

27.0648

BRA

39.885

IND

53.688

AUT

27.4592

CMR

40.447

ETH

54.334

CRI

28.9325

MDG

40.958

GIN

55.291

NOR

29.0084

ARG

41.237

TCD

56.342

ISL

30.0402

ECU

41.350

TGO

31.0094

GTM

41.422

*See Table 8.5 for the key to the Penn World Tables 3-letter country codes

how such a variable would look. The variable would take a small value in countries that are both open to trade and have low government spending. As government spending goes up, the variable would take on higher values, suggesting that the variable should be negatively correlated with the probability of democratic failure. But the variable takes on its highest values when both government spending is high and trade barriers are high. Yet our hypothesis in no way suggests that democracies that are both closed to trade and have high government spending should be more stable than democracies that are open to trade and have high government spending; if anything, we suspect that the reverse may be true.

Trade policy openness, government spending, and democratic consolidation 123 To get around this problem, we converted government spending into a dummy variable (which we will call small government) equal to 1 if government spending is in the lower quartile of all observations in the sample, and equal to 0 otherwise. This cutoff point is obviously arbitrary; below, we report further tests that show our initial results to be robust to a range of alternative cutoff points on either side of the 25th percentile. Furthermore, on an intuitive level, the results would be easiest to interpret were we to interact small government with a variable that measures openness to trade rather than closure to trade. That is, the variable that we interact with small government should get larger as a country is more open to trade. To create such a variable, we simply subtracted a country’s BCFE score for a given year from the maximum value of BCFE. This new variable (trade policy openness) is scaled the same as BCFE, but now the highest values correspond to the most open countries. Our interactive variable, then, is small government * trade policy openness. Our hypothesis suggests that this variable should be positively correlated with the probability of a democratic failure (democracies that have small governments and are open to trade should be more prone to failure than democracies with big governments or democracies that are closed to trade). Control variables It has been recognized for some time that democracy and development are correlated (Lipset 1959), though the reasons for that correlation are not without controversy. It is suggested by some, for example, that development increases the likelihood of a transition to a democracy, though recent research by Przeworski et al. (2000) suggests that the driving force behind the relationship is that democracy is simply more likely to survive when a country is developed than when it is not. As such, we control for logged real per capita income (per capita income), which comes from the Penn World Tables. We also include a variable that measures percent change in per capita income from the previous year (change pci), to control for economic shocks that might influence the possibility of regime change. Additionally, we include several control variables that existing studies (e.g. Przeworski et al. 2000) have suggested may influence the probability of regime transitions including: the percentage of the population that was Catholic (as of 1980 – percent Catholic); the percentage of the population that was Muslim (as of 1980 – percent Muslim); whether the country’s territory once was part of the British Empire (UK legal origin); and the number of previous democratic failures since 1960 (previous failures). All models contain a control for the number of years since entry into the sample as a democracy (time). For example, if a country became a democracy in 1972, and the year is 1987, then this variable would be coded 16 (since 1987 would be its 16th year as a democracy). The variable begins at 1 for countries that were democracies in 1960. Including such a variable helps to control for temporal dependence in the data (Beck et al. 1998). Finally, in some models we add regional dummy variables, to control for factors that are region-specific and that might not be captured in the other control variables.

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Sample The start date for our analysis is 1960, which is the first year for which we have a measure of trade policy openness. The end date is 1990, the final year for which regime types were coded by Przeworski et al. (2000). Our sample consists of 963 country/year observations for 45 countries (all democracies). Democratic failures occurred 23 times (in 16 different countries), or in approximately 2.4 percent of the observations. Table 8.3 lists each case of democratic failure, and the year preceding its occurrence (the last full year of democracy).

Table 8.3 Democratic Failures* Country

Year

Guatemala

1962

Honduras

1962

Ecuador

1962

Peru

1961

1981

1967 1989 Brazil

1963

Chile

1972

Argentina

1961 1965 1975

Uruguay

1972

Greece

1966

Ghana

1971 1980

Nigeria

1965 1982

Congo, Republic of

1962

Turkey

1979

Pakistan

1976

Sri Lanka

1976

Philippines

1964

*Year indicates the final full year of democratic governance.

Trade policy openness, government spending, and democratic consolidation 125 Table 8.4 Logistic regression Dependent variable: probability of democratic failure Independent variables:

A

B

C

D

Time

–.073* (–1.58)

–.072** (–1.66)

–.045 (–.99)

–.044 (–.95)

Per capita income

–1.478*** (–3.01)

–1.250*** (–2.34)

–1.480** (–2.11)

–1.645** (–2.08)

Change pci

–8.196** (–1.76)

–9.982** (–2.17)

–10.447** (–2.10)

–10.731** (–2.14)

Previous failures

.035 (.07)

–.104 (–.20)

–.362 (–.65)

–.364 (–.65)

Percent Muslim

.013* (1.30)

.012 (1.09)

.018* (1.32)

.013 (.79)

Percent Catholic

.005 (.52)

.010 (.27)

–.005 (.41)

.007 (.44)

UK legal origin

–.635 (–.73)

.251 (.27)

–.540 (–.48)

–.178 (–.15)

Africa

2.366*** (2.64)

1.905 (1.14)

South America

1.610** (2.25)

1.260 (.91)

Asia

–.487 (–.31)

Middle East

–.478 (–.31)

North America

.681 (.31)

Small government

.327 (.65)

–3.802*** (–2.57)

Openness to trade

.014 (.61)

–.055* (–1.51)

–3.582** (–2.32)

–3.914*** (–2.40)

–.029 (–.71)

–.031 (–.76)

.119*** (2.87)

.109*** (2.53)

.120*** (2.59)

8.412** (2.04)

8.693** (2.13)

9.130** (1.75)

10.656* (1.61)

n

963

963

963

963

Pseudo R–squared

.2205

.2660

.3285

.3304

Small government * trade openness Constant

Column A: reports results without the inclusion of the interactive variable (openness to trade * small government) Column B: reports results with the inclusion of the interactive variable (openness to trade * small government) Columns C and D: add regional dummies to the equation Notes z-statistics in parentheses *>.90 significance in one-tailed test ** >.95 significance in one-tailed test ***>.99 significance in one-tailed test

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Results Initial results are reported in Table 8.4. Column A reports results without the inclusion of the interactive variable (openness to trade * small government); column B then adds the interactive variable. The coefficient on the interactive term is both in the expected direction (positive, meaning associated with a higher probability of failure) and highly significant. Columns C and D add regional dummies to the equation. Adding the regional dummies does not greatly alter the interactive term’s coefficient or significance. It appears, in other words, that openness to trade and the size of the government sector interact in a significant way to influence the probability of democratic failure. For a substantive interpretation of these results, consider Figure 8.1, which shows predicted probabilities of democratic failure using the results of the model presented in column C of Table 8.4. Here we compare the relationship between trade policy openness and the probability of failure in countries with low government spending (small government = 1) to the relationship between openness and failure in countries with higher government spending (small government = 0); all continuous control variables are held at their mean values, and all dichotomous control variables are held constant at their median values. For democracies with 0.12 Probability of democratice failure

0.011 (.094)

0.10

0.08

0.06

0.057 (.044)

0.04 0.031 (.021)

0.02

0.00

0.009 (.007)

0.005 (.006)

15

30

small gov=1 small gov=0

0.019 (.012)

45

60

75

90

Openness (percentile) Less open to trade

More open to trade →

→

Figure 8.1 Predicted Probabilities of Democratic Failure Note: Predicted probabilities obtained using Clarify (King et al. 2000), and are based on the model reported in column C of Table 8.4. All continuous controls are held at their mean values, and dichotomous controls at their median. (So, for example, for an otherwise average democracy with low government spending and that is more open to trade than 75 percent of the countries in the sample, the predicted probability of failure in a given year is 5.7 percent.) Standard errors are in parentheses.

Trade policy openness, government spending, and democratic consolidation 127 low government spending, increasing trade policy openness is clearly associated with a growing likelihood of failure. When small government equals 0 (i.e. higher government spending), however, the probability of failure remains rather steady even as openness increases. Simple simulations using Clarify (King et al. 2000) reveal that the upward slope of the small government curve is highly significant (meaning countries that have low government spending and high trade openness are significantly more likely to fail than countries with low government spending and low trade openness), though we should caution that the standard errors become rather large as countries become more open. In summary, these results confirm our hypothesis, though the large standard errors suggest that the magnitude of the predicted effect is subject to considerable uncertainty. Further robustness checks As an alternative way to test our hypothesis without using interactive variables, we estimated the relationship between trade policy openness and democratic failure separately for countries with low government spending (small government = 1) and higher government spending (small government = 0). Our expectation here is that increasing trade openness should be correlated with a higher probability of failure for democracies with low spending, but not in countries with higher spending. We used the same control variable used in the regression reported in column C of Table 8.4. As expected, increased trade policy openness is positively and significantly correlated with an increased risk of failure when small government = 1 (n = 223), but it is not even remotely significant (z statistic = 0.05) when small government = 0. This simple test, then, produces the same basic results reported above without the use of interactive variables. Second, recall that we arbitrarily chose the 25th percentile as a cutoff for countries to be classified as having low government spending (small government = 1). We did this because interacting two continuous variables here would produce highly misleading results. As a robustness check, we chose a series of alternative cutoff points on either side of the 25th percentile to distinguish between low and higher-spending governments. If we instead chose the 15th percentile as a cutoff point (meaning small government equals 1 only for countries that have government spending lower than 85 percent of the countries in the sample), the interactive variable continues to be positive and significant at the 99 percent level of confidence; the same is true for the twentieth percentile as a cutoff point. When the cutoff point is, instead, the 30th or the 35th percentile, the interactive variable remains positive, but its significance declines to the 95 percent level. When the cutoff is the 40th percentile, the significance level of the (still positive) interactive term drops to the 90 percent level. In short, the results do not seem to depend heavily on the precise delineation point between low government spending and “non-low” government spending; instead, the results are quite robust to a range of alternative cutoff points. Finally, we generated the variable small government using data on government revenue rather than government consumption; the dataset we used here (Burgoon

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Table 8.5 Penn World Tables 3-letter country codes Code

Country

Code

Country

ARG AUT BEN BOL CAF CHE CHN CMR COL DNK ECU ESP FIN GAB GER GIN GTM HTI IND IRN ISL ITA JPN LBR MDG MLI MAR MYS NGA NLD NZL PAN PHL PRY SEN SOM TCD THA TUR USA ZAF

Argentina Austria Benin Bolivia Central African Republic Switzerland China Cameroon Colombia Denmark Ecuador Spain Finland Gabon Germany Guinea Guatemala Haiti India Iran Iceland Italy Japan Liberia Madagascar Mali Morocco Malaysia Nigeria Netherlands New Zealand Panama Philippines Paraguay Senegal Somalia Chad Thailand Turkey United States South Africa

AUS BEL BFA BRA CAN CHL CIV COG CRI DOM EGY ETH FRA GBR GHA GRC HND IDN IRL IRQ ISR JOR KOR LKA MEX MMR MRT NER NIC NOR PAK PER PRT SAU SLV SWE TGO TUN URY VEN ZAR

Australia Belgium Burkina Faso Brazil Canada Chile Cote d’Ivoire Republic of the Congo Costa Rica Dominican Republic Egypt Ethiopia France United Kingdom Ghana Greece Honduras Indonesia Ireland Iraq Israel Jordan Korea, Republic Sri Lanka Mexico Myanmar Mauritania Niger Nicaragua Norway Pakistan Peru Portugal Saudi Arabia El Salvador Sweden Togo Tunisia Uruguay Venezuela Democratic Republic of the Congo

Trade policy openness, government spending, and democratic consolidation 129 2006) only extends back to 1975, but the results again are encouraging. Despite the smaller sample size, the interactive variable remains significant at the 95 percent level of confidence.

Conclusion Recent work, and in particular the work of Adsera and Boix, has found that trade policy openness, the size of the public sector, and regime type are closely intertwined. We build on those findings by arguing that openness to trade and government spending should interact in important ways in influencing the prospects of democratic survival. Though our results are clearly preliminary in nature, they nonetheless suggest that democracies that are both open to trade and that have small public sectors are significantly more likely to fail than other democracies. If these results endure tougher scrutiny, then they point toward an important influence on the prospects for democratic consolidation.

9

Competitive clientalism: rethinking elections in the MENA and the prospects for democracy Ellen Lust-Okar

In Bahrain last year, citizens elected their own parliament for the first time in nearly three decades. Oman has extended the vote to all adult citizens; Qatar has a new constitution; Yemen has a multiparty political system; Kuwait has a directly elected national assembly; and Jordan held historic elections this summer. Recent surveys in Arab nations reveal broad support for political pluralism, the rule of law, and free speech. These are the stirrings of Middle Eastern democracy, and they carry the promise of greater change to come. President George W. Bush (Bush 2003) Policy-makers and scholars pin high hopes on the notion that elections foster democracy. In 2005 alone, the international community – led by the US – glorified the inauguration of “competitive” Egyptian presidential elections, the Lebanese parliamentary elections after the Syrian withdrawal, and the first-ever Saudi municipal elections. Even skeptics who dismiss elections in the region as windowdressing are nevertheless drawn to examining the relationship between elections and the potential for democracy (Ehteshami 1999; Lucas 2005; Brumberg 2002; Pripstein Posusney 2002). There is something compelling about the idea that elections represent a step toward democracy. Yet it is far from certain whether such elections, and the democracy-promotion programs supporting them, are catalysts for democratization. Some scholars hold that elections in authoritarian regimes are inherently contested and destabilizing, while others have suggested that these elections are largely meaningless and highly orchestrated facades, intended primarily to legitimize the authoritarian regime. Adjudicating between these competing perspectives requires a careful analysis of electoral politics under authoritarianism. This paper examines legislative elections,1 which tend to be the focus of such programs, in an attempt to shed critical light on the assumptions underlying democracy promotion programs. Based on data drawn from elections in the Middle East and North Africa, it argues that elections should be thought of as an arena for competition over access to state resources, or “competitive clientalism”. This competition drives the behavior of voters, candidates and ruling elites in systematic ways. Moreover, it allows ruling elites to manage elections largely through

Competitive clientalism 131 institutional mechanisms rather than repression, and tends to promote inherently pro-regime parliaments. This has significant implications for democracy-promotion programs. External support for elections, political parties and civil society may not be only ineffective in establishing democracy, but it can be counterproductive. In the absence of other liberal guarantees and a redistribution of political power, elections can reinforce authoritarian regimes, and the support for civil society and political parties can weaken pro-democratic forces. Only with a more complete understanding of the politics of authoritarianism can we understand how and when international forces may foster democratization. The chapter begins with an overview of the literature, arguing that the disagreement over the importance of elections lies, in part, in the fact that while elections as an event have received attention, the politics of these elections is largely unexplored. It then calls for re-thinking the conventional wisdom about the roles of these elections, abandoning the temptation to see authoritarian elections as simply early or incomplete forms of democratic ones. Rather, they are competitions over patronage in the absence of alternative government. This results in a very different form of electoral politics. The paper discusses the implications for voters’ and candidates’ behavior, focusing primarily on Jordanian politics. Finally, it concludes by discussing how reconsidering the politics of authoritarian elections should affect our expectations of electoral reform and democracy promotion.

Elections: catalysts for democratization? The view that elections are inherently contested underlies a great deal of scholarship, both on democratization inside and outside the region, as well as public policies aimed at democratization. Classic theorists in political science (for example, Robert Dahl, and Seymour Martin Lipset) and more recent discussions of democratization have put elections front and center in understanding transitions to democracy. The expectation is that elections provide a mechanism for “chipping away at authoritarian regimes” (Pripstein Posusney 2002), by pushing gradually for greater liberalization and democratization. It follows, then, that if elections are forced to be free and fair, and if political parties are strengthened, then the road to democracy can be traveled more quickly. Democracy-promotion programs, such as the Middle East Partnership Initiative (MEPI) and earlier programs through USAID, as well as those of a wide range of international foundations and organizations, are based on these premises, pouring millions of dollars annually into strengthening political parties and civil society and providing electoral observers. Even those who are more skeptical about the role elections play in democracy promotion do not view elections as a potential obstacle to democratization. For these scholars, elections are simply “window-dressing”, designed to enhance domestic or international legitimacy. Scholars working on the Middle East often hold this view, particularly as their optimism that the region may see democratization dissipated during the 1990s2 (i.e. Chourou 2002; Sadiki 2002). Scholars studying hybrid regimes (i.e. regimes that are neither “fully authoritarian” nor democratic;

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see Lindberg 2004; Lindberg 2005; Mozaffar and Schedler 2002; Schedler 2002a, 2002b; Hartlyn, McCoy and Mustillo 2003) also hold a more cynical view about the role of elections in the “full-blown” authoritarian regimes of the region (Levitsky and Way 2002a: 4). These scholars are skeptical that elections promote democracy, but they also do not entertain the notion that elections can actually hinder regime change. Yet, it is impossible to predict how successful current democratization programs will be, or to formulate more appropriate ones, without examining the relationship between elections and prospects for democracy. Democratization programs are based heavily upon assumptions that elections are inherently contested and destabilizing, but it is critical to determine when this is or is not the case. Indeed, to use a medical analogy,3 implementing such programs without understanding how authoritarianism “works” is akin to attempting to cure cancer without understanding how cancerous cells replicate. We must examine the politics of elections in the Middle East and North Africa (MENA) if we are to distinguish who wins and who loses through electoral politics and to determine when promoting elections will foster democracy. A closer look at the politics of elections in authoritarian regimes will also help to reconcile some important empirical anomalies. The view that elections are inherently destabilizing, and thus a basis for democratization, runs counter to evidence that authoritarian regimes in which elections are held endure longer than authoritarian regimes without elections (Gandhi and Przeworski 2001; Geddes 1999; Hadenius and Teorell 2005).4 These studies challenge both the view that elections are catalysts for democratization and the one that elections are meaningless facades; they suggest that elections may, indeed, play an important role, but one promoting rather than undermining the stability of authoritarian regimes. One may, of course, be tempted to explain the relationship between authoritarian elections and regime durability by arguing that the elections do, indeed, succeed in legitimizing the regime. However, a closer look at the evidence suggests that this argument is also flawed, at least insofar as it refers to “democratic legitimacy”, appeasing both domestic and international critics by giving the impression that the regime is moving toward democracy. Such a view would make it difficult to understand why candidates and voters invest in elections, or why they continue to believe that they are steps to democracy, particularly in regimes where elections have been held for decades and the authoritarian regime remains firmly entrenched. Yet, we find that they do invest enormous amounts of time, energy, and resources into the electoral process. Even in such repressive regimes as Ba’athist Syria and Iraq, candidates spend large amounts of time and money on campaigns. Moreover, as these cases remind us, elections have played an important role in authoritarian regimes long before the most recent “democratic wave”, and in many cases, they were introduced without any promise of democratization.

Competitive clientalism 133

The politics of authoritarian elections What role do elections play in authoritarian regimes, and how does this help us to understand the behavior of candidates, voters and regimes? Making sense of these empirical regularities, and determining the prospects for democratization programs, requires rethinking the roles and politics of MENA elections. A deeper understanding of authoritarian elections informs our understanding about the relationship between elections and regime stability, as well as the prospects for democratization. The role of elections Elections in authoritarian regimes are better thought of as competitions over access to state resources, or “competitive clientalism”, than as the hotly contested debates over democratization. There are important variations in the politics of elections, both across different regimes and in the same regimes over time. For instance, elections immediately following gestures of political liberalization – such as the reintroduction of multipartism or widespread announcements of ‘democratization’ – tend to have higher turnout than later elections within the same country. Furthermore, in some cases, elections may have greater implications for policymaking or elite turnover, as most recently demonstrated in the Palestinian elections, and this may also affect voting behavior. Yet, generally, we can best understand the behavior of voters, candidates and regime elites within the framework of “competitive clientalism”. In competitive clientalism, both voters and parliamentarians recognize that the policy-making capacities of parliament are extremely limited. Therefore, voters seek to elect a candidate who will help distribute state resources to them, and candidates vie with one another for the opportunity (frequently, quite lucrative as we will see), to be a conduit of patronage. Elections are not over policy platforms, political party identifications, or turnover in the political elites. Rather they are based, to a greater extent, on services provided and personal relationships. This affects not only voter, candidate and regime behavior, but also the likelihood that elections provide a catalyst for democratization. Voter behavior Voters believe the parliament’s role in developing legislation, particularly addressing critical national issues, is extremely limited. Thus, for instance, a public opinion poll conducted by the Center for Strategic Studies in 2004 found that only 7.3% of the Jordanian respondents believed that the parliament played a fundamental role in formulating legislation, while 28.29% believed that it played no role whatsoever.5 Similarly, a survey of Algerians found that less than one-third of respondents believed that the parliament played a significant role in policy-making.6 More anecdotal evidence suggests that similar views are held in Syria and Egypt (Shehata 2008; Lust-Okar 2005). In some cases, the legislators’ ability to draft laws is limited by the institutional rules. In Jordan and Syria, for instance, legislation is drafted in the government,

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which is formed independently from the parliament, and passed to the legislature for approval. In other cases, such as Egypt, drafting laws is within the parliament’s powers. Even in these cases, however, the representatives’ ability to pass legislation contrary to the regime elites’ wishes is limited. Through the use of emergency laws and other repressive measures, regime elites can threaten to disband parliament or use various means to hold individual representatives accountable. Thus, particularly on the most sensitive issues – sensitive domestic policies, economic policies, and foreign affairs – the parliament is limited. Not surprisingly, the 2006 survey found that Algerians view parliamentarians as more able to affect policies related to social affairs than those related to domestic political, economic or foreign affairs.7 At the same time, voters tend to see parliamentarians as capable of delivering services. Rather colorfully, a lower-level election worker explained the views of those living in the poorer sections of an Egyptian village: Those people consider the Parliamentarian (the MP) a God – able to deliver all of the personal services and favors they want. … with a magic wand. (Shehata 2008: 112) Parliamentarians can use their ability to make statements in the legislature and their access to the press to put pressure on ministers and bureaucrats to give jobs, licenses, and other state resources to their constituents, by “threatening state institutions of scandalizing them in parliament if they did not react positively to their requests” (Kilani and Sakijha 2002: 58). To a lesser extent, they also have resources available within parliament (e.g. position as support staff, personal discretionary budgets) that they can distribute to constituents in return for their support. Not surprisingly, parliamentarians are often called “na`ib khidma” (or “service deputy”) in reference to their role in providing services, rather than legislation or executive oversight. The importance of providing such services should not be underestimated. Given the weak rule of law across the region, finding one who can serve as a mediator (or wasta) between the citizen and the state can be key to entering university, obtaining government licenses, public housing, employment and a obtaining a broad range of other state resources. In most cases, these factors – which are intimately connected to their ability simply to make it through another day – are citizens’ most salient concerns.8 Moreover, citizens recognize the importance of wasta. In Algeria, for instance, only 59% of survey respondents said that they would first take the issue to the government agency if they wanted to resolve a dispute with the government, and only 24% believed that this approach would be most effective. Even more strikingly, only 39% believed that if they wanted to seek employment in the public sector they would first approach the agency, and less than 20% believed that this was the most effective approach.9 Similar results are found in Jordan, where surveys conducted in 2000 and 2005 both found that the majority of respondents believe that they need wasta in order to succeed in conducting business with government agencies or obtain public sector employment.10 More anecdotal evidence from

Competitive clientalism 135 Egypt, Iraq, Lebanon, Morocco, the Palestinian Authority, and Syria suggests that this phenomenon is widespread.11 Citizens do not see parliamentarians as the only possible source of wasta; they also call on friends and family members, religious leaders, and other intermediaries to navigate through bureaucracies and maintain their survival. Yet, they do see the parliamentarians’ major role as providing services, not making policy or holding the government accountable. As Sa’eda Kilani and Basam Sakijha (2002: 58) conclude: parliament, whose main task is to monitor government’s performance and legislate laws, is gradually becoming the haven for Wasta practices. Voluntarily or out of social pressure, parliamentarians’ role in mediating, or, in other words, using Wasta between the citizen and the state is … becoming their main task. Similarly, Samer Shehata records an interview with the one of the leading figures12 in Egypt’s ruling National Democratic Party, Ahmed Ezz, who declared: What voters care about is: (1) How are you negotiating with government to get us the services before others – other areas – get them and (2) personal relationships: Do they see you enough? Do you attend weddings and funerals? Are you in the district and visible, shaking people’s hands? If you are rich, are you philanthropic? (Shehata 2008: 112) Put slightly differently, voters seek to elect individuals who are sufficiently connected to the state that they can deliver services. Thus the 2006 Algerian survey found that 64.2% of respondents cast their ballots for the “helpful candidate”, as opposed to only 5.8% who do so for the “candidate with a good program”.13 Similarly, a 2003 survey by the Center for Strategic Studies (CSS) found that more than two-thirds of Jordanian respondents voted for candidates who “work effectively with government”.14 Voters also want to ensure, however, that the parliamentarians will deliver the services to them, not others. In many cases, given the importance of kinship ties, voters prefer candidates who are from their own family or tribe. Thus the Jordanian CSS survey in 2003 found that more than one-third of voters cast their ballots for a candidate who was a member of their tribe or family, and almost half (49%) voted for a candidate with whom they had close personal ties. In other cases, emphases are placed on whether or not the candidate is a committed “son of the community” (ibn al-balad).15 The meaning is the same, however: voters are concerned about electing parliamentarians who can deliver services, and will deliver the services to them. Voting for services is not unique to authoritarian regimes, but the extent to which it overshadows concerns of ideology, policy-making and elite turnover may be. Recognizing the limited role that parliaments play in policy-making, and

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even more so in replacing the existing elites, voters pay little attention to political parties and party platforms. When asked if they considered party membership when choosing their candidate in the 2003 Jordanian elections, only 13.38% of respondents stated that they supported their candidate, in part, because he/she was in the Islamic Action Front (the major Islamist party in Jordan), and only 6.27% supported their candidate because he/she was a member of another political party.16 For the vast majority of Jordanians, party membership was not an issue. Perhaps even more surprising is the extent to which party membership and platforms are insignificant factors determining voting in dominant-party states. As noted previously, only 5.8% of Algerian respondents stated that they cast their ballots for candidates with “a good program”. Similarly, in a detailed study of Fatah infighting during the 2005 municipal elections, Dag Tuastad (2008) demonstrates how Fatah leaders recognized that it was credible commitment to service provision, not party platforms, that would determine their success or failure in the elections, and Samer Shehata (2008) shows similar dynamics in Egypt. Understanding authoritarian elections as “competitive clientalism” not only yields insight into whom voters elect, but also into which citizens choose to go to the polls. It is important to note that voting in parliamentary elections of authoritarian regimes is not compulsory. Indeed, as Table 9.1 shows, turnout in the latest parliamentary elections ranged from a low of 23% in Egypt to nearly 90% in Tunisia. Moreover, there is also great variation across districts, with some registering turnout rates as low as 7% (LCPS 2003: 15). Individuals will abstain from voting when they believe there is nothing to gain from participating in elections. Given the authoritarian nature of the regimes and limited role of legislatures, some believe that voting simply is not relevant. Asked why they do not vote, they say that “elections are not useful in this political system”, or “elections are a fraud”.17 Not surprisingly, election turnout in the

Table 9.1 Turnout in Recent Parliamentary Elections Country

Year of Elections Turnout (% of Registered Voters)

Algeria Bahrain Egypt Jordan Kuwait Lebanon

2002 2002 2005 2003 2006 2005

Morocco Palestinian Authority Syria Tunisia

2002 2006 2003 2004

46.2 52 23 58.8 80 28, 43 and 55 in 1st, 2nd, and 3rd rounds, respectively. 51.6 77.7 63.5 86.4

Source: Lebanese Center for Policy Studies, “Decentralization, Democratization and Local Governance in the Arab Region”, Beirut, November 2003: 15.

Competitive clientalism 137 early elections following announcements of liberalization or the reintroduction of multipartism tends to be higher than subsequent elections. Across the region, voter turnout tends to decline over time. Citizens are also less likely to vote if they believe their candidates cannot deliver services. Consequently, in Jordan, citizens of Palestinian origin, who have historically had tense relations with the regime, are less likely to vote than those of Transjordanian origin, who have traditionally had closer relations with the regime (Lust-Okar 2006). In Iran, also those from outside the government have lower voter turnout (Tezcür 2008). Voters, believing that their candidates can deliver neither wasta nor policies, prefer to stay home. Citizens are also more likely to abstain from voting if they believe their representative may be able to provide wasta, but is not likely to do so for them. Consequently, turnout in rural areas tends to be higher than that in urban areas. This pattern is found in Lebanese elections prior to the civil war (Harik 1980: 158–159), and more recently in the Iranian, Egyptian, and Jordanian parliamentary elections (Tezcür 2008: Lust-Okar and Masoud in progress; Lust-Okar 2006). This stands in contrast to some of the common wisdom, which suggests that voters will use elections to push for greater democratization; here more conservative voters are likely to go to the polls, reinforcing, rather than undermining, the regime. Candidate behavior The logic of competitive clientalism also affects which elites choose to enter the race, as well as how they run their campaigns. Individuals who either have, or can anticipate developing, close relations with the state are the most likely to enter the race, while those who are most opposed to the regime will abstain. Moreover, elites will tend to campaign as independents, where possible, and emphasize their personal relations and service provisions. Party platforms and hotly debated policy issues seldom enter campaigns. As Samer Shehata (2008: 100) nicely puts it, campaigns are “serious business”. Campaigns are generally an enormous investment, usually financed from the individual’s own personal accounts. In Egypt, “although the legal limit regarding campaign spending is 70,000 LE (approximately $12,300 US dollars) – already a tremendous sum in a country where the average GNP per capita is less than 9,000 LE per year (approximately $1,500 US dollars) – some spend millions of pounds trying to get elected.” This is true elsewhere as well. My own fieldwork in Jordan found that candidates generally raised the finances of their own campaigns, often drawing enormously on their own personal funds and, similarly, that candidates and observers generally agree that candidates spend many times an average annual salary to run in campaigns. To understand what makes candidates invest so heavily in elections, we return to the logic of competitive clientalism. To some extent, candidates are motivated by the same factors which motivate elites to enter democratic elections: the prestige and glamour of being a parliamentarian, the hope that they can contribute to public welfare, and the possibility that this becomes a stepping stone for higher positions.

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Perhaps more importantly, however, candidates are motivated by the possibility of obtaining greater access to state resources. They vie with one another not only to obtain a position as a wasta between citizens and the state, but also to obtain a position that potentially grants privileged access to state resources. They can use the access to the state to facilitate business not only for their constituents, but for themselves as well. Thus, for instance, a factory owner may use his connections with the ministries to bypass import duties or to obtain large public contracts. In addition, in most cases parliamentarians are granted immunity, and while this is sometimes violated, it is nevertheless quite lucrative. Samer Shehata’s description of this mechanism in Egypt is worth quoting at length: Many in Egypt, however, believe that the reason people are willing to spend millions of pounds running for parliament is because membership in the chamber provides legal immunity (hasana) which can be extremely rewarding financially.18 The immunity that parliamentarians receive, in fact, can only be lifted by the People’s Assembly itself. And it sometimes is.19 Immunity from prosecution, it is said, allows some parliamentarians to engage in all sorts of extralegal and sometimes illegal practices and business ventures, making significant sums of money in the process. In addition, membership in the People’s Assembly, it is believed, opens up all sorts of other opportunities for pecuniary gain (e.g. selling favors, including jobs, licenses, access to government land at below market price). According to this logic, the money that candidates spend getting elected is recovered through the benefits of holding office; the money spent on political campaigns, at least in part, becomes a business expense. (Shehata, 2008: 102) Understanding elections as a business investment in a competition to serve as an intermediary, with close ties to the state, yields insights into who runs in elections. Elites who are most opposed to the regime are also most unlikely to enter the race. This is partly because they see running in elections as legitimizing and supporting a non-democratic regime. They are also often aware, however, that they are likely to lose if they choose to run. Voters are unlikely to elect candidates whom they perceive as unable to work with the government (Lust-Okar 2006). Running in elections is both ideologically distasteful and a poor investment for those most opposed to the regime. Rather, elites enter the race when they believe they can win, or at least when they can raise their social prestige through their candidacy. Consequently, a Jordanian survey of candidates found they entered the race at the encouragement of family, friends, and the tribe; in contrast, political parties and government officials were much less important (Lust-Okar 2008.) Moreover, when election laws do not require party lists, candidates are more likely to run as independents – deemphasizing their party affiliations. Recent elections in Palestine and Egypt, where a large number of Fatah and NDP members ran as independents, demonstrate the extent to which service provision and individual connections dominate party affiliation and platforms in elections.

Competitive clientalism 139 Candidates also emphasize their ability to deliver services and their willingness to do so. In Jordan, candidates are more likely to discuss their tribal ties and family relations than their political platforms. Similarly, in Egypt, even candidates who are committed to discussing the legislative and oversight roles of the parliament recognize that services, not legislative records, interest voters (Shehata 2008). Elections can be expensive enterprises, but they also have relatively low barriers to entry. Political parties remain weak and unable to play an important role in coordinating among potential candidates. Rather, elites need to expect that their personal supporters are enough to achieve victory, and in races with large numbers of candidates, individuals with a relatively small number of supporters can win the race. In Jordan, on average, seven to eight candidates have contested each seat in the four elections since 1989 (Hourani et al. 2004: 198). This rate remained high (and the parties continued to be weak) despite changes toward a more majoritarian electoral law. In Iran, with more than 5000 candidates campaigning for 290 seats in the 2000 parliamentary elections (Esfandiari 2002: 124), and in Egypt, 5133 candidates ran for the 444 parliamentary seats (Shehata 2008: 101). Regime elites Regime elites can manage elections over access to patronage with relative ease. Elections are not primarily over democratization, and the logic driving both voters’ and candidates’ behaviors results in parliaments that reinforce the regime. Moreover, given the logic of competitive clientalism, ruling elites can shape elections through institutional mechanisms, rather than relying primarily on repression. Using districting, ruling elites can funnel resources (and parliamentary seats) to the districts which contain traditional supporters of the regime. Thus, in Jordan, we find that the monarchy created districts which disproportionately favored areas of predominantly East Bank Jordanians (Lust-Okar 2006; Lust-Okar forthcoming.) Similarly, the 2000 electoral law governing Lebanese elections under Syrian influence was “mainly to ensure that Syria’s supporters would reach Parliament, irrespective of their religion” (Haidar 2005). Anecdotal evidence suggests that Saddam Hussein’s regime in Iraq engaged in similar manipulation. Through districting, the government pushed seats, and the opportunity to gain access to state resources, toward supporters of the regime. Ruling elites also use electoral rules to shape outcomes. In Jordan, the palace clipped the wings of the IAF by decreeing a one-person, one-vote clause in the electoral law in 1993. The law reduced the number of votes per person from the number of seats in the district to a single vote, favoring conservative forces over the opposition. The ruling ANAP party in Turkey used similar reforms to enhance its power (Turan 1994: 52–57). Even in Egypt, where the Supreme Court has a degree of latitude and has ruled in favor of opposition parties challenging electoral laws, regime elites have managed to draft new legislation which essentially maintains the ruling NDP’s dominance. The precise rules, and resulting distribution of power among parliamentary forces, may vary across authoritarian regimes. Indeed, monarchies are more likely to prefer rules that lead to the fragmentation of power,

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while dominant party states seek to maintain the ruling party’s dominance (LustOkar and Jamal 2002). In both cases, however, competitive clientalism gives voters and candidates rational incentives, which makes it possible for ruling elites to use election laws to manage outcomes. Despite these important differences, the fundamental lesson remains: in the absence of fiscal or political crises, state elites are able to rely primarily on electoral institutions to shape electoral outcomes. When this appears to fail – as happened in the 2005 Egyptian elections – ruling elites can turn to repression. Amr Hamzawy and Nathan Brown (2005) explain how Egypt had to: … resort to clumsy tools to guarantee such a result [continued NDP dominance]. Independents who had defeated NDP candidates were rushed into the party. In districts where opposition candidates were strong, police were used to surround polling stations to prevent voters from reaching the polls. Journalists covering voting were physically attacked. Supervising judges who publicly criticized official behavior were threatened with prosecution, while the perpetrators of violence were allowed to act unimpeded. The result was something of a schizophrenic election: The campaign itself saw freer discussion and media coverage, limited but real willingness to accept some domestic monitoring, discrete arrangements for international observers, and the creation of at least the form of an independent election omission. But as the extent of the Brotherhood’s strength became clear, the gloves came off. By that time, only the crudest of tools were left to produce the regime’s desired outcome. Far more thuggery and manipulation were necessary than was healthy to protect the regime’s reputation. Such occasions are striking, however, precisely because they are rare. The experiences of Iran, Jordan, and Syria are much more common: fraud, repression and regime intervention in elections exist, but on a limited scale (Lust-Okar 2006; Esfandiari 2003). Ruling elites predominantly manage electoral outcomes through institutions and the logic of competitive clientalism, which is inherently biased toward returning conservative, pro-regime parliaments.

Implications for democratization Through a closer look at the mechanisms of elections, it becomes clear that apparently contradictory expectations about the relationship between elections and political stability may be easily reconciled. The limited space for policy-making in authoritarian regimes means that elections are more frequently contests over access to state resources than debates over policy. Voters recognize this, casting their ballots for those who can best deliver. Parliamentarians know this as well, seeking to meet constituents’ needs rather than to shake their relations with government. The result of such a situation is that parties are undermined, voters become cynical, and demands for democratization (as well as support for the forces intending to push for it) are frustrated.

Competitive clientalism 141 Practicing elections in the absence of an alternative elite or significant legislative powers fosters public disillusionment with democratic institutions and weakens political parties. Opposition elites who do run in authoritarian elections are often delegitimized, seen as accepting (and benefiting from) the system. More generally, parliamentarians, unable to make policy, become part of the patronage network, providing selective benefits. Not surprisingly, we then find that the majority of citizens view parties as ineffective, personalistic cliques, unable to field effective candidates or influence government. For instance, less than one-fifth of Jordanians believed their parties had been somewhat or very successful from 1992 (when Jordanian parties were legalized) until 2004. Moreover, the survey found that 84% of respondents believed that no parties were capable of forming government in Jordan, while less than 5% of respondents named a party they believed capable of forming the government (CSS 2004).20 Similar attitudes were expressed in Morocco, where the palace – recognizing the crises of weak parties in the 1990s – sought to shore up the opposition parties (Lust-Okar 2005a). Parties fare somewhat better in dominant party states, but even there, there is widespread public skepticism over parties’ effectiveness. Only 5.5% of respondents in a 2006 Algerian survey believed political parties were “very successful”, while 49.6% viewed them as somewhat successful and 36.9% saw them as not very successful (Benstead and Lust-Okar 2006). A survey conducted by Al-Ahram in Egypt asking about the importance of political parties (rather than their success) found slightly different results, with 54.5% viewing them as important and 24.5% somewhat important. Even here, however, 21% of respondents believed that parties in a state dominated by the ruling NDP party believed that political parties were not important (Al-Ahram 2000a). Parties are generally seen as representing personal interests and politics rather than ideological stances, policy-oriented platforms, and constituents’ interests. Less than one-fifth of Algerians surveyed in 2006 believed that the parties served the people’s interests, as compared to 79% who believed that they served the leader’s interests (Benstead and Lust-Okar 2006). Similarly, the 2004 CSS survey found that only 12.8% of Jordanian respondents believed that parties served the people’s interests, versus 49.1% who believed they served the party leaders and 35.3% who did not know. Consequently, the vast majorities of these citizens do not take political party activism seriously. In Jordan, the 2004 CSS survey found that only 1.3% of respondents were or planned to become a member of a political party.21 Two different al-Ahram surveys conducted in 2000 found that only 4.7% and 5.4% of respondents claimed to be members of a political party, a surprisingly low number given the role of the NDP (al-Ahram 2000a; al-Ahram 2000b). The result of limited party allegiance is that weak parties tend to splinter into even weaker off-shoots. Political party activists recognize that in the vast majority of cases, voters cast their ballots based on the candidate, not the candidate’s party label. Thus, when parties face internal strife, individual members find it easy to leave and form a new party. The costs are low, since the party label is of little value and most parties have minimal funding, and leaving allows them greater control

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over limited resources. The exception to this rule appears to be Islamist parties, which is likely a testimony to the fact that these parties do control significant resources and that on social policies, which they represent, they can influence policy. More frequently, however, weak parties become even less effective through a series of splits and splinters (Lust-Okar 2001.) Parliament is also weakened. As discussed previously, most recognize the limited powers of parliaments in authoritarian regimes. Thus, for instance, a survey of Jordanian elites conducted in 2005 found that fewer than 15 of the 300 respondents surveyed believed parliament was capable of solving problems of unemployment, poverty, corruption and inflation (Lust-Okar 2006). Satisfaction of the general public is only slightly higher, with 6.3% of Jordanians surveyed in 2004 very satisfied, 31.9% slightly satisfied, and more than 50% of Jordanians were dissatisfied with the parliament’s performance. Like the elites, less than one-quarter of Jordanian respondents believed the parliament was capable of solving the major problems of unemployment, poverty, corruption, and inflation (CSS 2004). Algerians reflect similar skepticism, with nearly two-thirds (64%) believing the parliament does not have significant power, and only 15% expressing a lot of confidence in the parliament (Benstead and Lust-Okar 2006). Low incumbency rates also weaken the parliaments. Turnover rates of parliamentarians are typically more than 50 percent. For example, Günes Murat Tezcür notes that only 105 incumbents retained their seats in the second parliament in 1984, 66 in the third parliament in 1988, 83 in the fourth parliament in 1992, and less than 60 in the sixth parliament in 2000 (Kayhan, cited in Tezcür 2008: 58). In Jordan, only nineteen of the 110 members elected in 2003 returned from the 1997 parliament, and only twenty of the deputies who won in 1997 elections were returning from the 1993 parliament (Hourani 1998: 204). The turnover is the outcome of weak parties, high candidate entry rates, and patronage-based voting. It is much easier for candidates to promise (or voters to expect) that they will receive selective benefits from their parliamentarian than it is for the MP to distribute selective benefits to all of his constituents. This is coupled with the large numbers of candidates, and subsequently the high numbers of wasted votes. In fact, more than 60% of the ballots in Jordan’s 2003 parliamentary elections were cast for candidates who failed to win seats. The results are high turnovers and weak parliaments. In short, in contrast to the conventional wisdom that elections will gradually undermine authoritarianism, a careful study of politics in these elections suggests that they can easily help to shore up the regime. If elites can control enough resources to distribute, MPs and their supporters become increasingly invested in using parliament as an arena of patronage distribution, not for promoting democracy or producing legislation. There is a self-selection of candidates who are only moderately opposed or supportive of the regime. Indeed, for many parliamentarians, a move away from patronage functions and toward policy-making roles could only serve to weaken their influence. Elections may, in the face of a precipitous decline in state resources or extraordinary political crises, provide a focal point around

Competitive clientalism 143 which opposition forces may rally. Yet, the notion that elections help to undermine the regime, particularly in the absence of such crises, is likely misled.

Rethinking democracy promotion How, then, can we understand the prospects for democratization? How do we understand domestic debates over electoral reform, and the possibilities of change? More importantly, how can we assess the prospects of international attempts to promote democracy? Domestic debates over reform Debates over reform should be seen within this context. They are not insignificant: the Jordanian palace’s own promises of liberalization and talk of democratization open the way for a continued dialogue and debate over how far a country is (or is not) proceeding on the path of democracy. It sets democracy as an ideal to be obtained, a standard against which they can measure. Yet, there is a large set of political actors, increasingly using parliament as an arena of patronage distribution, for whom democracy and policy-making is not a priority. Indeed, for many of them a move away from patronage functions and toward policy-making roles could only serve to weaken their influence. The most recent debates over electoral reform in Jordan illustrate this well. On one side are the political parties, which have vocally opposed the electoral law since it was changed in 1993. Indeed, it is the ability to do so – through conferences, books, speeches and editorials – that is the change in liberalization. These parties are led by the IAF, who has clearly lost the most in the changed law. (Other parties are a bit more ambivalent. They dislike the law, but also some have appreciated the extent to which it minimizes the IAF’s influence.) On the other side, somewhat less vocal, have been those who have benefited from this change. For the first time, mostly opposition parties have come together – with the encouragement of the Prime Minister – to draft an electoral law. The law is important for two reasons: first, the parties demonstrate a clear understanding that the ability of the parties to become stronger is closely tied to both electoral and party laws. Thus, the committees have drafted both laws and vetted them at conferences. At the same time, a controversy over the debates over reform has emerged: politicians outside of the parties are calling for the “widening” of the debate, i.e. some call for including those who are not interested in strengthening political parties more fully into debates over political reform. Some argue that the patronage-based nature of parliament is driving this debate, as well as a discussion by the palace over decentralization. Put simply, the parliament has become increasingly demanding and expensive – putting a strain on the government itself. The cost of a conciliatory parliament more interested in providing wasta and obtaining resources than making policy or pushing for democratization, is rising. In the attempt to reduce these demands, the government is opening the door for much weakened political parties (who are

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not only fragmented but have little public support) to debate openly the need to strengthen parliament. Yet, elections may sometimes escalate tensions, create space, and bring an added push for democracy. This may be the case when the need for patronage and wasta declines, particularly with the development of a private sector. Not surprisingly, then, we understand the long-recognized relationship between capitalism and democracy. It may also be the case when state resources decline, making parliament an ineffective mechanism for wasta and patronage, even though alternative means do not exist. This is consistent with the relationship between economic crises and democratization. Ironically, it is unlikely to be brought about simply through institutional rules intended to strengthen parties – either through electoral laws or political party laws. Until parliament is a mechanism for policy-making, not for patronage distribution, parties will remain weak and democracy thwarted. International democracy promotion efforts Indeed, the logic of authoritarian elections should lead us to question the value of pressing for, and applauding, the introduction of elections in authoritarian regimes. The excitement over the introduction of municipal elections in Saudi Arabia, for instance, may be misplaced. Such elections are more likely to help sustain the authoritarian regime than they are to promote democracy, helping to weaken political opponents and parties by fostering personalistic cliques rather than policy-oriented programs. International aid programs intended to strengthen political parties in authoritarian regimes are also unlikely to be successful. Attempting to strengthen parties by giving them access to foreign funding may only exacerbate this problem. Funding funneled to parties and related organizations in civil society may work simply to supply these elites with a second source of patronage. They can use this to gain support, but it does not change the fundamental nature of the parties, the strength (or weakness) of the legislature, or the types of voting. More importantly, such funding exacerbates the divisions between the “haves” and the “have-nots”, links party elites with the West, and it delegitimizes the very parties that it is intended to support. This is especially true in the MENA, where the vast majority of the public is skeptical of the intentions of the West, generally, and of the US, in particular. In short, there are important reasons to believe that policies aimed at strengthening political and civil society create more problems than they solve. Finally, the analysis also suggests that electoral observers will be less important in changing the balance of power in authoritarian regimes than is often supposed. There is fraud in authoritarian elections, but it is seldom responsible for the incumbents’ victory. It is only when the state elites’ resources decline, making it difficult to maintain the distribution of patronage, that elections are likely to become highly contested battles over the rules of the game. In this case, electoral observers may play an important role in promoting democracy. Where this is not the case, however, electoral observers are not likely to change the outcome. If elections are to promote democracy, external pressure should be placed

Competitive clientalism 145 more on pressing for independent economic opportunities, expanding legislative powers, and reducing resources available to state elites in the center of power. Elections are more likely to escalate tensions, create space, and bring an added push for democracy when their role in distributing patronage and wasta declines. This will accompany the development of an autonomous private sector, which will reduce demands for wasta.22 This is, of course, fully consistent with the longrecognized relationship between capitalism and democracy. It may also be the case when the state elites’ ability to distribute patronage declines, making parliament an ineffective mechanism for wasta and patronage, even if alternative means do not exist. This is consistent with the relationship between economic crises and democratization. Until state elites’ monopoly on rents is limited, a real alternative in power is possible, and parliament is a mechanism for policy-making (and not for patronage distribution), parties will remain weak and democracy thwarted. The author wishes to thank the United States Institute of Peace and the MacMillan Center for International and Area Studies for their support of this project, as well as helpful comments from participants at the PEGS Conference on Democracy and Globalization, University of Maryland, April 2006.

10 Liberal autonomy and global democracy Anthony J. Langlois

In this paper, I engage with an argument made by Carol C. Gould about the normative basis of universal values in her recent book Globalizing Democracy and Human Rights (Gould: 2004). Of particular interest is the way Gould’s argument illustrates the tensions between democracy and liberalism – or, as I have put it in the title, between liberal autonomy and global democracy. To this end, Gould argues that in our thinking about human rights we need to invoke a new form of universality: one which is not so biased towards the West, one which avoids the essentialism of traditional liberal theory, one which is concrete and not abstract. Gould’s work represents an impressive defense of human rights and democracy; but she argues that these must be defended by moving away from some of liberalism’s more traditional intellectual strategies and by being more open to the other sources which claims of global democracy seem to imply. Gould wishes to defend both democracy and liberalism, but seeks to do so by using intellectual strategies which are more dialectical than those of traditional liberalism, and which emphasize social and community-oriented perspectives. How can we have global democracy, after all, when we only allow it to be intellectually structured and justified using essentialist ideas from the heartland of traditional western liberalism? I intend, then, to engage with Gould over some aspects of her suggestions in this regard. In the end, I will be critical of the way in which Gould has articulated a harmonization of these tensions – especially regarding her suggestion that a concept of concrete universality can serve to move us away from our dependence on the essentialist abstract universalism of the liberal tradition. I will go on to suggest that a less apparently other-inclusive approach to questions about the alleged cultural myopia of much Western theorizing about democracy and human rights in the end provides a more satisfactory basis for the preservation of human rights standards – which is both Gould’s goal and my own. Carol Gould divides her book Globalizing Democracy and Human Rights into a number of different sections (I will refer to the text by bracketed page numbers). These range from (at the beginning) theoretical considerations through to (at the end) what Gould calls current applications. My concern will principally be with the theoretical considerations of her opening chapters. In particular, I wish to deal with the chapter entitled “Two concepts of Universality and the Problem of

Liberal autonomy and global democracy 147 Cultural Relativism”. This is of particular interest because of her claim that she presents a theoretical perspective which will enable us to make significantly more headway with the tensions that are generated when, in a globalizing world, different ways of understanding what the universal human condition is interact with one another. The exercise of democracy and the protection of human rights depends on a certain set of cultural constructions, which centrally include those of liberal autonomy (Appiah 2005; Sher 1997). However, recently it has been a concern of a great many theorists that this liberal autonomy represents an unduly narrow, western, essentialist, and abstract outlook which, rather than helping the spread of democracy and human rights, actually hinders it. In this view, democracy and human rights become suspect to the degree that they are thought to be western, or exclusively western, concepts; in some cases, they appear to be suspect merely because of their historical connections with the West, regardless of their capacity to be justified independently, i.e. rather than being recognized as good ideas, whatever their geographical and historical provenance. It is certainly the case that when the practices of democracy or human rights are seen to be politically and imperialistically western, they are repudiated by those who are seeking either independence from the West, or by those who simply want to advocate a more genuinely universal moral ethic for a global world (Langlois 2001). One question that is raised by all of this, however, is to what extent the politics of extending democracy and human rights in a global world has become confused with accurate conceptual understandings of democracy and human rights. The claim often seems to be, as noted, that liberal autonomy is a western artifact, and that because of this it is not and cannot be welcome in many other places.1 Reinterpretations of democracy and human rights are then put forward which purport not to depend on this artifact in quite the same way, and these are said to be more acceptable because they are more universalist – that is, they are thought to be less dependent on the intellectual and political traditions of the West, to the exclusion of others. However, I contend that any account of democracy or human rights is going to need a strong account of liberal autonomy in it somewhere, whether it is implicit or explicit. Moreover, so I shall argue, for such an account of liberal autonomy to be successful, its justification is going to involve abstract, essentialist, and universal claims. I think we need not be apologetic about this; nor need we attempt to construct theoretical approaches which downplay the role of liberal autonomy in the belief that this will either make them more universalist or more acceptable in a global world. It is, however, this strategy that Gould follows in Chapter 2 of her book. I shall argue my case against this strategy by examining her articulation of it, and by showing why I think it fails to meet her objectives for it. This, in turn, helps us to see why the strategy itself is inadequate as a means of promoting and supporting democracy and human rights in a global world. I will begin, then, by setting out the two concepts of universality which Gould uses as the basis for her argument. Gould speaks of these two forms of universality as abstract universality and concrete universality (initially developed in Gould

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1976). She commences by arguing that her account of concrete universalism gets us closer to the “universally human” than traditional forms of abstract universalism, and that the latter is rightly critiqued for importing western liberal norms of development and rights into societies and cultures where they are not appropriate. I shall then argue, however, that, on the one hand, her distinction between concrete and universal universalism does not do the work she wants it to do; and that, on the other hand, the preservation and promotion of democracy and human rights requires us to defend liberal rights, and that these in turn are justified by a strong concept of autonomy which unavoidably makes essentialist claims about what it is to be human – claims which, I argue, Gould’s account implies even as she uses it to argue against them.

Abstract universalism In Gould’s account, abstract universality is the more traditional way of thinking of universality within the western political traditions. For the sake of her argument, she associates abstract universalism with two thinkers in particular – Martha Nussbaum and Amartya Sen (see Nussbaum 1995, 1999; Sen 1999, 2002). Gould argues that one of the key characteristics of abstract universalism is that it is essentialist (p. 51) (see also Gould 1988). Such approaches typically prescribe a list of characteristics that are shared by human beings – it is these characteristics which are said to determine what it means to be truly human. Gould maintains that such approaches remain vulnerable at the point of critique that has been brought against them by a range of different theorists (feminists, class and race theorists, Marxists, and so on), i.e. that these lists of characteristics tend to reflect values, interests, biases, power relations and the prejudices of those in a position to create such lists and make them stick. Importantly, Gould makes the following observation: “These criticisms are even more telling … when such essentialist conceptions are put forward as a basis for development and for human rights, because they may import Western liberal conceptions of norms of development and rights under the guise of the universally human” (p. 51). Gould argues strongly against cultural relativism, with which she has no truck. She says, for example, that “there is a normative limit to cultural difference: Pernicious differences – those that violate basic human rights – cannot be claimed as a matter of cultural right” (p. 155). But she expresses strong doubts, also, as to whether abstract universalism, with its avowedly essentialist agenda, is the best way to counteract relativism. Gould quotes Nussbaum, who says in her characteristically forthright manner: “My proposal is frankly universalist and ‘essentialist’. That is, it asks us to focus on what is common to all, rather than on differences … and to see some capabilities and functions as more central, more at the core of human life, than others” (p. 54). Gould is not convinced that Nussbaum’s lists of key human capabilities, or any other similar attempt to divine our true humanity, is appropriate. This universalist and essentialist approach to counteracting cultural relativism, is, ironically, too culturally relativist itself. Gould says, “Somehow, such lists or

Liberal autonomy and global democracy 149 specifications of the essential … inevitably strike us as culturally biased in an important way, if not ideologically one-sided or distorted ….” (p. 56). Gould is concerned, in particular, with two aspects of the content of abstract universalism. The first is its claim to study the human qua human: the criterion of universalism is that which is common to all human beings – that which is shared between individuals, groups, and societies; that which is shared over the course of history. The second follows from this, and is that this focusing on what is common means that we are abstracting from our differences, and leaving the things that differentiate us from one another as unimportant adjuncts to what it is to be really human. Gould argues that in strong formulations of the human qua human thesis, “it would follow that … all historical and social differentiation drops out and only those abstracted properties that remain invariant for all humans and all societies count as essential. These characteristics are seen as fixed instead as of historically changing” (pp. 56–7). The universalism that is adduced using these techniques is then proffered as neutral or objective – these being generally accepted (misguidedly) as corollaries of any kind of universalism. However, the lists of essential human properties so generated, once placed under the eye of critique, turn out not to be neutral in the sense of being value free at all; they are, rather, value laden – only this value ladenness is hidden by the process of abstraction and the claim to universal status. The values which are held by such human qua human projects inevitably, in Gould’s view, reflect the interests, biases, and power relations of the particular group who are advocating that project. Gould is not, so I understand, against people having values-based projects which they advocate within society; rather, she is against a particular intellectual technique for the justification of those projects which has, as its consequence, the projection of a minority conclusion as if it were a universal truth; the advocacy of a particularist interest as if it was the good of all. For Gould, abstract universalism is a deception, and therefore is to be argued against. To summarize, abstract universalism is essentialist and ahistorical; it is about the commonalities shared among all humans across space and time, about the human qua human. In evaluation, Gould argues that it falls foul of the now traditional arguments against essentialism; it fails because it ignores those things which differentiate us as human beings. Key here is its failure to take into account the ironically essential point of the importance of historical change. Finally, “essentialism tends to mask the particular interests under the guise of universality and therefore is deceptive” (p. 57). I will return to a number of these points when I give my reading of Gould’s alternative to abstract universalism, her concrete universalism. I shall continue, however, with a general explication and exegesis of her account of this alternative kind of universalism.

Concrete universalism In introducing her notion of concrete universality, Gould starts from the point mentioned above regarding the importance of our interactions and inter-relations

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in society. The abstraction of the human qua human, she noted, takes us away from the stuff of our lives as they are lived. Gould wants to formulate a universalism that is fully engaged with this “stuff”. To help conceptualize this she coins two terms: cosmopolitan association and intersociation (p. 62). Gould argues that these terms represent a new view of society based on a model of networks of relationships. This model is illustrated on the one hand by reference to the internet, and on the other by reference to globalization. She argues that this intersociation is a form of universalization – certainly, in economic, environmental, and communications domains. “The idea of a shared world”, she says, “comes to have a global interpretation, where previously it may have had more local ones” (p. 62). The idea of One World comes to have a meaning along the lines of a framework of reference or “horizon of interaction”. As individuals, people become more universalised and less localized – although Gould is reluctant to embrace the idea of a world citizen as it is often associated with cosmopolitanism. This is because the citizen of the world is also a citizen of no particular place, as the account often goes, whereas Gould see her world citizens as being rooted in one or perhaps two places (cultures and societies), while being receptive to the influence of many more (cf. Anderson-Gold 2001). The key conceptual difference between Gould’s concrete and Nussbaum et al.’s abstract universalism, which Gould wishes to emphasize, is the distinctive social ontology that lies behind her concept. Social interaction is not, on this account, just one of many aspects of what it is to be human, but it is the frame for our humanity. Affiliation, Gould says, is only one of Nussbaum’s characteristics of what it is that we require to be human; Gould wants to say that it is the key. She argues that this social ontology is one “in which the basic entities that make up society are understood as individuals-in-relations or social individuals, in place of the externally related individuals characteristic of traditional liberal theory” (p. 63). It is these inter-relations which are to play a central role in how we understand individuals, groups, societies, and, by extrapolation, our global world. This interactive account is to have a significant impact on the way in which we construct the norm of universality (also discussed in Gould 2004, Chapter 1; see below). Gould finds “appealing” the idea that universality should emerge out of the interactions of cultures – thus making universality an intersociative norm (see also Taylor 1999; Parekh 1999). Gould nominates several aspects to the emergence of such intersociative norms: (1) values generated in relationships of care, concern, empathy and solidarity; (2) those posited through common choices or co-agency, whether based on common goals and projects or on shared needs and interests; and (3) norms generated through consensus or common conversation (Gould 2004: 65) Having nominated these areas from which intersociative norms emerge, she then briefly makes the case that in each of these three areas a concept of universality is implied. I will come back to her arguments regarding this below.2 Suffice it to

Liberal autonomy and global democracy 151 say for now that Gould explicitly says she is not trying to introduce a new theory of values, but rather sees these as contexts out of which intersociative universal norms may emerge. But this does raise the question of whether these contexts must or will produce desirable universal norms. As she says herself, her account raises “another important set of issues concern[ing] the feasibility or plausibility of the universalistic extension in each of these three aspects of value …” (p. 69). This doubt, she argues, makes two responses imperative. At the practical level, new forms of institutions need to be developed which would give people “control over the conditions of their lives” (p. 69) and lead to a form of intersociative democracy. At the normative level, she gives the Rorty-esque response that respect for human rights and “sensibilities of empathy and transborder solidarity” should be cultivated (p. 70) (See Rorty 1993). We see, then, that the key issues for Gould in her advocacy of a concrete universality, relate to her conviction that the appropriate foundation for universal values is a social ontology which is conceptualized as prioritizing our social relatedness as human beings; one which highlights the specificities and particularities of our historical and local being with one another. This as opposed to the abstracted principles of shared common features which are said to emerge out of more traditional notions of liberal universality (see Mulhall and Swift 1996). The substantive content of the new concrete universality arises out of various forms of social relationships which are then extended and eventually universalized through sociological phenomena – care, empathy, co-agency, common choices, conversation, and consensus. However, Gould says, after all of this we are left with a question. These processes give the norms so generated social foundations; they show how our social realities give rise to the principles we use. But, crucially, what this approach does not provide is a means for establishing the normative status of these values, these universal precepts. It is with this observation – made by Gould herself – that I want to begin a more thorough analysis of the position which I have just sketched, including an examination and evaluation of Gould’s own response to the observation she has made. For it seems to me that Gould’s own discussion of this set of issues actually serves to reinforce the need for that which she starts out by arguing against. That is, Gould’s starting point is the inability of what she calls traditional liberal theory to arrive at a theory of norms which does justice to our true social nature as human beings.3 But, in making her critique of traditional liberal theory, she may be seen to be making all the moves that she critiques the traditionalist for making, but just on a slightly different ground. Then she returns to the key question of normative standing – only to admit that her new concrete universality needs to have an abstract universalist moment (with all that that entails) in order to have normative bite. And thus she ends by giving her own account of what it is to be human qua human – her own abstractly universalist moment – in order to secure the viability of her new concrete universalism. If we consider that her targets (Nussbaum, Sen, and others) are unlikely to take too much exception to Gould arguments about social ontology itself (see Nussbaum 2000), but perhaps will see their abstract universalism as, at

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the end of the day, playing the role that Gould wishes to grant her own, then one wonders exactly how big a chasm really exists between these views. Nonetheless, the controversy is significant to follow because it fuels the rhetoric against those liberal values which are so threatened in our world today (Kelly 2005: 1). So I will now proceed to show, in some detail, how it is that Gould’s concrete universality depends on and presupposes the abstract universalism which for much of the chapter under discussion she implies must be superseded. It is my contention that the supposition that her concrete universalism gets us away from abstract universalism, and with it narrowly defined western conceptions of liberal autonomy, is, in fact, a misrepresentation of what she achieves. What, in fact, her discussion shows is that a strong, abstract, and universal notion of liberal autonomy is fundamental to any argument which wants to prioritize democracy and human rights as universal norms in a globalizing world. I shall now instance this by examining closely various parts of the text of her argument.

Gould under the microscope To do this, I shall start at the end, with the denouement to which Gould’s dramatization of the contrast between abstract and concrete universalism heads. This section of her chapter is titled “Universality and Normative Critique”. As we have already seen, it starts with the admission that the alternative concrete universalism which Gould has been advocating is not really able to do the normative work that is usually associated with universalist positions. Her concrete universalism, it turns out, is in large part an observation of the way in which values are generated and spread in the world, to the point where they are practiced more or less universally. None of this, however, gives us a handle on the question of whether these values should be practiced universally, whether we should consider them good bad or indifferent. In order to be able to make this judgment, we need something which Gould had earlier said she did not wish to set out to develop: a theory of values. Does it make sense, then, to speak of values or norms generally – and not only the specifically universal ones – as emerging from concrete interactions or communications among individuals or among cultures? Leaving aside the “ought” from “is” issues, since my emphasis is on the social interactive context for norms, and without attempting to introduce a new theory of value here, we can identify several aspects to value emergence. (Gould 2004: 65, emphasis added) And that is where Gould lists her three ways in which values emerge: care, choice, and consensus. She is right that values do emerge out of these complexes of human behavior; she is also right to aver later that we need to have a value theory by which we determine which of the values that emerge are ones of which we approve: female genital mutilation and caste systems emerge in the same way as human rights declarations, in this sense. Their mode of emergence speaks virtually nothing to us about their legitimacy, desirability – their value.4 This is what Gould is

Liberal autonomy and global democracy 153 conceding when she re-introduces the need for an abstract universal moment. What she does not explicitly say, but what is of necessity implied, is that in embracing such an abstract moment she continues to trade on the value theory and the “ought from is” resolutions which structure the traditional liberal theory which in other places she is ready to disparage. Moreover, her abstract moment is not really a moment. It is more like what some theologians call the “eternal now”. This is because the abstraction that Gould has reintroduced does not play a momentary bit piece in the stage play of universal values, but actually becomes one of the lead roles, if not the lead role. Consider Gould’s next few lines. She says we need a “moment of abstract universality and, in particular, a conception of universal human rights that can be used normatively to criticize cultural practices that violate them, such as those centering on the oppression of women” (p. 70). This is certainly to concede the point that the abstract universalist moment is going to be eternal. But, more significantly for her overall argument, it implies that concepts of human rights are derived from considerations which abstract from the concrete, and depend on this same abstractions for normative force.5 It is useful to contrast this with a discussion on the earlier chapter of this section of Gould’s book, “Hard Questions in Democratic Theory”. The first part of this chapter comprises a review of recent discussions in democratic theory from the points of view of discourse theory, deliberative democracy and Rawlsian theory. It is an excellent discussion, and I concur with Gould’s conclusion that these theories, because of their emphasis on proceduralism, “do not provide an independent basis for the existence of human rights of individuals that a strong conception of justice would demand” (p. 31). Gould’s concern here is that even well justified democratic procedures can give us unjust outcomes – but, of course, in order to be able to say this, we need to have a criterion of justice which is independent of procedures, otherwise we end up with a circle where what is just is whatever the system produces. Gould’s claim is that such an independent criterion of justice “must be grounded in some substantive features of human practice or of human existence if it is to have the normative force required” (p. 32). It is this kind of grounding which Gould sees as comprising her social ontology, which in turn is the foundation of her concrete universality. This social ontology is based on “experientially or phenomenologically well-evidenced features of the action and interaction of human beings” (p. 32). Gould makes the link between justice and rights by saying that “rights involve the recognition of features of human action and interaction … an argument for or a justification of such rights can be made on these grounds” (p. 32). This in turn, says Gould, links to her notion of concrete universality – to be elaborated in the chapter I have been focusing on here. The notion of concrete universality certainly fits in well with the idea that justice is grounded “quasifoundationally” (although non-essentialistically) in features of human action and interaction. However, the mere observation of regularities in human conduct is not sufficient to provide for justice. There are many behaviors among human beings which are phenomenologically well evidenced features and which it is the burden

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of Gould’s argument to end. Abuse of women, in one form or another, is a key example. Our independent criterion of justice may in fact depend on our preference for human behaviors which are not phenomenologically well evidenced features of human action and interaction. Rather, it may be all about very rare, hard-to-find standards which we wish to put in place to regulate the all too common abuses that people suffer in human relations. Gould’s way through this is to claim that freedom is a phenomenologically well evidenced feature of human action and interaction, and that it is “the characteristic mode of human agency or life activity” (p. 33). It is, however, not clear that one can get to freedom as the distinguishing feature of human agency and activity without engaging in something other than a mere evidential tallying up of what it is that humans most often do. There are two points here. First, it is not certain that most humans most of the time are in fact free, in the sense Gould uses of being able to engage in self-development or self-transformation. But, more crucially, the second point is that even were this the case, the question has to be answered: “What makes that freedom important, significant, normatively prior?” Mere frequency and regularity of occurrence mean nothing more than just that. Gould herself makes this very point, if not quite as emphatically, and it is the reason why she moves from suggesting that concrete universality should supersede abstract universality, to saying that concrete universality needs the resources of abstract universality for its normative force. To further this claim, let us look at Gould’s next major point in Chapter 2: As rights pertaining to all humans as such, the abstractly universal norm of human rights makes a claim to be based on a universal feature or features of human beings themselves. But as we have seen … we need to avoid an overly rich and highly determinate list of such features if we are to avoid falling into the trap of the essentialism of a fixed human nature or into the error of projecting our own contemporary liberal culture into a general account of the human. How can we do this? We need a conception of human beings that supports their equality and the idea that each should recognize all the others as bearers of human rights. (Gould 2004: 71) The issue here, I would suggest, is that Gould’s diagnosis of the problem and her suggestion for a cure are simply different perspectives on the same issue. It is rather difficult to see how it is possible to advocate a value set which includes the key ideas that we are all equal, and that we all are bearers of human rights, and not be advocating contemporary liberal culture (Kamenka 1978). Ironically enough, I think we may be able to tease this out a little more by using a distinction Gould has herself provided us with, but by using it in the opposite way to the use that she makes of it – or at least, the use she makes of it initially. Let us take abstract and concrete universalism. Her initial use is to criticize the abstract by way of the virtues of the concrete. But in the quotation above, I would suggest she is actually doing the reverse – and that it is the capacity of the abstract to critique the concrete

Liberal autonomy and global democracy 155 that is its key role for us in our reasoning processes, and is, ultimately, why she comes back to use it in this fashion for all that she has earlier descried it.6 What do I mean? Let us return to Gould’s comments about essentialism: there she made the important and powerful point that what often happens with concepts of the human qua human is that the interests, biases, and prejudices of the powerful become reified into a vision of how all human beings should look; and then this vision is granted objective and neutral status, often blessed as being the rational way of looking at things. It is then used to make the world safer for those who are already in control of it, and to make the grip of the weak on the world more and more tenuous. We could say here, that what happens is that the world as concretely universal is reinforced; the concrete patterns of universality are reproduced; and those who concretely have power, interest, wealth, fame and so on, are able to get more. The only break on this that we can manufacture is to move from the experiences of concrete universality, via a normative critique that depends on an abstract formulation of what is due to all human beings as human beings. We may then be able to move to a new form of concrete universalism, informed by that normative critique and maintained as just – or more just – by the key abstractions of humans qua humans which are at its core. This is why, as Gould correctly points out, we need a concept of human rights to criticize cultural practices which often have a terrifyingly concrete universality in the world around us. I think that what this shows is that Gould is correct to distinguish between the two types of universalism, and correct to see the concrete type as generative of our universal practices; however, she is incorrect to separate them and hold them up as two different types of the same thing. Rather, they are two different forces, both of which are needed in order to promote democracy and human rights in a global world. And it is these outworkings of “our contemporary liberal culture” that we must recognize ourselves as legitimately wanting to be at the core of our general account of the human. This is not something from which we should shirk – it is certainly not something from which Gould shirks, despite her rhetoric here, as we shall see further below. In the quote above Gould reminds us of her earlier discussions about the traps of essentialism. But I think there must be admitted some legitimate degree of essentialism – I may go so far as to say that any moment of abstract universality conceptually requires an eternal now of essentialism. And for liberalism, the bedrock essentialist claim is that all human persons have equal value.7 This is a fixed and basic presupposition which any liberal, democratic, human rights-oriented universalism must admit. It is this essentialism which undergirds the normativity that Gould is reaching for when she appeals to her abstractly universalist moment. Some may say that this is all well and good, but that I am being too harsh on Gould, because what she is actually critical of are views like Nussbaum’s. Gould describes these views as being “overly rich and highly determinate” – they go significantly beyond saying “we must all agree about equality”, but also want us to agree on a large range of other features. However, it is my argument that the implications of what Gould argues for have exactly the same effect. Gould’s abstract moment in fact takes her back to the (desirable) heartland of abstractly

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universalist liberal democratic theory, and leads her to endorse a range of nonnegotiable criteria for what constitutes a truly adequate life for human beings as human beings (this being a minimal version of the good life of which she claims not to be giving an account (p. 72)). Let us see how this happens. A quick reminder that, earlier in this chapter, Gould has argued that the problem with most attempts to avoid cultural relativism is that they are themselves too culturally relative, and that the principles they use for pre- or proscribing behavior are too determinate and bounded by cultural bias. She argued there that the source of the problem was the use of abstract universality: “Such a criterion of universality attempts to characterize what is common to all human beings or to all societies at all times and abstracts from the differences between them. … It studies the human qua human, or human nature as such” (p. 56). However, we find now that not only has Gould turned back to abstract universalism, having found that concrete universalism is not adequate to the task of normative critique, but in her return to abstract universalism she enthusiastically sets about the task of setting out what it is that “is common to all human beings”, what it is that comprises human nature, the human qua human. What then, is her account? I would propose that the basis of a principle of equal and universal human rights can be found in the transformative power of human agents itself – that is, their very capacity for social and historical transformation, or what I have called their equal agency. … The capacity or power for such transformation and self-transformation is characteristic of social individuals in all cultures. … I have argued that this capacity of humans as agents, which is both constructive and operates socially, can be referred to in terms of the idea of freedom. … As characteristic of each human being as an agent, this power requires recognition by all the others. This recognition is at the same time the acknowledgement of the equality of others with me in respect to having this capacity and, in this sense, of their equal freedom or equal transformative power. (Gould 2004: 71) This understanding of what it means to be human then leads Gould to endorse a wide range of social and material conditions which are required in order for human beings to flourish – or to at least live a minimally good life. These include the standard lists of positive and negative rights (as they are usually and ill-advisedly divided up). We have our freedoms from: freedoms from interference, from oppression, and so on. And also our freedoms to: freedoms to associate, to speak, and so on. And for both of these categories there are enabling conditions which must be provided. These are both social and material: basic economic provisions for subsistence, health care, cultural goods, education, training; crucially, the “right to democratic participation in common activities” (p. 72). Gould is concerned here not just with basic existence as a human person, but also with being granted the conditions that the human person needs in order to grow, mature and develop as a person. People’s goals and capacities are to be facilitated and drawn out over time. In the process of elucidating this account, Gould makes the point that this

Liberal autonomy and global democracy 157 account looks something like the views of Nussbaum and Sen after all – views which, you will recall, she starts out by repudiating in quite strong terms. So, how similar are the views? Well, Gould’s position is that there remain two key points of differentiation between her and Nussbaum in particular. The first is that Gould avoids the focus on “strong separateness” – a form of individualism – which Nussbaum’s earlier versions of her capabilities approach involved. The second is that Gould avoids depending on “any idea of fixed human characteristics” (p. 73). From my point of view, these differences – at best – remain as shades of grey. For example, regarding the first difference, Gould herself in the next paragraph highlights the way in which the emergence of human rights depended on the “constructive and interactive power of differentiated individuals in society” (p. 73). Moreover, her fundamental trait of human beings is their capacity for equal individual agency. This does not seem far removed from Nussbaum’s strong separateness; on many readings I think the terms would be taken to be synonyms. The second point of differentiation from Nussbaum that Gould refers to, that of fixed human characteristics, also seems to fade to grey. A moment before, Gould makes the strong claim that agency, or the power of social and personal transformation, is to be thought of as an essential trait of what it is to be human. She is loathe to make a list like Nussbaum’s, but I think it the case that, in fact, Gould has produced such a list, just not in the same literary form. And once Nussbaum’s own list is put next to the requirements for full human being, equality and agency that Gould adduces in this final section of her chapter, then I am not convinced, putting protestations to the contrary by Gould to one side, that it ends up being quite the bogeyman of essentialism and determinateness that Gould makes out it is. Gould concludes the section and the chapter by saying that the concept of concrete universality then contains as essential elements the abstract norms of human rights and equal freedom. The emergent norms which comprise concrete universality are “based on the agency of social individuals …” (p. 73) – which is to say that they are based on abstract universalism, because it is from abstract universalism that we learn that the equal agency of social individuals is normatively preferable to any other kind of arrangement for society. (Alternative arrangements, as I noted before, are also emergent out of concrete universality.) Thus, concrete universality turns out to only really figure as an explanation (and no less important for being so) of how the values we arrive at via abstraction get legs and travel, thus becoming more or less empirically universal. Thus, Gould ends her chapter by undoing the premise on which she started, i.e. that it is abstract universalism which is the source of cultural bias in the evaluation of human behavior. Now, abstract universalism is an essential component, indeed the essential component, in being able to offer any manner of normative critique at all.

Why it matters What is the significance of all this, and why does it matter? The project in which Gould is involved is that of promoting and theorizing democracy and human rights

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in our global world. Gould places herself as a strong defender of this project. Yet that defense is weakened, I would argue, to the same degree that we are too shy to make strong claims for our fundamental values as democrats and proponents of human rights. And here, my argument is that a strong concept of what Gould has called abstract universalism is always going to be fundamental to human rights and democracy; thus, it is always going to need to be on the front line in defending them – and, in turn, is going to need to be vigorously defended when it comes under attack. All of these have been under attack, and this is not the place in which to attempt a defense on all fronts. Instead, let me make a point about one of the ways in which we can inadvertently weaken our defense of human rights and democracy by a mistaken strategy for their expansion – it is this mistake that I see to be central in Gould’s account as explored above. Democracy and human rights both unmistakably emerge out of the western intellectual tradition of liberal political thought – or, as we should more accurately say, out of these various liberal traditions of thought. The West has brought many other things to the global arena as well: not least its imperial, aggressive, dominating politics; its religious crusades; its economic exploitation; its consumerist individualism; and its rampant materialism. There is much to be critical of in the behavior of ‘the West’, evident in the actions of those agents who are usually identified by this term. So much so, that it has become difficult, in some quarters, to talk of the West in anything but negative terms. Indeed, the behavior of many Western states in the name of human rights and democracy has created a great and very genuine distrust of even these ideas in the eyes of the many whom we may judge are most in need of, and most desire on their own account, the genuine article. The complaint against the West, however, goes deeper than this. This point is that the West says one thing and does another – even though, I think, this complaint could be sustained against all political actors at some point, regardless of their geography. The more specific complaint against the West is that even when it does what it says it is doing, it is doing something wrong because it is bringing to bear something specifically Western, something that is other to what was there before. Moreover, the West has the precocity to say that it is bringing to bear what is right, because it accords with (and here you may take your pick) the laws of nature, the rules of reason, the world spirit, the inevitability of determinism, dialectical materialism, or pure and simple real politik, i.e. realism. The West has defined reality. It is against this definitive presumption that many theorists of human rights and democracy struggle. Democracy, as is well known, is partly lauded because it seems the perfect governing mechanism – or rather, the least imperfect – for a society which is in fundamental internal dispute over the nature of reality, and over the public policy and the consequences which flow from these debates (Ian Shapiro and Casiano Hacker-Cordon 1999a; 1999b). Again, human rights are lauded because they give people, among many other things, the right to hold these different views – within, of course liberal limits! Here: JS Mill’s harm principle. But therein lies the rub: it is the liberal presuppositions behind democracy and

Liberal autonomy and global democracy 159 human rights which feed and generate, create and sustain, the space for people to have different views and still be included within the political community (see Appiah 2005). It is this task which has been established with highly significant degrees of success (although not without qualification, it is true) in those societies which we call the liberal democracies of the West. And in books like Gould’s Globalizing Democracy and Human Rights, this political goal is being pursued for both other states and for the space in which international politics and international civil society is contained. The project then is one where a set of politico-moral values which are given as good and desirable are to be defended against, and advocated as legitimate replacements for, a whole range of already existing forms of political and social arrangement. The tension for many at this point is that their liberal democratic instincts pull them in two directions: on the one hand, for making a clear stand in favor of a discrete set of values; on the other – and this is because of the nature of these values – for advocating a pluralism and tolerance that affirms that people have, as it were, the right to be who they are now, regardless of how wildly we disagree with them.8 I think that Gould is a good example of this: she is very conscious of the value of pluralism and tolerance, of difference, and so on. Explicitly, on a number of occasions, she raises concerns about the West: for example, in the chapter we have focused on, about the importing of western liberal forms of development (p. 51). At the same time, however, her own philosophical and normative arguments turn out to be perfectly congruent with the traditional liberal theory which she argues against, in affirming the centrality of individual freedom and equal agency (or what might otherwise be called liberal autonomy, values which are insured normatively through the appeal to abstract universal reason), as the cornerstone for her normative defense of human rights and democracy. The critique I have advanced of Gould’s argument is, I think, an individual case that can be generalized much more broadly. Critiques of Western liberalism have been plentiful on the ground in recent years.9 The critiques of individualism or of liberal autonomy have often been made in the name of feminism, or of minority ethnic, religious or social groups within the West; and beyond the West, the critiques have mainly been made using the notion of culture or identity. The real problem seems to be that those making the critique depend on precisely the values which they are questioning in order to make the critique and advance an alternative – an alternative which often purports to be more respecting of human rights and more able to advance democracy for not being so Western. I would suggest, however, that as in Gould’s case, if such accounts are in fact able to support human rights and advance democracy, then they will be predicated on some form or another of liberal autonomy. And as Gould points out, it is the normative account that we give of the persuasiveness of this liberal autonomy that, at the end of the day, is the critical achievement of social and political thought, and the bedrock of human rights and democratic values.

11 Reconceiving autonomy and universality as norms for transnational democracy Carol C. Gould

In “Liberal Autonomy and Global Democracy” (in this volume), Anthony J. Langlois takes up the important question of which norms can provide an adequate basis for universal human rights and undergird increasingly global forms of democracy. He specifically argues against the account I have given of what I call concrete universality in my book Globalizing Democracy and Human Rights (Gould 2004, especially Chapter 2). Langlois favors a reliance on “liberal autonomy” as the indispensable normative basis for criticizing cultural practices and modes of social and political organization that violate human rights, as well as for constructing a positive account of new transnational institutions of democracy. I am pleased to have this opportunity to respond to his insightful and interesting discussion of my work. Through this process, I hope also to clarify and further develop my views on these philosophically difficult topics. The thrust of Langlois’ critique is that, although concrete universality speaks to the conditions of the emergence of norms by pointing to their historical and social evolution, these conditions are merely descriptive and lack any normative force. While he recognizes that liberal autonomy is a distinctively “western” notion, he claims that only it can provide a firm basis for recognizing human rights and global democracy. Langlois further proposes that I, like other critics of liberal individualism, in fact have to fall back on just such liberal concepts in order to give any normative bite to our recommendations for extending freedom, democracy, and human rights in the present globalizing context. I will argue here in the first place that Langlois presents a “straw man argument”, by incorrectly taking the account I give of concrete universality in Chapter 2 of my book out of its relation to the norm of equal positive freedom and the social ontology that I present in Chapter 1 of that work. In that earlier chapter, I work explicitly with norms of equal agency, which I, in a similar way to Langlois, believe are essential for effective critique. So it will be clear that his accusation that I disregard norms that value individual agency is unfounded. Moreover, I will go on to show how my concept of equal positive freedom and of the agency of (social) individuals differs from traditional concepts of autonomy (even when interpreted as relational autonomy, as several feminist philosophers have recently proposed (Mackenzie and Stoljar 2000)). Further, I will suggest that a norm of concrete universality importantly supplements both the purely liberal concept of autonomy

Reconceiving autonomy and universality 161 and the correlative concept of abstract universality that Langlois advocates. The suggestion is that attention to cultural differences and interactions, to the social and historical conditions of the emergence of norms, and to the use of a critical methodology as well as to the critique of oppression in practice – all of which are required by a norm of concrete universality – are essential in order to give purchase to an account of agency, even of the traditional sort that Langlois favors. In the course of these analyses, I will attempt to draw out some of the implications of the normative concepts presented here for the further development of more transnational forms of democracy. My response to Langlois’ critique will thus have several parts. First, I will clarify how the theory I present is self-consciously based on a notion of the equal freedom of individuals, where this also serves to ground a strong concept of human rights. Second, I will suggest how this social ontological concept of freedom and equal agency differs from traditional liberal concepts of autonomy, though it preserves what can be regarded as a liberal moment. In particular, my approach to such equal agency emphasizes the integral role of the social relatedness of individuals, including their participation in what I have called common activities, and that of freedom from oppression and domination; my account also recognizes the significance of culturally and socially diverse forms of agency. Moreover, this approach will be seen to focus on the transformation of people over time, in a sense that requires access to material and social conditions of agency, a crucial feature of agency that tends to be omitted in traditional liberalism. Further, when freedom and individuality are reconstrued in these ways, it becomes clear why we need a notion of concrete universality to supplement the abstract one. Such concrete universality should not be understood as a simple historicist, empirical, or “sociological” account of the generation of norms. Rather, it centrally emphasizes social critique and gives an important role to self-criticism in generating an adequate normative framework for moving toward transnational democracy, and indeed for realizing the norms inherent in traditional liberalism. In a more material mode, it emphasizes the emergence of particular non-oppressive and solidaristic social relations, and the interconnection of individuals within newly transnational communities. Through these analyses, I will suggest the ways in which this emphasis on difference and relationality makes a difference, as it were, and why we need to go beyond traditional liberal autonomy and abstract forms of universality if we are to help establish wider frames for human rights and transnational democracy. Two clarifications are important at the outset. In his chapter, Langlois does not explicate in detail what he means by liberal autonomy, and he most often seems to equate it with a belief in the fundamental equality of persons, a norm to which I and other critics of liberal individualism are fully committed. But to conflate the meaning of autonomy with human equality in this way misses the point of the critiques of traditional forms of liberalism, for what has been subjected to criticism is not equality but rather understandings of freedom, self-determination, and agency that are overly narrow and seen in exclusively individualistic ways. Another important clarification is that my argument in Chapter 2 of my book

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was in fact addressed not to Amartya Sen’s account but rather to that of Martha Nussbaum (though I mention Sen in passing in my discussion there). As I see it, Sen has, for the most part, operated within the positive freedom tradition, out of which my own work also arises. His interpretation of capabilities does not commit him to an account of essential human characteristics of the sort I identify with Nussbaum’s work (particularly in her article in the collection Women, Culture and Development, which was modified to a degree in her later book Sex and Social Justice (Nussbaum 1995 and 1999)). In this connection, I will attempt to further clarify how my emphasis on human rights and basic needs, and the conditions for action, differs from an essentialist account and does not amount to giving a list of fundamental human characteristics.

A straw man argument? First, then, I would address Langlois’ critique by simply noting the centrality in my own view, as in his, of fundamental human equality based on people’s equal agency. Thus his claim that I wrongly omit those notions is false. Indeed, in the social ontology developed in my earlier books, I spoke of the ontological primacy of individuals, although I characterize these as “individuals-in-relations” (Gould 1978: chap. 1; Gould 1988: chapters 1–3). My own theory is, therefore, in agreement with Langlois’ insistence that recognition of the freedom of individuals is a cornerstone of the norms that underlie more global forms of democracy.1 In my view, claims to equality are based on features of human agency and cannot be deduced from merely historical observations about changing social relations. Thus, it is wrong to see these norms as simply emerging in modern times, for that would require us to be able to say, for example, that some centuries ago it was meaningless to assert that slaves should be free. I previously characterized this account as “quasi-foundationalist”. The advantage of such a social ontological approach is that it points to some basis in human action and interaction for recognizing people’s equal freedom and dignity, which in fact constitute the two pillars of human rights both in theory and in the various covenants that have been introduced to protect and fulfill them. So what then can we say about the disagreement? Why should one not simply accede to Langlois’ critique and become a strong liberal individualist of the sort he recommends? The suggested alternative instead conceives the central norm of justice as one of equal positive freedom, where the concept of freedom or agency is distinguished from a notion of liberal autonomy. (We can add that the norm of dignity too undergoes a certain transformation in this account to recognize not only standard personhood but also neediness; but that discussion has to be put off to another occasion (Gould 2008).) If the term liberal is to be retained for this alternative view, it is clear that it entails a new kind of liberalism. Without rehearsing all the relevant arguments here, what can we say about the inadequacies of traditional liberal autonomy and the philosophical advantages of a theory of equal positive freedom? The criticism of liberal individualism (taken in a broader sense than liberal

Reconceiving autonomy and universality 163 autonomy per se) is old and well established. Without reviewing this oft-trodden ground in any detail here, we can note that markers in this critique include discussions by Marx himself; in the past several decades by C. B. Macpherson, Charles Taylor, and Michael Sandel; and by feminist theorists critical of liberalism from the standpoint of the critique of domination (e.g. in Iris Marion Young) or from a care perspective (e.g. Carol Gilligan, Virginia Held, and Sara Ruddick, among others) (Marx 1973; Macpherson 1973 and 1977; Taylor 1985; Sandel 1981; Young 1990; Gilligan 1982; Held 1987; Ruddick 1989). My own work from the mid-seventies to the present has also been based on a critique related to several of these (Gould 1976; 1978; 2004: chap. 2). Such critical approaches have addressed traditions that emerged in eighteenth century thought and that have continued to the present. While some theorists of autonomy, e.g. John Christman, attribute that concept primarily to the Kantian rather than consequentialist philosophers (Christman 2003), there is considerable overlap among these thinkers with regard to individual freedom and its value. And while it may be disputed whether the liberal individualism under attack in these critiques can in fact be found in Kant or Mill themselves, nonetheless themes of this sort are in play among several important philosophers of the modern period, e.g. Hobbes and Locke. These themes are certainly also among many twentieth-century political theorists and philosophers, who emphasize the status of individuals as self-determining in accordance with norms of rationality, or as rational choosers in the pursuit of their own self-interest. Thus, the still dominant account of agency has become identified with such a concept of choosers who stand outside of and beyond their various projects, where these projects are defined in individualistic terms. Of course, it should be added that critiques of this individualism have been advanced not only by Marxists, communitarians, and feminists, but by pragmatists and postmodernists. And in response, there are now growing efforts among autonomy theorists, as well as rational choice and action theorists themselves, to give more social accounts of individual agency and autonomy. Concepts of relational autonomy, in particular, would seem to address many of the concerns raised in these critiques, especially those concerning the role of freedom from oppression. But I would suggest that in remaining with the notion of autonomy, they face several of the problems that bedevil the older view. In earlier writing, I suggested that a liberal individualist account of agency and of the norms appropriate to it tends to frame them in terms of a concept of freedom understood as negative liberty, understood as the freedom of the individual from external constraint or interference. If individuals are fundamentally simply choosers, then on this interpretation of freedom, other individuals, along with the government or the public sphere more generally, should essentially leave them alone, insofar as they do not harm others (Gould 1988: 31–40). This fundamental claim has been subject to many criticisms, including a noteworthy early set offered by C. B. Macpherson (Macpherson 1973; 1977). It is evident, of course, that insofar as negative liberty is interpreted to require civil and political liberties and rights, it is clearly of great significance for broader concepts of freedom as well. Yet I suggested, from my work on Marx’s Social Ontology in 1978 through more

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recent writings (Gould 1978: 103–110, 170–178; 1988: chapters 1 and 5; 2004: chap. 1; 1995), that a fuller concept is needed: one of equal positive freedom. Equal positive freedom would include such liberties and rights along with freedom from domination and exploitation, and would additionally recognize the role of enabling conditions of action and interaction, i.e. of the various material and social conditions for action. I argued further that both the absence of constraining conditions and the availability of enabling ones give rise to a set of basic and nonbasic human rights (Gould 1988: chapters 1 and 7; 2004: chapters 1 and 3), where these help constitute a normative framework for more global interrelations in the contemporary period. Recently, theorists have elaborated concepts of autonomy that attempt to distinguish it from concepts of liberty, or, in contrast, to bring it close to the notion of positive freedom discussed here. For example, John Christman writes that “generally, one can distinguish autonomy from freedom in that the latter concerns the ability to act, without external or internal constraints and also (on some concepts) with sufficient resources and power to make one’s desires effective … [cites Berlin (1969), Crocker (1980), and McCallum (1967)]. Autonomy concerns the independence and authenticity of the desires (values, emotions, etc.) that move one to act in the first place” (2003). Yet, in a different way, Christman maintains that “personal (or individual) autonomy should also be distinguished from ‘freedom’, although again, there are many renderings of these concepts, and certainly some concepts of positive freedom will be equivalent to what is often meant by autonomy” (Christman 2003). He further distinguishes between basic autonomy and autonomy as an ideal. It seems to me that the former comes close to my own emphasis on choice as a fundamental characteristic of agency (although, for me, choice is in some ways ingredient in actions), while “ideal autonomy” for Christman is “an achievement that serves as a goal to which we might aspire and according to which a person is maximally authentic and free of manipulative, self-distorting influences” (Christman 2003). It is clear, however, that the latter is distinct from the concept of the development of capacities and projects over time that, to me, constitutes the core notion of what I have called freedom in the fuller sense, or positive freedom (Gould 1988: 35–60). Focusing on the authenticity and independence of the individual’s actions, however worthwhile, does not capture the developmental or social aspects of freedom as discussed here. And the latter is crucial, I would suggest, for an adequate approach to norms for transnational democracy and human rights.

Equal positive freedom versus liberal autonomy It would be helpful at this point to summarize how a more social account of agency and equality includes features that distinguish it in various ways from traditional individualist approaches: 1.

In an ontology of individuals-in-relations, agents are conceived as constituted by their relations (which are therefore internal to them), although they also

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2.

3.

4.

5.

have a capacity to choose and change these relations to some degree. Thus, such an account differs from holistic internal relations accounts that see individuals as wholly interconstituted by their relations. Classic individualist views, by contrast, tend to conceive individuals as remaining who they are despite their relations, which are thus seen as external to them. In the approach I have given, the interdependence of individuals is recognized as essential to people’s realization of projects – whether their own or joint. This interdependence also manifests itself in processes of nurturance and socialization, and in the political importance of the basic social claims that they make on each other for meeting their needs and enabling their development of capacities. In this view, agents are transformed and transform themselves over time; hence their growth and development are crucial. This contrasts with the classical liberal emphasis on free choice alone as exclusively constitutive of personhood. The positive freedom approach advanced here recognizes choice as a capacity for self-transformation, but identifies agency not only with this but with the development of capacities and the realization of projects – individual or collective – over time. Agency proceeds through working on and with material conditions, and it requires recognition by others (where not only social interaction but also cultural practices play an important role in such ongoing and changing modes of recognition). Hence, both material and social conditions need to be available to enable people to act effectively. Where treated at all, liberal autonomy views tend to regard material and social conditions as merely external contributors to successful agency, rather than as part of an adequate concept of agency and freedom. Agency is often joint or collective, i.e. aimed at common or shared goals, and in these contexts there is a requirement for democratic co-determination of the course of the activity (Gould 1988: 71–90). Liberal autonomy, in contrast, has tended to privilege individual goals and, in at least classical formulations, regards collective action either as an impossibility or in purely aggregative terms. It can be seen, then, that as involving processes of self-transformation or selfdevelopment, such agency can be characterized as free, in a positive sense. Although presupposing the absence of constraint (and of oppression), this view contrasts with notions of liberty as essentially negative.

From these features of agency, certain other claims regarding equality and recognition can be seen to follow: 1.

As in concepts of autonomy, the notion of equality is central. Here, it follows in the first place from people’s ability to choose as a capacity to transform themselves (whether individually or culturally), which is a capacity that can be recognized as possessed equally with other humans. Such a capacity for self-transformation that is ingredient in action can come to be articulated in abstract norms of universality, and in particular those of freedom and dignity.

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3.

4.

C.C. Gould But this capacity for free choice presupposed in concrete activity is only an aspect, though an important one, of this agency. This agency is fundamentally dynamic, and where, moreover, further self-transformation is posited as a value in ongoing processes of activity itself. Freedom in this positive sense is thus what I have called “a normative imperative” given in our concrete activities. However, processes of recognition of this agency have often not been reciprocal; instead they have been rather one-sided, characterized by domination or oppression. And we can see that norms of equal agency have themselves taken time to emerge. Nonetheless, as ingredient in certain contexts of ordinary interaction, we can say that there is already some degree of tacit reciprocal recognition of such agency, whether this be the reciprocity involved in language and greetings, or in what Erving Goffman called “unfocused interactions” (1963: 24), through which each individual as a “vehicular unit” recognizes other pedestrians in passing them on the street, and through which they voluntarily coordinate their actions (Goffman, 1971: 3–27). Reciprocal recognition of this mundane variety is thus incipient in a range of ordinary behaviors, whether verbal or not. Yet it is clear that the full recognition of equal agency in social life in a strong sense is a protracted historical and conflictual process. Structural oppression and injustice clearly stand as obstacles in this process. Liberal individualist views most often do not theorize domination or oppression, and certainly do not see their removal as on a par with guarantees of political liberties and as necessary for reciprocal recognition. As already noted, agency cannot be effective without access to the means or conditions for transformation and development. I have suggested that these means include both the absence of constraining conditions such as coercion and oppression and the availability of enabling conditions, whether material or social. I specify these conditions in terms of notions of basic and non-basic human rights, where the basic ones designate claims to conditions necessary for any human action whatever, and non-basic ones point to conditions for the further development of capacities and the realization of projects beyond these minimums. The basic ones can also be articulated in large measure in terms of the needs that people share (though needs can come to extend to non-basic conditions as well). Thus, unlike a liberal autonomy view, this concept sees both economic and social rights as crucial, and as much so as the traditional civil and political rights. Unlike standard liberal approaches, this concept admits to cultural and historical variability in the interpretation of these conditions, and recommends inter-cultural dialogue with regard to such interpretation. There may even be cultural differences possible with regard to which conditions are thought to be basic and non-basic, though it would seem that such fundamental features as means of subsistence would have to be recognized as basic needs. In addition, of course, there are wide differences in modes of self-development and selftransformation, not only socially and culturally, but among individuals as well. Thus, this concept highlights individual difference in theory, and in

Reconceiving autonomy and universality 167 practice requires a casuistic and contextually-sensitive application of norms as well. In terms of influences from philosophical traditions, it is perhaps worth noting that this account shares with liberal (and indeed existentialist) views, an emphasis on agency and on choice, but it also draws on the Hegelian and Marxist tradition to give weight to social relations, interdependence, and the importance of common or joint activities. Moreover, it draws on Aristotelian and pragmatic sources to conceive of action as operating within and on conditions, and as entailing growth and development over time. And, indeed, it emphasizes the variety of social and cultural practices and institutions that contribute to shaping possibilities for individual and collective action. The view here is strongly influenced by Habermas’s theory of the reciprocal processes of recognition ingredient in social and communicative action. However, unlike his approach, it seeks to privilege not only linguistic types of action but also a range of non-linguistic ones. The concept does not separate out the state and the public sphere from other social institutions, including economic ones, as domains of agency and indeed of democratic decision. The approach here also incorporates feminist insights regarding the role of caring and nurturing in the cultivation and expansion of agency and interdependence. And, of course, the concept shares the feminist critique of domination and oppression as an essential precondition for freedom and dignity. Finally, in rooting human rights in the social claims we make on each other in virtue of our interdependence, this account also resonates with feminist ethics notions of the centrality of care and of the practical contexts in which we rely on each other for nurturance and support. Unlike classical liberal individualist views, the account here is not oblivious to, nor does it seek to abstract from, cultural and other forms of difference. As suggested, these are built into the principle of equal positive freedom itself, which asserts the equality of persons in and through their differences (both individual and social). The principle counsels an equal provision of differentiated means, to the degree that this can be organized in a fair way though the operation of economic and social practices and political institutions, and in recognition of the wide range of individual and joint projects. Difference also comes in with the importance of the varieties of social organization, the range of cultural traditions, and the forms of artistic expression; these all manifest people’s creativity and invention, as well as their ties to the past and their individual and collective memories of it. But while some theorists take note of these differences and the various modes of transformation worldwide, and regard them as proof of the impossibility of any notion of universality (for example, of human rights), my argument, put simply, is that it is the fact of change or of self-transformation itself that, when duly recognized, requires prima facie equal access to the conditions of agency. What is common through difference is this activity itself, and its requirement of material and social conditions that can make it effective. An argument for equality can be developed on this basis since, in fact, everyone needs these conditions, and their claims on them and on each other for their realization are equally valid. The fundamental pre-suppositions of the argument, then, are the character of human

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activity as self-transformative and the interdependence of persons. And to say that people have equally valid claims on the conditions is to say that they have rights to them, and specifically, human rights. I suggest that such an account is more open to a wide range of cultural and social forms of organization than is classical liberal individualism, and it does not seek to reduce them to a single model (inevitably an imperial project). But this approach also does not at all regard all possible forms of human action and practices as manifestations of freedom or the recognition of dignity. In fact, it proposes that human rights can legitimately serve as limits on the acceptability of certain cultural practices and forms of organization, action, and expression (although human rights are themselves partially open to differences in interpretation). The limits provided by human rights are based on the value of equal freedom and dignity, but here are construed in a different and richer way in comparison to liberal autonomy, as I have sought to show. Finally, it is clear, too, that this account differs from essentialist approaches that specify a list of fundamental human characteristics, contrary to Langlois’ allegations. If essentialism entails a belief in a fixed human nature, or unchanging characteristics constitutive of humans, then the account I have given is manifestly not essentialist. For it posits the central feature of agency to be change and selftransformation itself. It specifically seeks to deny the immutability of human beings, and finds their commonality in their capacity for change, understood as social or individual modes of self-transformation over time. I believe that such self-transformation is widely characteristic of people and is not a “western” notion. Reflecting on it in the ways suggested above and recognizing the capacities that people have for such self-generated transformative action provides a basis for their fundamental equality. The other crucial shared component is the fact of people’s interdependence in meeting needs and in realizing any of their projects, be they individual or collective.

Interpreting universality concretely Although differing sharply from liberal individualist concepts of agency and freedom in the ways indicated, the view I have proposed nonetheless preserves a moment of abstract universality in its recognition of equal agency as a crucial part of the normative basis for human rights. It might be added that the justification for rights of democratic decision also makes reference to the related principle of equal positive freedom as justifying wide participation in contexts of common or joint activity, including in new cross-border communities (Gould 1988, chap. 1; 2004, chapters 7 and 9; 2007). But we may still wonder what a notion of concrete universality adds to this account, or even why it is needed at all. In this part of the chapter, I will suggest that this notion does more work than Langlois thinks – it is not merely an account of the emergence of universalist norms as he asserts, but in fact does important normative work of its own. Indeed, even the process of attending to the emergence of norms is of more significance than Langlois grants. But I want to suggest here that a concretely universalist concept goes beyond such

Reconceiving autonomy and universality 169 explanatory functions to point to certain under-theorized aspects of norms, and to the socially critical methodologies that give new content to notions of human rights and to the transnational democratic forms that are needed in the upcoming period. It is perhaps worth noting that the term concrete universality, though drawn from Hegel in his Logic2 (and used fairly extensively by the British Idealists), is not employed here in Hegel’s sense, but rather in a distinctive way. The account bears, at most, only a certain resemblance to Hegel’s own usage, which is itself quite complex3 (having primary significance, for him, as an epistemological and metaphysical concept, and only secondarily as a socio-political and normative one).4 Concrete universality can first of all be seen as a corrective to the one-sided view of many of the abstractly universal characterizations of the human that have been offered historically (and even in current philosophical analyses). Thus, as Langlois observes, my argument in Globalizing Democracy and Human Rights is critical of fixed human nature views that characterize the human in terms of a favored and historically delimited concept, usually derived from the activities of the powerful in a given society. (I also argued this in my earlier article “The Woman Question” (Gould 1973–4)). Similarly, I have suggested that lists of human characteristics like Nussbaum’s inevitably end up favoring the dominant characteristics of the age or of a particular culture (for example, “strong separateness”), while omitting or downplaying other characteristics that are associated with marginalized or oppressed groups, or that are of considerable importance in other cultures. A more interactive and ideologically aware account of the genesis of norms, such as is offered in the idea of concrete universality, plays an important role in countering such a one-sided view. It requires us to be self-critical, and to focus explicitly on potentially distorting and narrowly self-interested features of our own perspective when advancing claims to universality, as well as in the development of these norms themselves. It counsels recognition of the biases in theories that can be introduced in virtue of our particular background or position within broader groups and societies, and it advises the use not only of self-criticism but also of dialogue with other groups as necessary correctives to overcoming such biases (Gould, 2004: chap. 2). In progressive interpretations of this concrete universalist approach, special attention can be given to marginalized groups who, because of their distinctive experiences (including those of relative disadvantage or oppression), can serve to call attention to previously unnoticed or unincorporated normative considerations. It can be seen, then, that it is not primarily a question of “applying” pre-given norms to a non-normative subject matter; rather, it is a question of clarifying both these norms themselves and their import. This can be done by reflecting on the specific practices and modalities that have come to exhibit their significance over time, and on the more inclusive interpretations they have gained through inter-cultural and sometimes conflictual dialogue about them. Such a process of correction of norms by the contribution of hitherto marginalized or oppressed groups contributes to an understanding of how the gradual universalization of communications and interactions with globalization can expand

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normative structures and make them more solidly grounded. One-sided interpretations are displaced over time by encounters with others who bring new perspectives. These new interpretations show how past norms were narrowly drawn in the interests of the powerful and the ways they may be distorted by oppressive or discriminatory social structures. A classic case is the process of interpretation of norms of equal civil rights in the United States – with the gradual inclusion of more groups within the prevailing understanding – but many such examples can be found elsewhere. In such processes, we can observe the contribution that more universal or “many-sided” relationships (to use Marx’s phrase in the Grundrisse 5) can make to the development and fuller understanding of the norms themselves. Such concrete processes of universalization support the crucial role of open discourses and of dialogue among conflicting views in developing normative understandings and enlarging their scope. The import for Western philosophers is the need to keep interpretations of basic normative understandings open to interactive contributions from others outside the given framework. It also suggests that interpretations of human rights, if they are to bridge to concrete realities in various nation-states and emergent transnational situations, need to be brought into close connection with the specific features of the states, economies, and legal systems in question, both in terms of applicability and critique of the existing arrangements. Likewise, transnational democratic models cannot be based on notions of pure autonomy, but need to be understood as efforts to enhance differentiated agency and cooperation in the broader senses specified earlier, recognizing that such enhancements are inevitably only steps beyond the existing situation. Besides the epistemic importance of criticism and self-criticism with regard to universal norms, I proposed in Globalizing Democracy and Human Rights that increasing universalization with regard to common projects, care and solidarity, and discursive processes can affect the constitutive features of the norms themselves. I suggested that in each of these areas of interaction, universality functions as a horizon or limit notion that grows out of our encounter with others, whether individuals or groups, and recognizes our interdependence with them. Therefore, these universalizing processes are not, as Langlois claims, a mere matter of the sociological basis for the emergence of abstract norms. For him, such developments may be useful and interesting but remain wholly non-normative. In this final section of this chapter, I want to consider further how an emphasis on concrete interrelations and differences can be built into transnational norms like human rights, and I also want to take note of the universalizing role of solidaristic relations with people situated at a distance, as well as of dialogical or democratic input into decisions by others affected at a distance. I have already indicated how a positive freedom approach understands equality as equality through differences. While the capacity for self-transformative action is general and shared as a bare capacity of choice, its development (towards which it can be said to aim) is highly differentiated among individuals, cultures, and social forms, and requires appropriate institutional applications. This view accordingly expands human rights to firmly include social and economic rights that address people’s needs and that enable their development of differentiated capacities.

Reconceiving autonomy and universality 171 Because of people’s interdependence, human rights are, therefore, in principle claims on all others – though they are best realized through delimited institutional frameworks, where these be local, national, or transnational. Moreover, the social recognition of difference, including cultural distinctiveness, is also required by such a concept of agency. We can see how, on such a view, the abstract and concrete norms complement and correct each other. In the abstract norm, all should be recognized and treated with respect. This can helpfully serve as an inclusive principle, in its universal application to all human beings. Concretely, such recognition necessarily has to attend to differences as well as commonalities, with regard to needs and in the facilitation of common and individual projects and capacities. Thus, the norm concretely requires the elimination of the specific disadvantages brought about by systemic injustice or oppression. In this sense, what the norms of equal agency and human rights actually require when taken concretely is different from purely liberal interpretations of their demands. Thus, what is called for is not only abstract recognition of agency, and its protection by civil and political rights, but also recognition of relevant differences and, especially, the elimination of any disadvantage and oppression associated with these differences. Moreover, the concrete norm essentially requires specificity in institutional design to meet local conditions, whether economic, environmental, or cultural. Concrete universality thus connotes just such attention to the specific conditions for action and the various differentiated social interrelations that support people’s equal freedom. Of course, since this view applies to both individual activity and also to common or joint activities requiring access to conditions, enabling substantial opportunities for cooperation and for participation in directing its course is important as well. However, besides serving as an inclusive principle, the recognition of abstract equality (of agents and of their human rights) usefully serves as a corrective on just this multiplicity of interrelations. It does so by positing limits set by human rights on what are acceptable cultural practices. Conversely, the multiplicity of interrelations in practice over time can itself benefit self-transformative agency and individual flourishing, since individuals can draw on and appropriate an enriched stock of capacities and modes of expression. Granted, several of these practices generate conflicts as well, but sometimes (though certainly not always) the process of overcoming the obstacles and conflicts can itself contribute to flourishing. As Karl Marx aptly puts this point in his Grundrisse, “The overcoming of obstacles is itself a liberating activity” (Marx 1973: 611; discussed in Gould 1978: 105–106). It is clear, then, that processes of constructing more universalistic interconnections play an important role in this normative account. I have suggested that this has to be accomplished in practice through designing effective institutional models, as well as by supporting solidaristic movements oriented to mutual aid among people, even in transnational contexts (Gould 2007b). Such solidarity networks operate to establish connections among distantly situated individuals or associations where the members (whether individuals or associations) share a commitment to the achievement of justice, understood at least as the elimination of oppression and the

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minimization of suffering (Gould 2007b). Solidarity practices along these lines can help to motivate and further the fulfillment of human rights and instantiate social forms of recognition (Gould 2006). In this way, they give concrete embodiment to the abstract norms that require such recognition. Finally, the construction of more universalistic relations in practice helps to give new significances to the norm of democracy itself. It becomes evident that there can be multiple and alternative approaches to democratic practice, depending on the weight given to participation, consensus, and constitutions in diverse contexts. In fact, a wider range of such democratic practices can be accommodated so long as they operate within human rights frameworks, which are becoming increasingly regional in their range (where regional is understood in a cross-border sense). I have also proposed that impact on these human rights provides needed guidance for determining the appropriate scope of democratic decisions in these new transnational contexts (Gould 2004: chap. 9). The suggestion is that the differential impact of decisions – especially by the institutions of global governance – on the human rights of distant people establishes not only an obligation to avoid harming them (as others have argued (e.g. Pogge 2002)), but also a requirement of devising forms of democratic input into the decision-making process by those who are distant from the site of the actual decision-making. If people at a distance are affected in their possibilities of fulfilling basic human rights by these decisions, then they ought to be able to have some input into them. This recommendation, in turn, opens new deliberative and dialogic contexts in which norms can be interpreted and specific policies devised that seriously take into account the specificities of people’s needs and projects, in their commonalities and their differences.

Notes

2 Mature democracy and global solidarity 1 It is part of a series (with some overlaps) on the themes of moderation, constitutionalism and universal civilization. “Large Format Moderation” will appear as a chapter in Stephen Simon and Stephen Elkin (eds) Universal Justice in a Divided World. “Constitutional Patriotism and Militant Moderatio” will appear in the International Journal of Constitutional Law, and “Constitution Making at the Edges of Constitutional Order” will appear in William and Mary Law Review. I draw in these papers on Rebuilding Constitutional Order, a working paper written in 2005 as part of the Program to Develop Strategies for Failing, Failed and Recovering States (PPC IDEAS Project financed by the Bureau of Policy and Program Coordination of USAID), on Sołtan (2006), and on “Constitution-making in Fragile States,” a lecture delivered at the University of Alberta in March, 2006. They are all part of a book manuscript with the working title Deep Moderation and a New Civics. I would like to thank Anthony Langlois for his helpful comments on an earlier draft. 2 On Dewey’s problem with evil, see Selznick (1992). 3 There is more on maturity in Sołtan (forthcoming). 4 This is suggested, for example, by recent studies of civic cultures that support democracy (Inglehart and Welzel 2005). 5 You will need to forgive a quick run through a complex problem and a large literature. 6 There are also significant continuities with other forms of solidarity. So we can learn by turning to Aristotle (philia, civic friendship, see Schwartzenbach 1996; Wellman 2001) or to the model of motherhood (see Friedman 1989), or to Confucian ren (Ackerly 2005), or to the fraternité of the French revolution (Brunkhorst 2005). There is a continuity, also, with the commandments of love that are central to the moral teachings of the Abrahamic religions, or the various forms of the Golden Rule (“do unto others …”). We can find a continuity between these various formulations or moral teachings and the form of solidarity that democracy expresses and elaborates. But continuity is not identity. 7 A good way into this literature is to read Riker (1988), followed by the thorough critique of Riker’s book in Mackie (2003). 8 There are real life precedents for the procedures I discuss, e.g. the Nigerian presidential

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election rules, and discussions of them as promoting moderation. See Horowitz (1985). 9 The discussion below largely follows Sołtan (2006).

4 Global democracy through transnational human rights 1 Here I define globalization as the trend toward increasing social activity and interaction at the supranational level – international, transnational, and global; see Goodhart 2005: 26. 2 Familiarly, the “Westphalian” system, named after the city where a pair of treaties was signed that are often said to have instituted (but which, in fact, did not institute) a system of sovereign states in Europe in 1648; see Krasner 1993. 3 From the inside, the conflict appears as one between extending state control through supranational governance and preserving the sovereignty of the people; from the outside, the conflict appears as one between the all-affected principle and a conception of democratic legitimacy rooted in particularized, territorial political communities. 4 For a sample of this vast literature see Beetham and Lord 1998; Bellamy and Castiglione 2000; Decker 2002; Eriksen and Fossum 2000; Føllesdal 1998; Friese and Wagner 2002; Habermas 1995; Lehning 1998; Lord 1998; McCormick 2006; Pauly 2000; Scharpf 1999; Schmitter 2000; Siedentop 2000; Weiler 1995; Zürn 2000. 5 For a good critique of this principle that predates many contemporary discussions to do with globalization see Whelan 1983. 6 The following account draws from and expands upon that offered in Goodhart 2005. 7 The racial contract worked somewhat differently; see Mills 1997. 8 See Goodhart 2005: ch. 6. 9 Importantly, social and economic rights indicate a way to “democratize” the economic sphere without resort to central planning – itself an important source of domination throughout the twentieth century. 10 These mechanisms are vitally important to any robust conception of democracy, but they are best understood as ways of achieving democratic ends, rather than as ends in themselves; cf. Beetham 1999a: ch. 1. 11 The right of political participation expresses the idea of consent implied by freedom and equality. 12 Democracy as human rights requires no unique configuration of boundaries among jurisdictions; it only requires that those boundaries not interfere with and help to sustain human rights. It is compatible with many potential configurations, making it flexible enough to adapt to political changes. 13 On the effectiveness of existing human rights regimes and suggestions for their better design, see Hathaway 2004; Hathaway 2002. 14 This is not to ignore the significant achievements of many civil society actors in promoting human rights globally as well as domestically; it is rather to suggest that such invaluable efforts cannot, in themselves, constitute democracy. 15 Keep in mind that no objections on the grounds that human rights norms constitute non-tariff barriers to trade would apply here, since we are assuming that IFIs like the

Notes 175 WTO would be similarly subordinated to democratic norms and thus could becomes instruments of rather than obstacles to human rights enforcement. As is clear below, democracy as human rights relies on such activity. 16 Again, such institutions are necessary to guarantee fundamental human rights. On contestation and its role in countering domination, see Pettit 1997. 17 Some additional answers can be found in Goodhart 2005.

5 Exploring the narratives on economic globalization: making room for democracy 1 Manfred Steger (2002) makes a similar argument in his broad critique of what he calls the ideology of “globalism”. This chapter shares much with Steger’s concerns and adds support to his already strong case. He would, I am sure and with which I concur, add the important caveat to my piece that we be careful not to reduce globalization to a fundamentally economic phenomenon, best handled by economic and trade experts. 2 I examine other aspects of these narratives elsewhere (Moore 2003). 4 By “spaces of their everyday lives”, I mean those places and spaces in which we live, and the way which we participate, to greater or lesser extent, in the decisions that govern those places and spaces. Examples include neighborhoods and municipalities, workplaces, the associations in which we participate, and our families. These become politically important in a democratic sense to the extent to which power is exercised in the decisions that govern groups in those places and spaces (see Moore 2003: 10–37) 5 None of these critiques is particularly new. It is difficult even to give credit for the critiques because they have been made by many over the centuries. For several efforts to explore these problems from within the discipline of academic economics, see McClosky (1996; 1998); Klamer (1988); Ferber and Nelson (1993); and Caldwell (1988). 6 Ian Shapiro has critiqued this problem in the use of formal modeling in political science, and his critique is also applicable to the use of modeling in economics (2005: 1–99). 7 For a good introduction to international economics, see Krugman and Obstfeld (1997). For more thorough studies, see Krugman (1990, 1996); Dixit and Norman (1980); Stolper and Samuelson (1941); and Bhagwati (1997); and Bhagwati et al. (1998). 8 There are two kinds of economies of scale: internal and external. Internal economies of scale are efficiency gains inside a single firm from increasing production. External economies of scale are from the increase in the size of the industry not the individual firm. The monopolistic competition model is looking at internal economies of scale. An important variant on external economies of scale – the regional clustering of firms in the same industry – is discussed in Saxenian (1994), Piore and Sabel (1984), and Krugman and Obstfeld (1997: 150–3). 9 It is difficult, of course, to distinguish between the impact of market power and demand for the product in this, and in most cases. Still, it is this kind of empirical work that international economists have not undertaken to see how sound their models are. 10 The tracking of intra-firm trade is still very incomplete, with no good worldwide data. The US Census Bureau has been tracking “related-party” trade since 1991. This trade is between parties in which one party owns at least 10% (exports) or 6% (imports)

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12

13 14 15 16 17 18

19

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ownership stake in the other, and comprised about 42 percent of total US trade in goods in 2002 (Zeile 2003: 2). Intra-firm trade in services is even less well understood or monitored. I discuss both of these issues elsewhere (Moore 2003: 83–92). See also Held, McGrew, Goldblatt, and Perraton (1999: 277); Moosa (2002: 161–87); Clausing (2001); Hines (1999); and Hines and Rice (1994). Elsewhere, I examine other externality and sustainability aspects of induced trade and the disadvantages small, place-rooted businesses face when competing with MNCs (Moore 2003: 206–23). Inflation is comprised of two components: wage and non-wage inflation (e.g. the volatile food and energy price components of inflation). On the increasing wealth inequalities in the US, see Wolff (1996). Some who do pay attention to the foundational role of the state in constructing and shaping markets are Bowles and Gintis (1987: 64–120). I borrow the example from Ken Conca, who first drew my attention to this problem in a sustained manner and encouraged me to explore it further. See, for instance, Evans (1995). For more on the political construction of advantage in works on industrial districts, see Saxenian (1994) and Piore and Sable (1984). This is one of the main justifications for strong, enforceable labor, health, safety, and environmental protections in trade agreements (something in which they have been woefully inadequate). Determining reasonable tariff levels would be a messy process, not only because it would entail some degree of guesswork, but also because it would necessary to determine which advantages should count as actionable. For instance, a society that provides free primary through higher education politically constructs an advantage (more educated workforce) over those societies that provide less education. From a democratic perspective, I am most concerned with those uses of politics which reduce the capacity of a demos (the many) to effectively participate in determining decisions that will bind them. Actual cases brought under NAFTA’s Chapter 11 (Public Citizen 2001). See, for instance, Wallach (1999). These regimes were mainly having to do with governmental and legal transparency, and the costs of implementing new administrative and legal regimes. While some countries objected to perceived intrusion on their national sovereignty, the main complaints were the administrative costs of compliance with the Singapore Issues. As Stiglitz and Charlton put it, “There are significant costs associated with both the creation and enforcement of new regimes in competition policy, investment regulations, and trade and customs procedures. Many developing countries have been unable to meet their Uruguay Round obligations because of these high costs.” The Singapore Issues would have only added to this burden (Stiglitz and Charlton 2005: 60).

Notes 177 6 Judicial networks 1 Slaughter (2004: 19–22) distinguishes, among other things, between “horizontal networks” and “vertical networks.” The former involve national regulators, legislators, and judges of different countries; the latter comprise, and mediate between, national regulators, legislators and judges of different countries and their supranational counterparts. 2 Elaborates one observer, “Complicating the discussion [over the role of networks in international law] is ambiguity about the dependent variable that concerns the literature. I have so far taken it to be compliance with international law […]. An alternative view, though, is that formal compliance with positive international law is not what should concern scholars; scholars should focus on international cooperation” (Posner 2005: 801). 3 While these network types are believed to be distinct in INA, their overlapping functions have been acknowledged (Slaughter 2004: 52).

8 Trade policy openness, government spending, and democratic consolidation: a preliminary investigation 1 Cameron’s (1978) explanation is different: specialization implies the formation of larger corporations capable of achieving economies of scale. This, combined with a relatively specialized labor force, facilitates the expansion of trade unions which in turn demand greater government spending on welfare state provisions. For an overview of the literature on trade openness and public expenditures, within the context of an excellent review of the political economy of trade, see Adsera and Boix (n.d.). 2 In a similar vein, Rudra and Haggard (2005) show that, in the context of increasing trade openness, social spending is more likely to be preserved in democracies than authoritarian countries. 3 Elsewhere (Hiscox and Kastner n.d.) we review existing measures of trade policy openness more thoroughly; space constraints prevent a thorough review here. 4 First applied by Tinbergen (1962), Poyhonen (1963), and Linneman (1966) the model has been applied for a variety of purposes, such as testing for the trade flow effects of customs and currency unions; see, for instance, Aitken (1973), Sattinger (1978), Frankel (1993), Eaton and Tamura (1994), and Frankel and Romer (1999). For a review of general results, see Oguledo and MacPhee (1994). 5 As Grossman (1998) has made clear, the “force of gravity” is generated by specialization, which may have multiple supply-side sources. When economies are specialized, citizens of country i will want to buy products that are only available (or more abundantly available) from country j. The more income that residents of i have, the more of j’s goods they will be able to buy; and the more things firms in country j produce, the more things consumers in i will want to buy. The outputs of both nations thus should enter into the determination of the trade flow with positive coefficients. 6 In fact, the most straightforward theoretical derivations of the gravity model (e.g. Anderson 1979; Deardorff 1998) imply unit income elasticities.

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7 Because we use logs, we changed all 0 values to $1000, the smallest non-zero value in the Gleditsch dataset. 8 Not only were we wary of including a great deal of imputed data, but the degree of “missingness” in several dyadic trade series raises concerns about the reliability of the data actually reported for those series. 9 All trade and GDP data are expressed in millions of 1992 dollars. For countries for which substantial GDP data were missing, we applied the same rules described above in excluding from the set any countries for which data were under-reported.

9 Competitive clientalism: rethinking elections in the MENA and the prospects for democracy 1 It should be noted that the value of different types of elections, at the presidential, national legislative and municipal levels, may vary significantly. Barbara Geddes’s (2005) analysis of the role of elections, for instance, suggests that elections serve to signal the strength of the regime to opposition elites. In many cases (and especially where the ruling elites are not embedded in a dominant party regime), this logic may be more apt for presidential than national legislative elections. 2 It should be noted that Anoushrivan Ehteshami argues, somewhat contra the arguments in this article, that elections serve an important role, helping “political forces in the Muslim world learn to play by the given rules of the game …” (2004). 3 This analogy reflects the normative judgments about democracy and authoritarianism, yet these are the same judgments embedded in democratization programs. For that reason, it seems particularly appropriate. 4 Similarly, Gandhi and Vreeland (2004) find that parliamentary authoritarian regimes are less likely to experience civil conflict than their counterparts without parliaments. However, not all agree with these findings. Brownlee (2004) is more skeptical that elections help to promote the survival of non-democratic regimes. 5 Respondents were asked: “To what extent do you believe that the party is able to influence the government on the matters that pertain to its goals?” 7.34% believed it played a large role, 23.25% that it had some effect, 23.61% that it played a small role, 28.29% that it played no role in policy-making, 16.99% did not know, and 0.5% refused to answer or did not understand the question. CSS, University of Jordan, 2004 Democracy Survey, question 305. 6 2006 national survey, conducted by Lindsay Benstead and Ellen Lust-Okar with assistance of Abdallah Bedaida. 7 Reflecting this, the 2006 Algerian survey found that 29.4% of respondents believed the parliament was very effective in shaping social policies versus 23.1% for domestic politics, 17% for economic issues, and 12% for foreign policy. 8 This is demonstrated in daily conversations, as well as polls by the Center for Strategic Studies at the University of Jordan, as well as in Egypt in a survey on Civilian Attitudes toward Important Political and Economic Problems by Al-Ahram Center. In the Egyptian survey, 71.5% of the respondents believed that unemployment, high prices or low income were the most important problem facing Egypt today.

Notes 179 9 2006 Algerian national survey, conducted by Lindsay Benstead and Ellen Lust-Okar (2006). 10 The poll was conducted among 320 politically active elites, including doctors, journalists, lawyers, and politicians office, with 45.83% responding that they would seek wasta before beginning their task, and 19.16% looking for it after beginning (Kilani and Sakijha 2002: 126). Similarly, a 2005 German Development Institute survey found that of 58 business elites interviewed, 86% believed that wasta was important for doing business with public institutions and 56% of the respondents admitted to using wasta themselves. More than three-quarters of 180 low- and middle-rank civil servants surveyed believed that wasta was either very important (51%) or somewhat important (25%) in order to gain employment in their department (Loewe et al. 2006: 32, 34–35.) 11 Based on my own fieldwork in Morocco, the Palestinian Authority and Syria, and on discussions with Egyptians, Iraqis, and Lebanese. 12 Ahmed Ezz is the Director of Membership of the National Democratic Party, a member of the policies secretariat and parliamentarian. 13 Benstead and Lust-Okar survey (2006). 14 CSS, Democracy poll (2003). 15 For similar discussions, see Shehata (2008) and Tuasted (2008). 16 CSS, Jordanian Democracy Polls (2004). 17 Al-Ahram survey in Egypt, as well as discussions in Jordan, Syria. 18 Article 99 of the Egyptian constitution states that, “No member of the People’s Assembly shall be subject to a criminal prosecution without the permission of the Assembly except in cases of flagrant delicto.” In theory of, of course, this article is included in the constitution in order to provide greater guarantees for the independence and freedom of parliamentarians to question government, criticize policies, and otherwise perform their job uninhibited by the possibility of politically motivated prosecution. In actual practice, however, the immunity provided to MPs is a tremendous perk of office, commonly thought to be used unethically by parliamentarians for personal gain. 19 The infamous case of “the loan MPs” is only one example. During the two previous parliamentary sessions a number of MPs were stripped of their immunity and prosecuted for taking advantage of their parliamentary status to obtain millions of pounds in unsecured loans. Much of the money was never paid back. See the following articles by Gamal Essam El-Din in Al Ahram Weekly: “Corrupt MPs suffer court fury”, Al Ahram Weekly, June 29–July 5 2000. Here, Essam El-Din notes that, “Politically, it is expected that the harsh verdicts will thrust under sharp public scrutiny the increasing use of parliamentary immunity and political clout to make illegal profits.” See, also, his article “Corruption Shockwaves”, Al Ahram Weekly, 8–14 August 2002. “Because the defendants included five former members of parliament (MPs) from the ruling National Democratic Party (NDP),” Essam El-Din notes, “the rulings reignited the debate on MPs’ abuse of parliamentary immunity to secure ill-gotten gains.” See, too, his article “Corruption Stigma Haunts NDP”, Al Ahram Weekly, 6–12 July 2000. 20 3.1% of respondents named the IAF, 8.7% did not know, and 1.9% did not understand the question.

180

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21 Over 88% were not members, and 9.43% did not understand the question. CSS (2004): question 302. 22 Similarly, Abdelaziz Testas concludes that economic diversification is needed in Algeria in order to reduce rent-seeking behavior and promote democratization (Testas 2002.) The development of such a private sector is easier said than done. Private sectors dependent on the state (i.e. crony capitalism) only tend to diminish prospects for democratization (see, for instance, Bellin 2000).

10 Liberal autonomy and global democracy 1 The claim, for example, in the so-called Asian values debate where the idea of Asian democracy or Asian versions of human rights was promoted, is largely a bid to have both democracy and human rights without the autonomy characteristic of Western society. My argument is that this represents a conceptual error, as both democracy and human rights depend conceptually on this autonomy. One account of this is given by Seyla Benhabib, who, while arguing for multiculturalism, says democratic theorists must insist on three conditions: egalitarian reciprocity, voluntary self-ascription, and freedom of exit and association (Benhabib 2002: 19). 2 Gould also discusses these themes in Chapter 1, pages 42 and following, providing a summary of the care model on page 45. It is also engaged with in the first chapter of the second section of the book, “Embodied Politics”, where the relationships with feminist literature are more fully drawn out. Also, in the chapter on Woman’s Human Rights she has a section “Care and Human Rights”, 143 ff. 3 Gould’s approach, she suggests, is more in tune with thinkers like Will Kymlicka, Charles Taylor, Michael Hartney, Michael McDonald, Allen Buchanan, and Vernon Van Dyke. She provides this list on page 125 in a chapter which is a further discussion of cultural identity, groups’ rights, and social ontology. 4 This is true even of those values which emerge out of care relationships, i.e. definitional issues about the nature of care, for example. Moreover, many practices seen by the West to be an abuse of human rights (e.g. circumcision, being forced to live in certain ways, etc) emerge as being ways of caring for people’s “true” interests. 5 This is not surprising. As John Arthur says, “Any ‘first principles’ of justice and rights is bound to be abstract” (Arthur 2004: 51). 6 Another way of arguing the point here would be to suggest that the idea of opposing concrete and abstract universalism sends us off in the wrong direction in our efforts to bring the practical and the intellectual together. Discussions of practical reason as opposed to concrete or universal reason may be useful in overcoming what may be a false binary. See, for example, Brecher 2004. 7 “The idea of liberalism is, of course, complex and contested, but there is general agreement that liberalism involves a commitment to the following four main values or principles: the equal moral worth of individuals (issuing in a principle of equal treatment), individual liberties and rights, limited government and private property” (Crowder 2002: 22). 8 This is the issue at the heart of debates on minority rights. Of particular interest here

Notes 181 may be the unfolding debate between the positions of George Crowder (2002, 2004, forthcoming) and William Galston (2002, 2005). 9 Familiar names here are Alasdair MacIntyre, John Gray, John Kekes, and Michael Sandal. More specifically, Appiah, speaking of John Gray, says that “In pitting autonomy against diversity – in painting autonomism as the bigotry of liberals – his voice is one of a chorus.” He then goes on to list Susan Mendus, Charles Lamore, Chandran Kukathas, Bhinku Parekh, with illustrative quotations (Appiah 2005: 41–2). A take on this from another point of view can be found in Stout (2004). In my own past work, I have taken on the critique as it was expressed in the so-called “Asian values debate” (Langlois 2001).

11 Reconceiving autonomy and universality as norms for transnational democracy 1 Indeed, I consistently argued for this view during an earlier period when it was decidedly unfashionable to do so, and provoked critiques first by Marxists and then by postmodernists. 2 Hegel writes in The Science of Logic (Hegel 1969: 603–604): “As negativity in general or in accordance with the first, immediate negation, the universal contains determinateness generally as particularity; as the second negation, i.e. as negation of the negation, it is absolute determinateness or individuality and concreteness. The universal is thus the totality of the Notion; it is concrete, and far from being empty, it has through its Notion a content, and a content in which it not only maintains itself but one which is its own and immanent in it. We can, indeed, abstract from the content: but in that case we do not obtain a universal of the Notion but only the abstract universal, which is an isolated, imperfect moment of the Notion and has no truth.” 3 An impressive and helpful attempt at explication of Hegel’s view and the readings of it by Anglo-American Idealists like F. H. Bradley and Josiah Royce is given by Stern (2007). 4 The question of whether Hegel and the British Idealists themselves can be considered as social holists is discussed in Stern (2007). 5 (Marx 1973: 409). On his concept of the development of more universal relations under capitalism, see also p. 162. For a discussion, see Gould (1978, chap. 1).

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Index

abstract universalism, 15, 16, 146, 148–52, 156–8, 180 Africa, 13, 91, 130, 132 agency, 11, 15, 29, 64–6, 134, 150, 151, 154, 156, 157, 159, 160–8, 170, 171 Algeria, 134, 180 Annalles School, 36 Argentina, 13, 116–8 Australia, 2, 3, 13, 111, 116 authoritarian elections, 131–3, 136, 141, 144 autonomy, 14, 15, 58, 61, 66, 146–8, 152, 159, 160–6, 168, 170, 180, 181 Bahrain, 130 Bamako Appeal, 33, 34 Beitz, Charles, 30, 55 Berlin, Isaiah, 17 Borda count, 21–2 Breyer, Stephen (Justice), 91, 95, 96, 103–5, 107, 108–10 bureaucracies, 9, 74, 135 business, 47, 49, 50–2, 74, 76, 80, 113, 134, 137, 138, 179 Canada, 23, 24 Cancún, 80 capital, 3, 4, 9, 18, 48, 72, 74–6, 78, 80, 81, 113, 114 capital flows, 9, 74, 113 care (in political theory), 150–2, 163, 167, 170, 180 Chile, 13, 113, 116–8 China, 2, 112, 113 Christman, John, 163, 164 civic loyalty, 19 civil society, 14, 31, 64, 66, 131, 144, 159, 174 Clientalism, 13

Cold War, 41, 44, 104 communism, 17, 27 concrete universalism, 14–6, 51, 89, 99, 146–57, 160, 161, 166, 168–72, 180, 181 constructivism, 11, 97, 106, 107, 108, 110 cosmopolitan association, 150 courts, xviii, 8, 10, 11, 12, 26–8, 62, 63, 85–8, 90, 91, 93, 97, 100, 101, 103, 104, 108, 111 Cyprus, 22 Dahl, Robert, 55, 76, 131 delegation, 6, 18, 26, 27 democracy, xvii, xviii, 1–9, 12–27, 29–31, 33–41, 44, 45, 47–52, 54–68, 76, 81, 101, 102, 104, 110, 113–6, 118, 123, 124, 130, 131, 132, 142–8, 151–3, 155, 157–62, 164, 172–5, 178, 180, 181 Democratic Party, 110, 135, 179 democratic practices, xvii, 172 democratization, xviii, 1, 2, 4–6, 8, 11, 13, 14, 35, 37, 43, 49, 54, 56, 59, 60, 62, 64–7, 113, 130, 131–3, 137, 139, 140, 143–5, 178, 180 demos, 5, 6, 18, 20–5, 31, 34, 58, 176 dissent, 14 Doha Round (of the World Trade Organization), 80 East Timor, 3 efficiency, 9, 69 Egypt, 133–41, 178, 179 elites, 2, 13, 25, 37, 52, 117, 130, 133, 134, 136–42, 144, 145, 178, 179 emancipation, 8, 60, 67 enforcement networks, 10, 82, 86 Enlightenment, 26, 27 epistemic communities, 10

202

Index

equal positive freedom, 15, 16, 160, 162, 164, 167, 168 equality, 1, 8, 15, 26, 35, 39, 40, 42, 43, 44, 45, 50, 54, 56, 57, 59, 60, 62, 64, 67, 76, 113, 15–7, 161, 162, 164, 165, 167, 168, 170, 171, 174 essentialism, 14, 146, 149, 154, 155, 157, 168 Europe, 28, 43, 55, 100, 104, 174 European Court of Human Rights, 8, 62 European Union, 10, 22, 24, 26, 46, 47, 58, 65, 67, 80, 87, 89, 100, 108 federalism, 24, 26, 27, 54, 96, 110 foreign policy, 11, 12, 95, 96, 98, 99–105, 107, 108–10, 178 freedom, 8, 15, 16, 54, 56, 57, 59, 60, 62, 64, 67, 90, 154, 156, 157, 159, 160–68, 170, 171, 174, 179, 180 French Revolution, 27, 28, 95 Gandhian, 6, 18, 29, 31, 32, 33, 34 General Agreement on Trade and Tariffs (GATT), 79 George W. Bush, 3, 130 German Constitutional Court, 86, 87 Germany, 17, 87, 89, 91 global institutions, xvii, xviii, 8, 34, 63 global jurisprudence, 10, 88, 89, 91 Global Solidarity, 6, 31, 32, 33, 34 globalist turn, 11, 98, 110, 111 globalization, xvii, xviii, 4, 7, 8, 16, 18, 26, 29, 30, 33, 35, 36, 37, 41, 45, 47, 50, 52, 54, 55, 57, 58, 59, 60, 61, 68, 75, 81, 82, 96, 99, 101, 102, 103, 105, 109, 110, 111, 145, 150, 169, 174, 175 Goffman, Erving, 166 Gould, Carol, 14, 15, 16, 54, 58, 93, 146–65, 168–72, 180, 181 governance, xviii, 51 government spending, 12, 13, 112, 114–8, 121, 122, 123, 126, 127, 129, 177 Great Transition, The, 36–7, 52–3 gross domestic product (GDP), 116, 118, 120, 178 harmonization networks, 10, 82, 86, 88, 90, 91 Heckscher–Ohlin Factor (H–O) Model, 71 Hessen, Sergey, 17 Hobbes, Thomas, 56, 59, 163 human rights, xviii, 2, 6, 8, 12, 14–6, 27, 30, 31, 47, 54, 59, 60–7, 88, 104, 106,

107, 146–8, 151–62, 164, 166–72, 174, 175, 180 idealism, 3, 11, 97, 105, 107, 108, 110 India, 2, 13, 86, 116 Indonesia, 3 Industrial Revolution, 36, 37 information networks, 10, 86 International Criminal Court, 57, 58, 63, 64, 92, 93 international law, 10, 11, 42, 43, 82–6, 88, 90, 91, 93, 94, 98–101, 104, 107, 111, 177 International Monetary Fund (IMF), 57 international network analysis, 10, 8–9, 91–3, 177 international relations, 4, 6, 11, 12, 28, 39, 41, 43, 44, 52, 96, 97–9, 101–3, 106–9, 110 international trade, 9, 68, 7144, 77, 96 Interpol, 10, 89 intersociation, 150 Iran, 137, 139, 140 Iraq, xvii, 2, 3, 4, 22, 107, 110, 132, 135, 139 Islamic Action Front, 136 Italy, 90 Japan, 80 Jordan, 120, 130, 133, 134, 136, 137, 139, 140, 141, 142, 143, 178, 179 judges, 95, 96, 97, 99–104, 106–11 judicial independence, xviii, 85 judicial networks, 10, 82, 85, 87, 93 justice, xviii, 15, 17, 30, 62, 63, 87, 91, 151, 153, 154, 162, 171, 173, 180 justices (see judges) Kahn, Herman, 35, 36, 37, 38, 52 Kant, Immanuel, 163 Kołakowski, Leszek, 17 Kuwait, 130 Langlois, Anthony J. 15–17, 14–8, 16–3, 169–71, 174 law, xviii, 20, 21, 105, 108, 109, 111, 173 League of Nations, 43 Lebanon, 22, 135 legitimacy, 2, 6, 18, 21, 25, 26, 27, 28, 29, 34, 45, 57, 83, 100, 131, 132, 152, 174 Lenin, Vladimir Ilyich, 31 liberal individualism, 15, 16, 160, 161, 162, 163, 168

Index 203 liberal theory, 14, 102, 146, 150, 151, 153, 159 liberalism, 11, 15, 97, 99, 102, 104, 106, 108, 146, 155, 159, 16–3, 180 Lijphart, 22, 26 Lipset, Seymour Martin, 113, 123, 131 Lisbon Treaty, 24 Locke, John, 56, 59, 163 Macpherson, C.B., 163 market, 9, 10, 18, 30, 34, 46–48, 69, 70, 71, 72, 73, 74, 76, 77, 78, 80, 82, 83, 90, 101, 112, 114–9, 138, 175, 176 Marx, Karl, 59, 163, 170, 171, 181 Middle East, 2, 13, 130, 131, 132 Mill, John. Stuart., 59, 158, 163 Mitrany, David, 7, 41–4, 50, 53 moderation, 5, 6, 17, 18, 31–4, 173, 174 monopolistic competition, 9, 71–3, 175 moral pluralism, 5, 17 Multinational corporations, 74, 176 negative liberty, 163 neo-liberalism, xviii, 33 networks, 10, 12, 33, 46, 65, 82, 83, 84, 86–91, 106, 108, 109, 150, 171, 177 New Deal, 95, 96 New Zealand, 13, 116 Non-governmental organizations (NGOs), 1, 51 norms, 5, 8, 10, 12, 14–6, 38, 47, 62, 64, 65, 66, 90, 92, 106, 107, 148, 150–2, 157, 160–72, 174, 175, 181 North American Free Trade Agreement (NAFTA), 73, 75, 79, 176 Nussbaum, Martha, 30, 148, 150, 151, 155, 157, 162, 169 oligopolistic trade, 9, 73, 74 Oman, 130 Palestine, 138 parliaments, 13, 14, 62, 131, 135, 139, 140, 142, 178 party membership, 136 patronage, 13, 14, 117, 131, 133, 139, 141–5 popular sovereignty, 8, 20, 27, 56, 58 power, xvii, xviii, 1, 5–9, 11, 17, 21, 25–3, 40, 41, 43–5, 49, 50, 52, 54, 64, 65, 68–79, 81, 83, 97–102, 131, 139, 142, 144, 145, 148, 149, 155–7, 164, 175 progress, 5, 19, 35, 40, 42, 43, 70, 91, 95, 103, 137

Qatar, 130 Rawls, John, 17, 20, 21 realism, 11, 28, 35, 97, 98, 100, 101, 106, 108, 158 realpolitik, 11, 44, 98 recognition, 4, 10, 15, 20, 22, 25, 52, 91, 92, 93, 153, 156, 162, 165–9, 171, 172 regimes, xvii, 1, 4, 5, 13, 14, 25, 47–52, 64, 66, 69, 100, 113, 115, 116, 118, 121, 130–3, 135, 136, 139, 140, 142, 144, 174, 176, 178 relativism, 147 Republican Party, 110 Ricardo, 70, 71, 72, 78 rule of law, xviii, 34, 82, 86, 90, 101, 102, 104, 105, 107, 108, 130, 134 Saudi Arabia, 144 Scalia, (Justice), 96, 100, 105, 109 Scandinavia, 13, 116 Security Council, 29, 44 self-transformation, 154, 156, 165–8 Singapore, 80, 176 Slaughter, Anne-Marie, 10, 63, 82–91, 93, 101–3, 106, 108, 109, 177 small government, 123, 126, 127 Smith, Adam, 47, 54, 70 social ontology, 15, 150, 151, 153, 160, 162, 180 social security, 12 socialism, 17 solidarity, 5, 6, 17–23, 29, 31, 33, 58, 150, 151, 170, 171, 173 South Korea, 113 sovereignty, 7, 8, 20, 26, 27, 31, 41, 50, 55, 56, 57, 58, 59, 61, 62–4, 67, 98, 101–3, 174, 176 Soviet Union, 17, 44 Spain, 13, 116 standards, 8, 42, 44, 47, 48, 68, 79, 81, 84, 100, 106, 117, 146, 154 Syria, 132, 133, 135, 139, 140, 179 Taiwan, 113 tax, 9, 74, 78, 81, 113, 114 Tilly, Charles, 36, 39, 49 trade flows, 119, 120, 121 trade liberalization, 113, 116 trade openness, 12, 13, 112–6, 126, 127, 177 transnational corporations, 57, 62, 63, 64, 65

204

Index

transnational institutions, xviii, 160 Trevi Group, 10, 89 Trade Related Aspects of Intellectual Property (TRIPs), 79 Tunisia, 136 Turkey, 113, 139

values, xviii, 5, 6, 14, 30, 34, 39, 47, 49–3, 58, 90, 91, 98, 99, 102–4, 106, 107, 110, 120, 122, 123, 126, 146, 148, 149–3, 157, 158, 159, 164, 178, 180, 181 voters, 2, 133, 135, 137, 138, 140

United Kingdom, 2, 89 United Nations, 2, 3, 29, 43, 44, 50, 57, 63, 87, 89 United States of America, 2, 7, 11–13, 14, 44, 49, 91, 95, 96, 99, 100, 103–8, 110, 112, 116, 145, 170 Universal Values, xviii universality, 14–8, 59, 61, 107, 146–7, 160, 161, 165, 167–71, 181 Uruguay Round (of the World Trade Organization) , 79 USAID, 14, 131, 173

wasta, 134, 135, 137, 138, 143, 144, 145, 179 welfare states, 114 West, 14, 37, 144, 146, 147, 158, 159, 180 Westphalian system, 4, 7, 43, 54, 56, 57, 174 World Bank, 34, 57, 90, 99, 103, 118 World Social Forum, 6, 33, 34 World Trade Organization (WTO), 57, 79, 80, 175 Yemen, 130