Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law

The globalization process has changed the nature of the “social.” Social interactions have become much more varied and flexible—transgressing traditional political and cultural boundaries (and expectations). The emergence of new forms of global law, which evolve and operate across these traditional lines, is a major aspect of globalization. This expanding network of transnational “legalities” is not based on a coherent set of normative or institutional hierarchies. Rather, it represents a highly pluralistic mixture of legal regimes, with variable organizational and thematic structures: from state-oriented systems—such as the dispute settlement system of the WTO, or the adjudicative system of the Law of the Sea Convention—to hybrid or private regimes. The latter category includes, for example, the expanding field of technical standardization, the new governance structure of the Internet, and the field of transnational arbitration. The globality of these systems stems from their (parallel) claim for universal validity, and from the cosmopolitan nature of their thematic horizon (which means that their normative effort is directed primarily at global issues).

Many of these new global legal structures have evolved in response to the needs of the global economy, with its adamant push for a system free of regulatory barriers. The normative outlook of these systems, however, is not limited to the economic domain. It has significant spill-overs, with wide-ranging social implications, from environmental to cultural. The influence of these systems over the life of the global citizenry has increased substantially over the last decade. The WTO legal system, for example, has addressed disputes involving difficult environmental dilemmas—from the risks associated with the use of synthetic growth hormones in cattle, to the damage caused to sea turtles by shrimp trawling, to the risks associated with the industrial use of asbestos. International standards-setting organizations, such as the International Organization for Standardization (ISO) and the Codex Alimentarius Commission, have been involved in the production of controversial standards, such as the ISO environmental management standards (the ISO 14000 series) and the Codex Commission’s evolving standards on foods derived from biotechnology.

The affinity of these global legal structures to economic interests has adversely influenced their sensitivity to “civic” concerns and has been subject to extensive criticism in both grass-root and academic circles. The recent protests against globalization—from Seattle 1998 to Quebec and Gothenburg 2001— were driven by a deep skepticism of the legitimacy of these a-national legal structures, and a conviction that their decision-making procedures should undergo deep reform. What emerges from these protests is a profound aspiration for a “voice”—for greater civic involvement in these global processes of norm production. The critique of this evolving network of legal governance has been fierce. Thus it was argued, for example, that the alliance between the three Bretton Woods institutions (the WTO, the World Bank and the IMF) and the Multinational Enterprises community is imposing upon the global society a new form of “faceless” tyranny, which is driven by uncontrollable and (socially) inattentive economic rationality, and is governed by a dubious regime of “unaccountable ‘experts’ adjudicating behind closed doors.”

This demand for a voice presents the global community with a difficult dilemma. While it is hard to question the urgency and genuineness of this aspiration, casting the demand for a voice in a coherent theoretical or pragmatic form remains a difficult task. Two questions seem to lie at the heart of this difficulty. First, what does the notion of “legitimacy” mean in the transnational context? Second, in what sense does the call for “democratization” solve the problem of “legitimacy”? These difficulties point to the deep problem of the association between legitimacy and democracy at the transnational level.

This article seeks to confront this problem by taking a closer look into this coupling. In its first part (sections I to III) the article reviews some of the more prominent responses to the challenge of transnational legitimacy: from the Westphalian-inspired concept of “indirect democratic supervision,” to the more universalistic ideas of “NGOs-led democratization” and “directly deliberative democracy.” This article argues that none of these narratives provides a convincing response to the democracy/legitimacy puzzle. In its second part (sections IV and V), the article develops an alternative interpretation to the problem of legitimacy (and its resolution), drawing on the ideas of “normative creativity” and “social pluralism.”

Before proceeding with the argument, it is important to take a closer look at the idea of “legitimate law” (or “authority”). One possible approach to this concept views the question of legitimacy from a functional or substantial perspective: to the extent that a transnational norm promotes the common good, it should be seen as legitimate. From this perspective, the process leading to the adoption of a certain norm is not relevant to the question of its legitimacy. Under this account, democracy has no role in the creation of legitimacy: the question is rather which set of criteria constitutes the best expression of the common good. There are numerous answers to this question—from economics to science and religion—each with its own community of experts. The declining trust in experts and professional expertise, however, has eroded significantly the power of expert knowledge to provide privileged accounts of the common good and, hence, to serve as a source and arbiter of legitimacy.

The broadening acceptance of the democratic ideal in contemporary (global) society means that the legitimacy of transnational regimes is judged, increasingly, by the nature of the process that led to the regimes’ creation, and by the public accountability of those who implement them. This tendency reflects a widely-shared expectation that the people affected by a certain normative structure should be involved in its design and implementation. Legitimacy is seen as a measure of consent and control. The continuing protests against “globalization,” then, seem to be motivated by a feeling that the current political map does not provide an adequate response to this widely-shared expectation. This political failure is twofold. On one hand, despite all the talk about globalization, we still lack the necessary institutional mechanisms that could enable a world- wide democratic experience. There is no global political center from which the legitimacy of transnational norms (and the systems that produce them) could be derived. On the other hand, the institutions of the “nation-state”—which still operates as the main locus for political action—offer no real solution to this global deficiency (in contrast to what is postulated by the Westphalian paradigm).

The increasing dissatisfaction with the traditional mechanisms of legitimization (from professional expertise to the institutions of the nation-state) points, then, to the importance of developing alternative accounts of legitimacy. This challenge is taken here. The article is organized as follows. Part I examines in more detail the structure of one of the new domains of transnational law—that of technical standardization. It looks, in particular, into the role of one key player: the ISO. This short case study explores two questions that underlie the broader concerns of this article. First, to what extent does this new normative domain raise issues of public concern? How critical is the encroachment of the ISO into the civic domain? Second, to what extent does the decisionmaking structure of the ISO provide opportunities for public participation? Part II provides a more detailed critique of the Westphalian narrative and its legitimization argument (the notion of “indirect democratic supervision”) and argues that this narrative fails to provide an adequate response to the challenge of legitimacy.

Part III considers the more universalistic approaches of “NGO-led democratization” and “directly deliberative democracy”. While these two responses offer a challenge to the state-centered logic of the Westphalian model, both remain unconvincing in their attempt to resolve the legitimacy/democracy puzzle. Part IV looks more closely at the theoretical underpinnings of the idea of “directly deliberative democracy”. It argues that none of the possible pathways that lead from democracy—in its directly deliberative interpretation—to legitimacy are convincing. The fragility of the legitimacy/democracy connection points, then, to the need for an alternative understanding of legitimacy, for another standpoint from which to observe the current calls for the democratization of transnational law. The section concludes by putting forward such an alternative viewpoint, drawing on the idea of “creative norm-making” or “creative institution.”