3.4.1. The legitimacy of authority

Calls for broader participation in transnational public policy-making generally flow from criticisms either of the effectiveness, or the legitimacy (or both), of those processes when dominated by intergovernmental bodies. The question of the effectiveness of rule-based governance has already been dealt with at some length in previous chapters and will be revisited at Section 3.4.2,[1] but the issue of legitimacy will be addressed here.

Authority and legitimacy are closely related concepts. One simple definition of authority is that it is legitimised power.[2] That authority can be multi-layered is not a novel concept, even to the Westphalian international lawyer; since even assuming that the nation state is autonomous within its sphere, authority is also exercised at other levels ranging from the family, the church congregation, the classroom and the workplace, to the market and the intergovernmental arena.[3] Naturally the governance exercised at each level is not necessarily of the same type—governance by rules may predominate at one level, by norms at another, and so on—yet they can all be equally legitimate in their respective spheres.

Understanding this, the concepts of legitimacy and effectiveness can be brought back together, in that legitimacy is one of the factors that makes authority effective. The legitimacy of an actor is that which induces those to whom it addresses its authority, to accept it. Thus Franck speaks of legitimacy in an international law context as

a property of a rule or a rule-making institution which itself exerts a pull towards compliance on those addressed normatively because those addressed believe that the rule has come into being and operates in accordance with generally accepted principles of right process.[4]

In a broader context, this is the “belief in legality” which Max Weber isolated in 1909 as the main ground of legitimacy for a social order, and which forms the basis for legal (sometimes called “legal-rational”) authority. The three other sources of legitimacy identified by Weber were tradition (upon which “traditional authority” rests), affectual faith (based on an emotional response to the charismatic authority of a leader), and value-rational faith (in which the validity of the authority has been deduced as an absolute—natural law is given as an example).[5]

Thus for Weber, different forms of legitimacy can ground the exercise of authority in the three spheres of state, economy and society. So it is too, in the present context, that the three stakeholder groups who dominate those spheres—governments, the private sector, and civil society—draw their legitimacy as actors in transnational public policy governance from different sources.

It is for this reason that moves to involve the private sector and civil society in transnational governance are intended to do more than plug the holes in the representativeness of intergovernmental fora. That would imply that a single stakeholder group would suffice if only the group’s composition could be made adequately representative. Rather, the effect of such reforms is to balance the legitimacy of the government stakeholders with those of the other groups.

What, then, are the sources of legitimacy from which the three stakeholder groups draw their authority? This question will now be addressed, taking each stakeholder group in turn.

3.4.1.1. Governments

As the legitimacy of individual states in transnational governance and that of intergovernmental organisations differ conceptually, they will be treated here in turn, beginning with that of states.

Since Westphalia, states drew their legitimacy from their claims of territorial sovereignty, which for Weber is a form of traditional authority.[6] It is on this basis too that states claimed a monopoly on the legitimate use of international violence.[7] One of the characteristics of traditional authority is that citizens’ recognition of the state’s authority is largely habitual,[8] so that states do not actually need to exercise physical coercion in order to secure widespread compliance.

Increasingly however, in the post-Westphalian age, states must ground their legitimacy in something more than tradition, by showing that their authority has been conferred democratically (which is a legal-rational basis, for Weber). For example, democratic rule is now an important criterion for the recognition of a new state, particularly if it wishes to exercise the unfettered right to participate in international affairs.[9] The primary ground upon which a state authority is now seen as legitimate is therefore that its government represents the interests of its citizens.

This is not to say however that the state fully and transparently represents all of the interests of its citizens, for if it did there might be no need of the other other three stakeholder groups. To so argue would assume that once the people have vested their authority in the state, they have somehow disposed of it altogether. The contrary position is that there remains “the possibility of authority and legitimacy being relocated and the right to engage in coercive action thereby being redefined.”[10] For one thing, the Internet has facilitated citizens’ creation of and participation in new transnational civil society networks which coincide with no one state’s territorial reach.

True it is that a state can still indirectly exercise control over such civil society networks by reason of its authority over those of the networks’ members within its borders, but for it to do so is no more a legitimate exercise of its authority than it would be for the European Commission to seek to control the participation of EU member states in the United Nations. Citizens, like states, can divide their loyalties, and the civil society networks that they choose to participate in, also like states, are social entities in themselves, more than just the sums of their members.[11] Such transnational social entities are not legitimate subjects of any territorially-based authority. Post writes:

The proper presumption for a Liberal theory would seem to be a presumption of a-territoriality; a law’s reach is confined and bounded ultimately by the network of those who have participated in its adoption and consented to its application. If that network is itself bounded or defined by physical geography, the presumption of territorial reach and the power of the territorial agent is well-founded, if not, not.[12]

Thus states, whilst legitimate in their sphere, cannot be the only legitimate actors in transnational governance.

As for intergovernmental organisations, the legitimacy of their authority is inherited from that of their member states. What intergovernmental organisations contribute on their own account is not legitimising force, but the expertise of their secretariats, and their instrumental value as a forum for discussion and an enabling infrastructure for state action.

However there is a significant problem with their inheritance of legitimacy from that of their member states, namely that it is weakened in its derivative form. The further removed the processes of intergovernmental organisations are from the ultimate source of their legitimacy—the people—the more liable they are to charges of suffering from democratic deficits.

In a truly representative intergovernmental organisation, policy would bubble up from the norms and practices of states as implemented by the citizens’ elected representatives, into intergovernmental fora, to be debated and in due course adopted as international law. But in reality, the reverse is often the case. That is, public policy is often generated in intergovernmental organisations in advance of it being adopted by states.[13]

This is made explicit in the Convention on the Elimination of All Forms of Discrimination against Women[14] which requires signatories to take all appropriate steps:

To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Thus one of the most commonly voiced criticisms made by the anti-globalisation movement of governance by intergovernmental organisations such as the WTO, the World Bank and the IMF is that they are undemocratic.[15] Whilst there are many ill-informed and isolationist voices within the anti-globalisation movement, on this particular point there is accord with many mainstream commentators, and even within the UN.[16] Paulus writes,

The reliance on democratic principles and the consent of the governed, which legitimize political decisions in the Western tradition, are of little help in international affairs. The “democratic deficit” of international organizations is a commonplace. Rather, the international lawyer must justify his authority by the acceptance of the results of his activity by his audience and addressees, in particular states, and increasingly non-governmental actors.[17]

But is the perceived democratic deficit within intergovernmental organisations, commonplace as it may be, truly inevitable, or is there in fact scope for intergovernmental organisations to be made more representative? Reformists such as the Campaign for a More Democratic United Nations (CAMDUN)[18] and the World Federalist Movement,[19] along with many international relations scholars, believe that there is (whilst admitting that “in the end, there is no single answer”).[20]

The first-mentioned groups above are amongst those which have called for the establishment of a United Nations Parliamentary Assembly (or Global Parliamentary Assembly, or Citizens’ Assembly) to exercise popular oversight over the activities of the UN.[21] Such calls are not new,[22] but have been growing louder in recent years, most notably with the European Parliament issuing a resolution in June 2005 in which it called:

for the establishment of a United Nations Parliamentary Assembly (UNPA) within the UN system, which would increase the democratic profile and internal democratic process of the organisation and allow world civil society to be directly associated in the decision-making process ...[23]

It is said by its proponents that such a body would increase the legitimacy of the United Nations, provide a new mechanism for the enforcement of international law, and perhaps even defuse international conflict.[24] Most likely, such a body might begin with only advisory powers, but could be inclined as the European Parliament has been, to accumulate power through the moral force that it is perceived to inherit from its democratic composition.[25]

Other intergovernmental organisations have been subject to similar calls as the UN to become more democratically accountable to citizens;[26] particularly the EU in which the unelected European Commission’s powers are wide-ranging.[27] In March 2002 an intergovernmental conference was convened, along with a forum for the reception of non-state views, to discuss the preparation of a new constitution for the European Union to supersede the existing EU Treaties.

The draft constitution that resulted[28] would have provided a mechanism whereby the Commission could be requested to consider any legislative proposal put forward by a petition of one million citizens.[29] However, whilst the constitution was eventually signed in October 2004, it failed ratification by referendum in France and the Netherlands, leaving it in a state of limbo which continues to the present.

3.4.1.2. Private sector

The private sector draws its legitimacy from the superior efficiency of free markets in the distribution of goods and services; a value-rational justification in Weberian terms. Adam Smith famously used the metaphor of an “invisible hand” to describe how, without the imposition of central planning, the self-interested behaviour of producers and consumers in a market can in fact promote the common good.[30]

Welfare economists have since confirmed this mathematically, demonstrating by their so-called first theorem that in a perfect free market, the distribution of wealth will be Pareto-optimal: that is, the natural state of the market is such that no participant will be able to be made better off without making at least one other participant worse off.[31]

However there may be many Pareto optimal distributions of wealth in an economy, and the theorem makes no normative distinction between them—it is equally efficient for wealth to be distributed evenly between all consumers, as it is for the same wealth to be concentrated in the hands of an elite whose neighbours are left to starve. Although the second theorem of welfare economics does posit that a fair distribution can be attained by means of the government imposing a lump-sum redistribution of wealth, as to what this fair distribution is, it gives no answer.[32] It is thus unfortunate that other important social values besides efficiency, such as distributional equity and human rights, are less easily susceptible to economic analysis.

Unregulated markets also fail to guard against the impact of externalities; the external effects of the decisions of a producer or consumer that are costless to them, but costly (or more costly) to others or to society.[33] This can lead to outcomes such as the “tragedy of the commons,” in which it is in each individual’s self-interest to deplete a shared resource to nothing, because the benefits of such depletion accrue only to them, while its costs are also borne by others.

And these are only the products of a theoretically perfect market; in practice, no market is perfect, and the less perfect it is (as in the case of a monopolistic or oligopolistic industry), the less benevolent are the movements of the invisible hand. Moreover, MNCs are not parties to the international human rights instruments that are binding on states, with the United Nations’ voluntary Global Compact[34] providing a weak substitute at best.

For all these reasons, the private sector’s role in the operation of markets, whilst legitimate in its sphere, is insufficient. It is one of the roles of the liberal state to intercede in markets and societies to ensure that markets work efficiently and that other social values are upheld.

3.4.1.3. Civil society

A widely-held view is that the third stakeholder group, civil society, claims its legitimacy as “a specialist, a scholar, or an expert whose authority derives from specialized knowledge and practices that render such knowledge acceptable, and appropriate, as authoritative.”[35] In Weberian terms, the application of such expertise as the most efficient means to an end is instrumental-rational; in other words, it is instrumentally-rational for a decision maker to defer to civil society to gain the benefit of its technical expertise.[36] But this can be true only of a limited subset of civil society, including certain of the more active NGOs.

An alternative and preferable view is that it is not just the expertise that civil society brings, but rather the values it puts forward, that justifies its participation in international governance. It therefore draws its legitimacy from the promotion of substantive values for their own sake,[37] which is a value-rational ground. Put in more familiar terms, to include civil society in governance because of its expertise would be an instrumental justification for doing so (and doubtless private sector consultants could fulfil that role just as well), whereas to include it by reason of its promotion of substantive values is a normative justification.

On the face of it, this seems to overlap with the legitimacy of states, as are not democratic governments intended to provide a mechanism for the transmission of the substantive values of their citizens? Perhaps so, but as noted above, that is not to say that those citizens thereby forfeit their right to form other communities of interest through which to express their values in other fora, that may transcend the state’s boundaries. A state cannot therefore be considered the sole and sovereign agent of its citizens while they may choose to delegate their sovereignty outside and across its borders too. Post writes,

Normative Liberal theory does not merely give “non-governmental organizations” a place at a negotiating table whose shape and agenda is defined by existing state actors; it places non-governmental institutions of all kinds and states on equal footing and asks, as a threshold matter: to which institution(s) has the “sovereign” delegated its power?[38]

The argument can be taken further: that NGOs are potentially better representatives of their constituents’ interests than are states, because they have “the function of representing people acting of their own volition, rather than by some institutional fiat.”[39] There will be no impetus for the formation of an NGO if its members’ interests are already adequately represented by their states. But inevitably there are interests that states inadequately represent, and for which NGOs have become the dominant representatives.

Take for example Amnesty International[40] in representing the interests of political prisoners (whose interests are by definition ignored by their states), the International Campaign to Ban Landmines[41] in campaigning against the use of landmines (against the military interests of states), and Greenpeace[42] in lobbying for environmental protection (against states’ economic interests).

These are not isolated cases, but examples of a systemic problem inherent in the concentration of authority in state organs. Just as the free market imperfectly achieves the value of efficiency to which it aspires (let alone other social values), so too the state, although it may be structured along democratic lines and aspire to fairly represent its citizens’ interests, is inclined to represent powerful interests more successfully than those of social minorities and the economically powerless.[43]

For Marxists, this is primarily because the capitalist state is a dictatorship of the bourgeoisie which subdues competing interests through cultural hegemony. A more nuanced approach within the Marxist tradition is that of Poulantzas, for whom the state, although enjoying relative autonomy from the capitalist class, is bound to support the long-term interests of capitalists in order to ensure its own continued existence. Thus the state will broker only so many concessions to the interests of the working class as are necessary to subdue a socialist revolution.[44]

This is of course in contrast to the liberal pluralist conception of the state, which constructs it as a neutral vessel to which all classes and their interests have equal access to shape policy. However liberal neo-pluralists such as Robert Dahl and Charles Lindblom have since conceded that:

common interpretations that depict the American or any other market-oriented system as a competition among interest groups are seriously in error for their failure to account of the distinctive privileged position of businessmen in politics.[45]

Yet a third approach to the study of the state alongside Marxism and pluralism is that of institutionalism,[46] according to which the state, and the interest groups that participate in domestic political processes, are institutions in themselves, with their own interests independent of, and perhaps in conflict with, those of the citizens whom the system is intended to represent. As such,

the political demands that come to be expressed in politics are not an exact reflection of the preferences of individuals but rather deviate considerably from this potential “raw material” of politics. Various institutional factors influence the political processes that adjudicate among conflicting interests and may hence privilege some interests at the expense of others.[47]

Cutting across these three approaches, Cutler describes the “material, ideological, and institutional” power of capital as the power of the “mercatocracy.”[48]

Thus the basis of transnational civil society’s legitimate authority in international governance is that it acts as a check on the power of the state to the extent that the state’s authority fails to adequately represent the interests of its citizens—particularly including interests that cut across states, and those that are not valued by the mercatocracy. Indeed, the Secretary-General of the United Nations in 1994 acknowledged NGOs as “a basic form of popular representation in the present day world” that is “a guarantee of the political legitimacy of those international organizations” in which they participate.[49]

Does this mean that civil society groups should take the place of states as representatives of substantive values? Not at all, for three main reasons: their inability to independently implement policy at state level, their lack of representativeness, and their lack of accountability.

The first of these reasons is that civil society often depends upon states to actually implement the policies for which NGOs lobby.[50] Naturally, exceptions are easily found, such as the campaigns of the Rainbow Warrior and the direct humanitarian action of NGOs such as Oxfam, but it remains that domestic law reform is often the primary objective of the work of civil society in intergovernmental organisations.

As for the issue of representativeness, it goes without saying that states remain the dominant form of large scale social ordering, and thus for all their faults will always be more representative of their citizens than any NGO could be. NGOs may compensate for the deficiencies of states’ representativeness of their citizens, but neither claim to nor do provide the broad representation of society that states do. As Cardoso puts it:

The legitimacy of civil society organizations derives from what they do and not from whom they represent or from any kind of external mandate. In the final analysis, they are what they do. The power of civil society is a soft one. It is their capacity to argue, to propose, to experiment, to denounce, to be exemplary. It is not the power to decide.[51]

As to civil society’s accountability, whilst the extent to which states reflect their citizens’ values may be obscure, the extent to which many NGOs do so is even more obscure, as they may not be particularly democratic internally. In fact it is precisely the NGOs that possess the resources to participate actively in international fora that may be most at risk of being unduly influenced by powerful interests. Whilst, as we have seen, states are subject to the same risk, at least liberal democratic states are constrained in this respect by certain institutional checks and balances that NGOs may lack.[52]

Thus although civil society acts legitimately in international governance, it does so only in collaboration with other legitimate stakeholders. As a corollary, organisations involved in international public policy governance lay their strongest claim to legitimacy when their processes incorporate all three complementary founts of authority: states, markets and society—the very forces that have defined the study of sociology since Weber.

No stakeholder will ever take the place of the others in international governance, because their legitimacy and consequent authority is independently derived. It is this, rather than the fact that any individual stakeholder will be ineffective in attempting to exercise governance without the others, that lies at the core of the need for governance by networks in which all stakeholders are involved.

Notes

[1]

For a broader taxonomy of variables impacting upon the effectiveness of international institutions, both endogenous and exogenous to the institutional arrangements in question, see Young, Oran R, The Effectiveness of International Institutions: Hard Cases and Critical Variables (1992).

[2]

Milner, Helen, The Assumption of Anarchy in International Relations: A Critique (1991). Another is that it is effective governance: Ferguson, Yale H & Mansbach, Richard W, Between Celebration and Despair: Constructive Suggestions for Future International Theory (1991) , 376. The difference between the two definitions is mostly one of focus—on the legitimacy of the authority in the first case, and its effectiveness in the second. Yet neither definition is entirely satisfactory. As to the first, it is possible, at least for the legal positivist, for law to exist that is illegitimate; but it would be inaccurate to say that such law necessarily lacks authority. As to the second definition, Rosenau at least would regard it as tautologous; see Rosenau, James N, Governance, Order and Change in World Politics (1992), 5.

[3]

Rosenau, James N, The Relocation of Authority in a Shrinking World (1992), 259

[4]

Franck, T M, The Power of Legitimacy Among Nations (1990), 16.

[5]

Weber, Max, Roth, Guenther, & Wittich, Claus, Economy and Society: An Outline of Interpretive Sociology (1968), 36–37, 215

[6]

See also Ferguson, Yale H & Mansbach, Richard W, Between Celebration and Despair: Constructive Suggestions for Future International Theory (1991), 370.

[7]

Though as noted above this monopoly has to a large extent been formally ceded to the United Nations Security Council pursuant to articles 24, 25 and 33 of its charter.

[8]

Ferguson, Yale H & Mansbach, Richard W, Between Celebration and Despair: Constructive Suggestions for Future International Theory (1991), 381

[9]

See Detter, Ingrid, The International Legal Order (1994), 73; Fox, Gregory H, The Right to Political Participation in International Law (2000) , 90; Murphy, Sean D, Democratic Legitimacy and the Recognition of States and Governments (2000), 153, Marks, Susan, International Law, Democracy and the End of History (2000) , 548.

[10]

Rosenau, James N, The Relocation of Authority in a Shrinking World (1992), 258

[11]

Malcolm, Jeremy M, Do Corporations Have Rights? (1994), Chapter 1

[12]

Post, David G, The “Unsettled Paradox": The Internet, the State, and the Consent of the Governed (1998), 542.

[13]

Jensen, Darryn M, The Transformation of International Law (2004), 38.

[14]

18 Dec 1979, 1983 ATS No 9 (entry into force for Australia 27 Aug 1983)

[15]

Shiva, Vandana, Doha: Saving WTO, Killing Democracy (2001)

[16]

Cardoso, Fernando H, Cardoso Report on Civil Society (2004), 24

[17]

Paulus, Andreas L, From Territoriality to Functionality?: Towards a Legal Methodology of Globalization (2004), 61

[18]

See http://www.camdun-online.gn.apc.org/.

[19]

See http://www.wfm.org/.

[20]

Nye, Joseph S, Globalization’s Democratic Deficit: How to Make International Institutions More Accountable (2001)

[21]

See generally CAMDUN, Main Options for a UN Peoples’ Assembly (2002).

[22]

See Clarke, Grenville & Sohn, Louis B, World Peace Through World Law (1958).

[23]

European Parliament, Resolution on the Reform of the United Nations (2005)

[24]

Strauss, Andrew, Taking Democracy Global: Assessing the Benefits and Challenges of a Global Parliamentary Assembly (2005), 1–3.

[25]

Strauss, Andrew, Taking Democracy Global: Assessing the Benefits and Challenges of a Global Parliamentary Assembly (2005), 4

[26]

For example, the WTO: see Section 3.2.1.2.

[27]

But see Moravcsik, Andrew, Reassessing Legitimacy in the European Union (2002).

[28]

Treaty Establishing a Constitution for Europe, 29 Oct 2004

[29]

Article I-47

[30]

Smith, Adam, The Wealth of Nations (1976), 477

[31]

Arrow, Kenneth J & Debreu, Gerard, Existence of an Equilibrium for a Competitive Economy (1954)

[32]

Arrow, Kenneth J & Debreu, Gerard, Existence of an Equilibrium for a Competitive Economy (1954)

[33]

Coase, R, The Problem of Social Cost (1960)

[34]

See http://www.unglobalcompact.org/.

[35]

Cutler, A C, Private International Regimes and Interfirm Cooperation (2002), 26; Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997) , 274; and compare “consensual knowledge”: Hall, Rodney B & Biersteker, Thomas J, Private Authority as Global Governance (2002), 209.

[36]

But importantly, Weber did not relate this to a form of authority or consider it a ground of legitimacy for a social order.

[37]

Friedrichs, Jörg, The Neomedieval Renaissance: Global Governance and International Law in the New Middle Ages (2004), 20

[38]

Post, David G, The “Unsettled Paradox": The Internet, the State, and the Consent of the Governed (1998), 536.

[39]

Gordenker, Leon & Weiss, Thomas G, Pluralizing Global Governance: Analytical Approaches and Dimensions (1996)

[40]

See http://www.amnesty.org/.

[41]

See http://www.icbl.org/.

[42]

See http://www.greenpeace.org/.

[43]

See more generally Section 4.3 regarding the limitations of democratic governance.

[44]

Poulantzas, Nicos, Political Power and Social Classes (1968)

[45]

Dahl, Robert & Lindblom, Charles, Politics, Economics and Welfare (1991), xli

[46]

Or new institutionalism, of which the scholarship of the so-called “historical” branch is described here.

[47]

Immergut, Ellen M, The Theoretical Core of New Institutionalism (1988), 17

[48]

See Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 186

[49]

United Nations Non-Government Liaison Service, NGLS Roundup, November 1996 (1996), and see Charnovitz, Steve, Two Centuries of Participation, NGOs and International Governance (1997) , 274.

[50]

Halliday, Fred, Global Governance: Prospects and Problems (2000)

[51]

Cardoso, Fernando H, Civil Society and Global Governance (2003), 7

[52]

See Section 4.3, but also ECOSOC, Consultative Relationship Between the United Nations and Non-Governmental Organizations (1996), paras 10 and 12.