Exercising Public Authority Beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies?

The question of the legitimacy of exercising public authority, or more precisely, the legitimacy of governance or government, has been discussed since ancient times. There is a formidable host of literature on the topic, written by philosophers, political scientists, sociologists, and—last but not least—legal scholars. Not surprisingly, the debate over the meaning and the theoretical foundation of the concept of legitimacy has been, and still is, quite controversial. Furthermore, the meaning of legitimacy in the exercise of public authority and its foundation has changed with changing social and political conditions over time. To mention but a few important changes: legitimacy of the rule of kings and princes in the medieval feudal order had a different meaning from the legitimacy of kings or princes after the emergence of the modern territorial state; and even greater changes occurred in the post-French Revolution era and the late nineteenth century under the impact of legal positivism, when metajuridical foundations of the legitimacy of public authority became no longer acceptable. In our time, dealing with the problem of the legitimacy of public authority has become additionally complicated because under the impact of globalization—understood as a process of denationalization—public authority is no longer exclusively exercised within clearly defined territorial entities, i.e. within the sovereign states. Rather, the “production of public goods” or the performance of hitherto genuinely state tasks, like external security and economic and social welfare, has been shifted, in part, to international and sometimes supranational non-state entities that are constituted by states, but have their own legal status and capacity to act alongside the states. In other words, we are facing a multilayered system of governance in which public functions are performed by states (including internationally active substate units like member states of a federal state, or even local communities and by international and supranational organizations, supplemented by the increasingly important activities of non-governmental organizations that participate in international decision- and law-making and in the enforcement of international law. The challenge posed by these developments with regard to the legitimacy of the exercise of public authority is all the greater because we cannot simply transfer the traditional strategies of legitimizing public authority to the transnational entities that wield public authority within the multilayered system of governance. A simple transfer is impossible because the traditional concepts of legitimacy, particularly those developed since the establishment of the Westphalian state system, are almost inherently state-centered. The result is that in the present debate over the “democratic deficit” of the European Union/European Community (EU/EC), there are vociferous critics who simply deny the possibility of a genuinely democratic legitimation of this supranational public authority. The critics argue that the EU/EC lacks a homogeneous nation, on the one hand, and statehood, on the other hand. In short, this position denies the possibility of transnational democracy a limine. To reject this position as dogmatist does not mean to deny that there are indeed serious theoretical, but also mostly practical, problems to be solved in order to realize transnational democracy. We shall come to that shortly.

The fact that, in the search for strategies to strengthen the legitimacy of the exercise of public authority, beyond the state, democratization of the inter- and supranational institutions has so far received the most attention must not make us lose sight of the fact that there are other approaches to legitimizing acts of public authorities. Some of these are related to the concept of democracy or, depending on how democracy is defined, are an essential part of democracy, like transparency and accountability. Others are independent of democracy, but nevertheless relevant means to establish legitimacy. Thus, the paper will proceed as follows. Part I provides a concise overview of the development of the concept of legitimacy and its present understanding. Part II will deal first with the issue of transnational democracy as a means to legitimize the exercise of public authority beyond the state, and then with alternative strategies or approaches to the legitimation of transnational public authority. A concluding section will argue that both transnational democracy (or at least elements of it) and alternative approaches are necessary gradualist and reformist ways of coping with the problem of legitimizing the increasingly important and effective exercise of public authority beyond the state.