Quod omnes tangit: Transnational Constitutions Without Democracy?
| DOI | http://doi.org/10.1111/jols.12102 |
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Gunther Teubner |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, ISSUE S1, JULY 2018
ISSN: 0263-323X, pp. S5±S29
Quod omnes tangit: Transnational Constitutions Without
Democracy?
Gunther Teubner*
Critics of global constitutionalism rightly point to a democratic deficit
of transnational regimes. They base their critique on a time-honoured
principle of democracy: the identity of authors and affected people is
the universal core of democracy. However, in its long winding history,
the democratic principle had always been recontextualized. Such a
recontextualization of democracy which requires generalization as
well as respecification is needed again today under the conditions of
transnationalization. As for generalization, the article's main thesis is:
political representation, the traditional concept of democracy for the
nation state, is replaced by self-contestation, which needs to be firmly
institutionalized in transnational regimes. As for respecification, the
main thesis is: self-contestation cannot be established in a one-size-
fits-all approach, but in multiple variations that reflect the extreme
epistemic diversity among issue-specific transnational regimes. The
constitutional principle of `epistemic subsidiarity' may open new
perspectives for developing different procedures of self-contestation
for different regimes.
WHO CARES FOR REGIME DEMOCRACY?
Is the constitutionalization of transnational regimes accompanied by their
democratization? This is a hotly disputed topic in democratic theory, but not
only there. In the real world, national and international courts, international
political actors, social movements, and the regimes themselves experience
the grave democratic deficit of transnational regimes as an urgent problem
for which they desperately seek novel solutions.
S5
*Goethe Universita
Èt, Telemannstrasse 5, D-60323 Frankfurt, Germany
G.Teubner@jur.uni-frankfurt.de
For helpful comments, I would like to thank Jaye Ellis
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
Courts deal with the legitimacy question, when they have to decide
whether to recognize the autonomous regime constitutions as valid law. One
example may suffice: Waite and Kennedy v. Germany confronted the
European Court of Human Rights with the question whether the constitution
of a transnational regime ± the European Space Operations Centre ± could be
the object of judicial review.
1
The Court practiced judicial review and
established the following rule: if the provisions of a regime's constitution
violate fundamental principles of democratic legitimacy, particularly human
rights, the court will declare these provisions null and void.
2
Thus, whether
the courts recognize regime constitutions as valid law depends on their
perception of constitutional legitimacy. It is a kind of generalized Solange-
principle: as long as regime constitutions do not provide for sufficient
legitimacy, the courts will not recognize them as valid law. If this becomes a
major trend, then courts will exert considerable external pressures on regime
constitutions to strengthen the regimes' democratic legitimacy.
3
For transnational politics, Andrew Moravcsik raised the question: `Is
global governance [. . .] democratically legitimate, or does it suffer from a
``democratic deficit''?'
4
This is emerging as one of the central questions ±
perhaps the central question ± in contemporary world politics. In the
meantime, with the worldwide emergence of vociferous renationalization
movements on both sides, on the political right and on the left,
5
pressures on
transnational regimes to deal with their legitimacy problems have been
heightened. Moreover, civil society, protest movements, labour unions, and
stakeholders of transnational regimes are confronted with the strategic
alternative: should they use their political influence in order to strengthen the
legitimacy of transnational regimes or attempt to delegitimize them and push
their activities back to the nation states.
And it is in the self-interest of the transnational regimes to confront their
legitimacy problem. Transnational regimes and private governance regimes
in particular depend, to a large degree, on the voluntary cooperation of their
S6
1Waite and Kennedy v. Germany (Application No. 26083/94). For a discussion, see
C. Walter, `Constitutionalizing (Inter)national Governance: Possibilities for and
Limits to the Development of an International Constitutional Law' (2001) 44
German Yearbook of International Law 170, at 187 ff.
2 The provisions in question granted ESA immunity from national jurisdiction.
3 On the constitutionalization of transnational regimes via external pressures, see L.
Viellechner, `Responsive Legal Pluralism: The Emergence of Transnational Con-
flicts Law' (2015) 6 Transnational Legal Theory 1; L. Viellechner, Transnationali-
sierung des Rechts (2013) 285 ff.
4 A. Moravcsik, `Is there a Democratic Deficit in World Politics? A Framework for
Analysis' (2004) 39 Government and Opposition 336, at 336.
5 While, for the political right, arguing for a renationalizing of globalized policy areas
is business as usual, for the political left it is a rather embarrassing betrayal its
internationalist past: W. Streeck, Buying Time: The Delayed Crisis of Democratic
Capitalism (2014); D. Schneiderman, Resisting Economic Globalization: Critical
Theory and International Investment Law (2013).
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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