4.3. Democratic

Democracy is most often associated with the political system of liberal democratic states. However for the liberal, democracy is not an end in itself but rather a means of securing the greatest possible measure of justice for the individual. There may in fact be other forms of government that would secure this end just as well: for example, libertarians posit that a minarchic (minimal, near-anarchistic) government could do so.[1] Conversely, a democracy would not serve this end as well if it were permitted to degenerate into a tyranny of the majority,[2] which may require an hierarchical hand to restrain their excesses.

Even so, mainstream liberal democratic theory turns on the assumption that it is through some form of democratic government coupled with the recognition of individual civil and political rights, that its citizens’ freedom to exercise their autonomy may be maximised. At the root of this assumption is that democratic government best provides citizens with freedom of self-determination; that “citizens should always be able to understand themselves also as authors of the law to which they are subject as addressees.”[3] Put even more simply, following Locke, it is to ensure that at some level government operates with the consent of the governed.[4] This will be described here simply as “the democratic principle.”

As democracy is thus an instrumental rather than a primary good for liberals, it is necessary for them to construct a theory by which the democratic principle can be shown to support their fundamental moral intuition of the primacy of the value of human autonomy. One of the most popular such theoretical models, common to Rousseau, Kant and Rawls amongst others, is that of the social contract. This is a thought-experiment by which one considers what constitutional principles a society would consensually adopt if it it found itself in an anarchistic original position (in Rawls’ case, without its members even knowing their own capacities and preferences).

An alternate model by which the democratic principle can be supported is that of discourse theory, of which Habermas is the most prominent scholar, and which will be discussed in more detail below. But at root, this and all other liberal models of democracy serve the same purpose: to demonstrate that a democratic system of government fulfils the liberal moral intuition that any interference with a person’s liberty requires their consent.[5]

However, what democracy means for a liberal democratic nation state is not necessarily the same as what it means for a multi-stakeholder governance network. Notions such as “one vote, one value” and an institutionalised rule of law may well be quite foreign to a context in which collectivities join individuals as stakeholders, and in which the only decisions made are non-binding.

In particular it was already observed at Section 3.2.4 that governance networks are likely to lack the institutional guarantees that liberal states provide of representativeness (such as universal suffrage and regular elections) and of accountability and transparency (such as the separation of powers, judicial review and freedom of information legislation). What, then, are the criteria for a governance network that would satisfy the democratic principle, outside of the nation state? To answer this question by examining the essential nature of liberal democratic governance is the purpose of this chapter. This endeavour will be conducted under the four headings of representation, consent, transparency and accountability, and inclusion.

Under the first heading we will consider what it means for a governance network to be representative (or “democratic” in the narrowest sense). A point that will be made in that discussion is that one of the usual characteristics of the representative democratic model, that is a deficiency from a liberal perspective, is that it is possible for the rule of a majority to override minority interests.

Under the heading of consent, we will consider ways in which this deficiency can be addressed. Whilst consent is an overriding principle, in this context it is used to illustrate how participatory forms of democracy, such as deliberative democracy, can help to include all affected viewpoints, including those of minorities, in the democratic decision-making process.

Next, the related issues of transparency and accountability will be considered. The importance of accountability lies in the fact that as Aristotle observed, in its absence pure democracy is liable to regress into oligarchy. The essence of transparency on the other hand is that democratic justice must not only be done, it must also be seen to be done (nemo judez in sua causa, in law Latin). When both transparency and accountability are assured along with representation and consent (in the sense given above), one is left with a system of governance which operates in accordance with the consent of the governed, through a process by which their interests are considered rather than just aggregated, and the adherence of which to these standards is demonstrable.

This leaves the remaining issue of inclusion, which concerns the fact that even if procedures exist to institutionalise the other principles of liberal democracy, these will be to no avail if the governed do not take recourse to those institutions. Here, the Internet is both an example of how participation in democratic governance may be extended, and of its limitations on account of the so-called “digital divide.”

If, at the conclusion of the chapter, it is resolved that a governance network can be structured that is democratic in every important sense of the word, then the result will be a holy grail of transnational governance—the flexibility and balanced legitimacy of a network, with the procedural justice and accountability of a liberal democracy.

Notes

[1]

Nozick, Robert, Anarchy, State and Utopia (1974)

[2]

Hayek, F A, The Road to Serfdom (1976), 53

[3]

Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), 449

[4]

Locke, J, Two Treatises of Government (1963)

[5]

A contrast is provided by the main competing broad theoretical conception of democracy, which is the civic republican model (see generally Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995), 6–7). Civic republicanism emphasises the duties of citizens over their rights, as on this account it is through active citizenship (that is, participation in public affairs) that the democratic republic is constituted and sustained. Today communitarians are the intellectual successors of this political philosophy.

Whilst the civic republican model of democracy is mentioned for completeness, it is the dominant liberal conception of democracy that will mainly be discussed here, as it is this model that prevails within the international legal system (as illustrated for example in the prominence of the discourse on human rights, and the absence of a balancing discourse on civic responsibility).