Wednesday, January 28, 2009

A little more on networks...

Following up on my earlier post below, I wanted to flag quickly an interesting contribution by Kenneth Anderson over at Opinio Juris on "The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy". He makes a number of important points, prime among which, for me, is the following:

...accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability.

The rest of Anderson's post is essentially an argument in favour of restricting the functions of transnational networks of government networks to that of "coordination" between States (presumably excluding, then, the type of normative production that characterises the activity of, say, the Basel Committee), on the grounds that it is only in doing so that the members of such networks can remain sufficiently tied to the (national) democratic legitimacy that alone can justify their exercise of public power. What I think this argument - important though it undeniably is - misses is that, when we make the necessary distinction between accountability and democratic legitimacy, we are also, to my mind at least, opening up space for at least the possibility that there may be valid forms of legitimacy that are not democratic in nature, and that may be able to justify a more extended role for networks beyond that which democratic considerations alone could do.

The existence of these different forms of legitimacy is perhaps most important within the sphere of global governance; indeed, for some time now I have been convinced that notions of democracy can only at present (and for the foreseeable future) play a fairly limited role in justfying the adoption of global administrative law rules, and that appeal thereto should consequently be limited. Amongst other things, it is far too simple to criticise, and basing the entire project thereon makes its normative basis appear far more vulnerable than it actually is.

The key reason for this is that there exists no global (or, indeed, regional, with the possible exception of the European Union) demos to which "democratic legitimacy" can refer. All attempts to decrease the democracy deficit in global governance, then, must do so by reference back to national, or perhaps local, constituencies, by strengthening the "delegation" between them and the global governance bodies in question. That this is extremely difficult - even in the context of highly formalised international organisations - is by now almost universally agreed; however, there is significantly less agreement on the proposition that no administrative activity can be undertaken by IOs that is not justified by a strong chain of democratic delegation or representation (which strikes me as the logical consequence of Anderson's position). On the contrary - and this is one of the central insights of the GAL project to date - legitimacy can be improved by increasing the responsiveness of global governance bodies to the interests of those upon whom their activities impact. This is, in many ways, an "interest representation" model of administrative law, removed from the domestic context in which it was developed and writ global; and it is ultimately justified not on the basis of a claim to democratic legitimacy, but rather on an appeal to fairness and/or individual rights.

Nor is this the only form of non-democratic legitimacy that may be of relevance. Like it or not, a legitimate - indeed, important - goal of global governance is that it be effective. Informal networks of governmental officials often have siginifcant advantages over the more cumbersome, traditional IOs in this regard; and, where these bodies are generating high-quality and effective regulation, particularly in the less politically charged fields, then this alone might, in some circumstances, be sufficient to render such bodies legitimate, even if there is no apparent democratic justification for their activities - at least, I see no conceptual reason why that should not be the case. Unless, of course, we begin with the premise that all public power can only be legitimated democratically; this, however, is far from self-evident normatively, and clearly false historically and empirically. It would leave little if any conceptual room for legitimating the governance by global administrative bodies of the type that is so widespread today.

Of course, as I pointed out in my previous post, the advantages brought by the flexibility and adaptability of such networks are (at least) counterbalanced by the risks of the same - without appropriate safeguards, including transparency and accountability mechanisms, there is little to suggest that they will not be flexed and adapted in thoroughly inappropriate ways. As Anderson importantly points out, however, the very presence of these protections does not eo ipso increase democratic legitimacy; indeed, in most GAL situations, describing them even as "democracy surrogates" strikes me as misleading. Accepting this, however, is only the start - and not the end - of a difficult discussion on the legitimacy of global governance structures, networks included.

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