![]() ARENA Working Papers
Discourse and Order - On the Conditions of Governance in Non-Hierarchial Multi-Level Systems
Jürgen Neyer |
Abstract�
1. IntroductionMost modern theories of democracy agree that non-coercive
public order presupposes a discursive interaction both among different
parts of society, and the society at large and government. Majoritarian
decision-making and the delegation of power to a ruling elite
is only accepted by citizens if the ruling majority is obliged
to publicly justify their policies by reference to broadly consented
norms and if it does so in an open and unlimited discourse (Habermas
1992, Rawls 1971). As opposed to modern democracy theory, international
relations theory has little sensitivity for the linkage between
order and discourse. If used as an empirical category, international
order is most often presented as the product of an asymmetrical
distribution of power, either in terms of material (Keohane 1984),
normative (Biersteker 1992) or ideological (Cox 1987) resources.
The very idea, however, that order presupposes the consent of
the ruled, and involves deliberative discourses for attaining
it, is still alien to most of international relations (IR) theory.
If the notion of discourse (or some equivalent) is applied at
all, it most often remains limited to the intergovernmental level
(Bull 1977). The normative implications of this neglect are little
less than serious: One only too easily is led to argue that order
beyond the state is limited to executive multilateralism (Ruggie
1993) or even to tie it to the readiness of a major power to burden
the task of unilaterally providing rules and adherence (cf. Mearsheimer
1994/95). If it true, however, that global politics is undergoing a historical transformation
from the national to the postnational constellation (Habermas
1998), the time might be right for reassessing the adequacy of
this assumption. This paper aims at doing so by combining the
insights of recent multi-level governance analyses with a deliberative
theory of interaction. According to such a perspective, international
order must be understood as a non-hierarchical political structure
that encompasses the domestic, the governmental and the international
level (section 2). An important means of political interaction
is policy deliberation which is functionally superior to bargaining
when groups are large and power structures are roughly symmetrical
(section 3). A deliberative perspective on postnational governance
finally informs normative concerns (section 4) by emphasising
the need to transform diplomatic interaction into a structure
of transparent cross-level and cross-border deliberations among
international organisations, governmental addressees and affected
domestic parties. 2. Governance and HeterarchyPolitical science is accustomed to situate governance
structures on a continuum of power concentration, which ranges
from hierarchy on the one side to anarchy on the other. Thinking
in terms of anarchy and hierarchy and describing empirical forms
of governance as laying somewhere in between can be traced back
at least to the writings of Thomas Hobbes. It was primarily motivated
by a deep concern that no political order will be viable without
a single point of concentrated power, able to set and enforce
binding rules. Over the centuries, the anarchy/hierarchy dichotomy
has proven to be a powerful heurism for political science in that
it allowed understanding structural differences between international
and domestic politics, equating hierarchy with political order
and anarchy with political disorder. If applied to the empirical realities of modern
postnational politics, however, it is difficult to make sense
of the distinction. Following Robert Dahl (1994), J�rgen Habermas
(1998), Michael Z�rn (2000) and many others we are in the midst
of a historical transformation from a national to a postnational
constellation. The increasing intensity of cross-border social
and economic transactions (�globalisation�) undermines the nation-state�s
autonomous problem-solving capacity while at the same time processes
of political internationalisation add new layers of political
authority on top of it. Socio-economic globalisation and political
internationalisation have propelled a process, in which nation-states
increasingly pool their sovereignties (Keohane/Hoffman 1991) and
empower inter- or supranational institutions to cope with those
tasks they are no longer able to deal with autonomously. This
process has not only led to �governance without government� (Rosenau/Czempiel
1992) and �governance beyond the nation-state� (Z�rn 2000) but
also to the emergence of �law above the state� (Volcansek 1997,
Neyer 1999) and a �legalisation of international politics� (Abbott
et al. 2000). Some even interpret the empirical evidence as suggesting
the emergence of a �global law without a state� (Teubner 1996)
or, even more explicitly, a �new world order� based on transnational
communicative networks (Slaughter 1997). Diplomacy becomes increasingly
embedded in a dense normative structure, promoted by a multitude
of formal and informal transgovernmental as well as non-governmental
cross-border networks (Slaughter 2001). In this new structure,
political interaction no longer follows the logic of strategic
bargaining only but is also open for a �logic of appropriateness�
(March/Olson 1998) and a �constitutionalisation� of formerly diplomatic
structures, not only in the EU (Alter 2001, Pernice 1999) but
also beyond (Jackson 1999). Against this empirical background, it seems appropriate
to describe the structures of postnational governance as following
a �heterarchical� logic, which acknowledges at the same time the
formal sovereignty of the nation-state while arguing that complex
interdependence requires rules for the conduct of interaction
and an inclusion of non-governmental actors in processes of postnational
policy-making.
[1]
![endif]>![if> In such a heterarchical structure, political
authority is neither centralised (as under conditions of hierarchy)
nor decentralised (as under conditions of anarchy) but shared,
which means that the units of a system pool their authorities
with the purpose of a shared execution of governance. Likewise,
the structure of interaction follows neither a vertical logic
(as in a hierarchical setting, in which an author of a rule issues
commands, monitors and eventually enforces compliance), nor a
purely horizontal logic (as in an anarchical setting, in which
each individual actor must look unilaterally for ways and means
to interact with other actors) but combines both elements into
an integrated mode of interaction. Political interaction therefore
is in permanent need of cross-border and cross-level communicative
processes with the purpose of accommodating the preferences of
the constituent units (both horizontally and vertically). The concepts of anarchy, hierarchy and heterarchy
of course refer to ideal types. Empirically it will hardly be
possible to observe them in purity. An empirical approximation
to a heterarchical structure, however, may be found in the first
pillar of the EU with its parallelism of legislative competencies
shared between the Commission, the Council and the European Parliament,
and the sharing of competencies between the Commission and the
Member States in the implementation of rules. In this setting,
none of the involved actors can unilaterally pursue its goals
without finding the approval of all other actors: It is not only
that the member states must co-ordinate their preferences among
each other to find enough votes for a qualified majority. The
need for co-ordination also applies to the European institutions:
The Council cannot act without a proposal on the part of the Commission,
and again needs the Commission to promote its implementation.
The Commission likewise must formulate its legislative proposals
in a way that they have a good chance to pass the scrutiny of
the Council and the Parliament and must secure member state approval
in Comitology for its implementing measure. Furthermore, because
the Commission has only limited capacities to enforce European
law, it invests much effort to safeguard broad political support
for its proposals, to consult with as many interest groups as
possible and to postpone disputed decisions rather than to vote
on them. Successful political interaction in the first pillar
of the EU therefore is strongly characterised by a demand for
a shared and co-operative exercise of governance among the member
states and the European institutions. A co-operative exercise of governance does of
course not imply that all levels of a heterarchical structure
always have an equal influence on policy-outcomes. As a rule one
should rather expect that the influence of the different levels
empirically differs from issue area to issue area and is subject
to both institutional provision (e.g. allocation of legal competencies
and access to information) and public awareness. Even in issue
areas, however, in which the Commission has broad discretionary
powers, it still must respect that it has no power to coerce member
states into compliance (there is no European police) but must
safeguard that its decisions remain acceptable to its member states
and the member states� publics. Open cases of non-compliance,
such as in the infamous BSE case (Neyer 2000), or less dramatic
cases of silent non-implementation of EU law underline that compliance
in the EU (and therefore the effectiveness of postnational governance)
rests on the precondition that member states �accept it (=international
rules, JN) as an autonomous voluntary act, endlessly renewed on
each occasion, of subordination� (Weiler 2000: 13). The same caveat
applies to supranational dispute settlement bodies or courts.
Although it is true that the legitimacy of courts is not to the
least based on the application of legal reasoning (deducing decisions
from general normative rules in an argumentative manner), it also
is hardly imaginable that the political status of the ECJ in the
European institutional system would not suffer if its decision
were a permanent political affront to the member states and the
member societies (Garrett et al. 1998).
3. Deliberation and Bargaining in Heterarchical Multi-Level StructuresAs these brief explanations already imply, effective
governance in heterarchical multi-level contexts requires an inclusive
and co-operative mode of interaction. And indeed, empirical evidence
underlines that political interaction in the EU relies very much
on deliberation and uses strategies of bargaining or voting only
as instruments of last resort. Both the empirical evidence of
a very limited use of voting procedures (Eriksen/Fossum 2000:
Fn. 7) and the high relevance of deliberative procedures (Joerges/Neyer
1997, Lewis 1998) can be taken as evidence that effective governance
under conditions of heterarchy is an intrinsically deliberative
business. Much of international relations theory, however,
is highly critical of the empirical relevance of deliberation.
Agenda-setting works by authors such as Schelling (1960), Waltz
(1979), Keohane (1984) or Krasner (1999) describe an international
world that is by and large dominated by monological actors who
have little regard for the concerns of others. And indeed, governmental
delegates are not appointed for realising the collective optimum
but are paid for advancing national interests and are monitored
by their superiors for the degree to which they promote them.
Likewise, both intergovernmental and non-governmental organisations
have specific agendas and fixed interests (to maximise influence
or donations) and therefore can hardly be expected to act as the
communicative individuals of Habermasian discourse theory. So
how comes that deliberation can be an important mode of interaction
in multi-level contexts? Is deliberation among representatives
not a contradiction in terms? Or, to say the least, a form of
interaction which is largely restricted to expert communities
with low political salience and becomes immediately trumped by
bargaining if �real� concerns with significant cost implications
are involved? Is the empirical evidence emphasising the relevance
of deliberation biased and focussed on issue-areas that have only
low potential for conflict? And is therefore any optimism concerning
the capacity of postnational institutions to engage in cross-border
problem-solving not strongly exaggerated? This is not the place to produce a systematical
collection of empirical data on the relevance of deliberation
in the postnational constellation. It is, however, the place for
discussing why and under what conditions cross-level and cross-border
deliberation can be expected to be a dominant mode of communicative
interaction and therefore heterarchical political structures be
assumed to perform well. For doing so, the paper will in the following
distinguish several types of communicative interaction, argue
that the specific conditions of the EU produce incentives for
the member states to prefer deliberation over bargaining, and
show that they have the means for facilitating it. I will finally
take issue with the puzzle that bargaining still seems to be an
empirically more significant mode of interaction than this approach
suggests by pointing to some of the political costs of postnational
deliberation.
3.1. Modes of communicative interaction
It has become common in the literature to distinguish
between two most important forms of political interaction, namely
arguing and bargaining.
[2]
![endif]>![if> Both types of interaction can be understood
as modes of communication, which consist of an exchange of speech
acts and aim at motivating other actors to accept own preferences
as a guideline for collective action. The basic difference between
the two types of interaction lies in their illocutionary content
and their perlocutionary intention: While arguing rests on claims
of factual truth and/or normative validity and intends to change
behaviour by convincing others of the rightness of a proposal
or demand, bargaining relies on promises and threats (including
threats of exit) and intends to change behaviour without convincing
(or only persuading) others (cf. Mueller 2001: 3). As opposed
to bargaining, which enjoys broad acceptance as being an important
analytical category for describing political interaction beyond
the state, even those who grant the same status to deliberation
are far from united in theorising about its empirical relevance.
At least three different approaches to the analysis of postnational
deliberation can be distinguished:
a)
A first approach
stems from the work done on the influence of epistemic communities
(groups of non-political experts or scientists who work in the
same profession and share a common problem understanding) in international
politics. As Haas (1992) and Gehring (1998) have shown, epistemic
communities can have a significant impact on international politics
if governments have not yet identified their �national interest�
due to (a) lacking information on the nature of a problem, (b)
unstable domestic interest coalitions or (c) lacking knowledge
about the implications of different policy options on broader
governmental objectives. If these conditions apply, governments
are relatively open to non-political advice by experts. Political
interaction therefore is likely to be shaped by discursive processes
among experts, by the application of standards of truth-seeking
and follows the logic of appropriateness rather than of strategic
rationality. Although an epistemic community approach promises
to underline the importance of deliberation in international politics,
it is at the same time highly sceptical concerning the overall
relevance of deliberation. By restricting its probability to situations
in which information is scarce and governmental preferences are
not yet identified, it implicitly denies it any central importance.
b)
An alternative
approach to deliberation can be derived from communitarianism.
As Miller (1995) and others argue, national communities can be
separated from international communities by their shared notions
of ethical values and principles. These shared notions are not
the result of a mere contract among individuals (as contract theory
would argue, e.g. Rawls 1971) but of a long historical process
of nation-based communication. In political life, such shared
notions of ethical values both give expression to idea of the
nation as an ethical community and function as the prerequisites
of deliberations about the meaning of the common good and about
the goals of political action. For the purpose of understanding
communicative interaction beyond the state, a communitarian approach
seems at first hand to be in sharp contrast to the idea of cross-border
deliberation. Because it connects deliberation to shared ethical
concerns, it rejects any claim that deliberation beyond the nation-state
can be empirically significant. As soon as we relax the assumption
of an individualistic international world, however, a communitarian
approach becomes more helpful. Assuming that � at least in the
EU � national governments today are no longer only representing
autonomous nation-states but have come to accept that the collective
exercise of governance is a necessary means for realising individual
preferences, we have little difficulties of conceptualising governments
as �dialogical actors who co-ordinate their plans through argumentation
aimed at reaching mutual agreements� (Eriksen/Weigard 1997: 221).
If we furthermore accept that the EU is not only a technical instrument
for solving problems but also a political community in which shared
ethical concerns (human rights, rule of law, etc.) are an important
foundation of governance (cf. Schimmelfennig 2001), we also may
think of the EU as a normatively integrated life
world in which only those actors who act collectively responsible
behave rationally. Deliberation understood as a form of reasoning
that applies shared normative standards and guides actors by providing
incentives to behave �appropriately� (March/Olson 1998) becomes
plausible. To be sure, the adequacy of a communitarian mode of
theorising finds it limits as soon as we leave the EU and investigate
political interaction in less normatively integrated policy areas.
In the EU, however, there is little reason to believe that shared
ethical concerns may be irrelevant and that governments are still
only monological actors.
c)
An even more
helpful approach to understanding the relevance of deliberation
can be derived from a republican tradition of theorising. In such
a perspective, deliberation refers to a mode of communication
in which actors are required to state their reasons for advancing
proposals by referring to consented norms (cf. Elster 1998). Such
norms are, for example in the EU, Treaty law, in a constitutional
democracy the constitution, and in the WTO the WTO Treaty. The
mode in which discourses are conducted in a deliberative procedure
follows very much the logic of legal reasoning (cf. Dworkin 1991:
Chapter 2): Each of the actors in a given dispute interprets a
given norm relevant for the decision to be taken according to
his or her subjective understanding of its meaning, and by openly
describing his or her way of deducing implications from an agreed
norm. In so doing, a sample of different interpretations emerges
which are accessible for critical evaluation by third parties.
Such evaluations can be conducted by a great variety of actors.
In a democracy it usually is the parliament which serves as a
forum for critical discourse and as the institution in which demands
for justification and coherence with basic norms are voiced. If
these demands, however, remain either unheard or if the reasons
given by a ruling majority are unconvincing to the minority, it
has the option to ask a constitutional court to declare a legislative
act to be anti-constitutional and void. Likewise, any member state
in the EU can ask the ECJ to give an opinion on the integrity
of legal actions by any European institution or member state and
demand to declare that action to be incompatible with the Treaties.
Understood such, deliberation does neither depend on the existence
of a shared problem-understanding nor on historically established
and collectively shared ethical concerns. It only requires that
actors abstain from using threats or promises to advance their
preferences, agree on basic constitutional norms and accept that
previously identified third parties have the competence to give
an authoritative opinion on the validity of their arguments.
3.2. The functional superiority of deliberation
Deliberation is often criticised for being nice
as a normative idea (because it emphasises co-operation over conflict,
and forces actors to justify preferences and actions by reference
to consented norms) but suffering from serious flaws when applied
in political practice. It is argued that its emphasis on discourse
implies much longer periods of time for producing a collective
outcome than a procedure that follows the logic of bargaining
does, and that it is less effective because it naively trusts
in convincing and overlooks the need to enforce rules. I will
argue in the following that both claims are difficult to maintain
and that a number of reasons can be raised which point to quite
the opposite finding. Policy deliberation is not only far from
being utopian but also a functionally superior mode of interaction
and, thus, can well be understood as a direct implication of individual
rationality. It is at least three dimensions in which the functional
superiority of deliberation over bargaining can be illustrated:
Efficiency The efficiency of bargaining crucially depends
on the preconditions that the number of participants is small
and that power resources are highly asymmetrical. The perfect
setting for a bargaining procedure consists of a group of only
two actors, of which one is strong and rich and the other one
is weak and poor. In such a setting, the group will have little
difficulties to arrive at a quick solution. The strong and rich
actor will always be able to act as a benevolent or coercive hegemon
and either threaten its partner with negative consequences in
case he does not agree to a proposed solution or promise to compensate
him for any damage which a proposed solution may imply. Efficiency becomes a highly problematic issue,
however, as soon as the number of actors and the symmetries in
individual power resources rise. Imagine a setting of fifteen
actors in which no single actor is able or ready to shoulder the
costs of enforcing a deal by threatening others or by promising
compensating side-payments. Under such conditions, any possible
deal must satisfy the preferences of all fifteen actors and necessitates
a time-enduring process of balancing individual preferences until
one solutions has been identified which leaves no actor worse
off than it had been before (Pareto-Optimum). Of course, the practice
of bargaining knows a number of mechanisms to reduce the impact
of these problems such as iterated interaction, side-payments
and so forth (cf. Schelling 1960). At the end of the day, however,
the crucial problems of bargaining under conditions of symmetrical
power distributions and a large number of actors remain valid.
It is little surprise therefore, that intergovernmental bargaining
at Treaty reforming intergovernmental conferences (IGCs) or (even
worse) at the Ministerial Conferences of the WTO necessitate intense
preparations, are nevertheless often close to collapse and leave
all actors exhausted until a deal can finally be struck. Whilst bargaining easily runs into serious functional
problems if the number of actors and/or the symmetry of power
distribution rises, deliberation as a mode of interaction is far
better equipped to cope with both conditions. Under conditions
of deliberation, any individual preference can be assessed in
terms of its coherence with consented basic norms (such as reciprocity,
the principle of non-discrimination or the precautionary principle)
and all those preferences, which fail to withstand the test, are
taken out of the sample of possible solutions. To be sure, deliberation
does not necessarily lead to only one solution for a problem.
It rather often happens that different and mutually incompatible
proposals can be justified as being in accordance with consented
basic norms. Imagine for example the case of redistributive policies.
Although Art. 14 of German Basic Law stipulates that �property
obliges� and that its use must be to the benefit of all, it is
far from clear what level of redistribution this implies. Likewise,
Art. 106 demands the establishment of a redistributive mechanism
among the German Laender which safeguards �uniform life conditions�
throughout the whole territory of Germany: But what level of taxation/redistribution
is appropriate for giving meaning to these provisions? Even the
most sophisticated deliberation will run into serious difficulties
if it aims at identifying the one and only number which gives
expression to both constitutional norms. It is not surprising
therefore that the German Constitutional Court has never been
willing to identify an appropriate level of redistribution, either
on the intergovernmental level among the Laender or on the interpersonal
level among individuals. What it did however, was to set up procedural
standards according to which a political compromise had to be
found and to demand from a legislating majority to give good reasons
for whatever level it chooses. By doing so, it enforced a deliberative
procedure which excluded all those options which could not be
reasoned by referring to well-stated justifications and it did
not hesitate to declare solutions as being unconstitutional if
they failed to withstand those criteria (Bundesverfassungsgericht
1992). Deliberative procedures therefore have a filtering function
that at least narrows the set of possible solutions and therefore
makes political compromise more likely. The very same logic can be observed in European
politics. Before the introduction of the principle of mutual recognition
in 1979, legislation in the Council of Ministers was heavily handicapped
by detailed regulations and the permanent need to accommodate
the preferences of the Member States in all and every detailed
aspect of market-making. To overcome the resulting inefficiency,
the Commission began in 1980 to assume all national restrictions
of the free movement of goods to be illegal if they could not
be justified with reference to public health and safety.
[3]
![endif]>![if> Following this decision, the Commission
also established and developed its system of scientific committees,
which were given the task to investigate the reasons provided
by Member States. To be sure, market-making policy in the EU is
still far from being an apolitical business. What it has achieved,
however, is to increase its efficiency by obliging member states
to justify actions by reference to consented norms. Effectiveness A similar logic applies to the relative effectiveness
of policy outcomes under a deliberative and a bargaining procedure.
As opposed to policy outcomes that can be justified as implications
of consented norms, bargains do have no independent compliance-pull
(Franck 1990) apart from satisfying temporary preferences. If
bargains are the product of threats, all actors on whom an outcome
has been enforced have a strong incentive to defect as soon as
possible. If either no individual actor exists who has the capacity
and the readiness to safeguard adherence to the outcome of a bargain
(by shouldering the costs of monitoring and enforcement), or if
the number of actors is too high to allow for effective monitoring
on the part of a single actor, bargaining can hardly satisfy the
need for effective norm application. Furthermore, at least among
democracies, the intergovernmental exchange of promises and threats
quickly finds its limits of effectiveness as soon those governments
on which as deal has been enforced try to implement it domestically.
In most democratic setting, governments will face serious difficulties
to implement international rules if these rules find no or very
limited social acceptance, or if they even contradict established
normative concerns. Enforced deals therefore are most likely to
arouse public protest and make it highly difficult for governments
to comply with them. As opposed to policy outcomes conducted by means
of bargaining, deliberative norms are part of an overarching normative
framework, in which the coherence of basic norms with more specific
norms implies that non-compliance with a specific rule equals
non-acceptance of the implications of basic rules. Non-compliance
with the outcome of a deliberative procedure therefore not only
rejects a specific deal but implicitly opposes the whole normative
structure of which the specific norm is part. It therefore is
a far more serious issue, may trigger broader implications for
the defecting party and will be thought twice. Furthermore, if
a government can sell an unwelcome and costly international outcome
by referring to broadly accepted norms, it will find itself in
a much easier position and will have to face much less domestic
political costs when complying with it. Quality Bargaining is notorious for its weakness in safeguarding
a high quality of policy outcomes. As a decision-making procedure,
it knows no safeguards that normative concerns outside of the
individual actors� preferences are respected. Quite on the contrary,
the set of possible solutions to a bargain is defined by the congruence
of a solution with the preferences of all actors. Under conditions
of a large number of actors and a symmetrical distribution of
power, lowest-common-denominator outcomes therefore are the rule
rather than the exception and it will hardly ever be possible
to realise more than Pareto-optimal outcomes (independent of their
adequacy for solving a specific problem). Bargaining therefore
is not only insufficient in terms of the quality of policy output
but also implies the danger to frustrate politicians and publics
alike, who are concerned with the problem-solving capacity of
postnational governance. Telling example of such frustrations
are efforts to realise a sound international environmental policy
or to harmonise capital taxation in the EU. In both cases it was
the veto of individual players (the US with regard to international
environmental policy and Luxembourg with regard to taxation) with
prohibited anything but an outcome which satisfied no one. As
opposed to bargaining, any policy outcome under a deliberative
procedure must be justified in relation to consented basic objectives
and can be challenged if it fails to do so. Deliberative procedures
therefore have the probability not only to improve the efficiency
and the effectiveness of decision-making but also to safeguard
that diplomatic concerns do not trump the concern for finding
solutions that are capable of reducing real world problems. In sum: if (1) no actor is able or willing to
impose its preference on the other actors and to pay the costs
of necessary threats or promises (both in terms of legislative
and executive actions), and/or if (2) a group is large, bargaining
is functionally inferior to deliberation in terms of efficiency,
effectiveness and the quality of policy-output. Therefore, if
(3) actors have an interest in the co-operative exercise of governance
with the purpose of solving collective problems, bargaining can
hardly be a preferred option. We should rather expect that governments
have significant incentives to engage in deliberative interaction. 3.3.
Institutional preconditions of successful deliberation
Cross-border and cross-level deliberation, however, demands more than just
the insight that it is functionally superior to bargaining. As
a matter of fact, governmental delegates are not appointed for
realising the collective optimum but are paid for advancing national
interests and are monitored by their superiors for the degree
to which they promote them. Likewise, both intergovernmental and
non-governmental organisations have specific agendas and fixed
interests (to maximise influence and/or donations) and therefore
can hardly be expected to act as the communicative individuals
of Habermasian discourse theory. Finally, governments may have
strategic reasons to pursue their relative autonomy from public
scrutiny at the international level as much as possible (Moravcsik
1994, Wolf 1999). The empirical reality of postnational governance
therefore often looks like traditional international diplomacy
and excludes a great number of non-governmental actors, which
are nevertheless important for realising domestic acceptance for
international rules. The likeliness of a deliberative mode of
interaction therefore not only depends on the insight that it
is functionally superior to a bargaining mode of interaction but
also necessitates an institutional frame which fosters an inclusive
and disciplined political discourse. (a) Deliberation
and Representation
A first and most important
precondition of deliberation is the representation of all those
actors who have important stakes in an issue. An emphasis on as
much representation as possible not only meets with normative
requirements (identity of those who author a rule and those who
are affected by it) but is also important for functional reasons.
It is basically two causal pathways that underline the importance
of representation for the generation of successful deliberation. A first pathway focuses on the degree to which
affected domestic non-governmental parties accept international
norms (social acceptance). The importance of a reasonably high
degree of domestic acceptance of international norms is basically
due to the fact that it is the public discourse that decides in
all modern democracies about the definition of the common good.
Being faced with a situation in which international norms meet
with broad domestic opposition, governments will find it hard
to legally implement or even enforce them. As actors who are in
need to find public support for their policies, democratic governments
will hesitate to ignore public opinion and � if facing the decision
� rather tend to satisfy their domestic constituencies than their
international partners. A rather high congruence between legal
norms and public opinion therefore is not only important for reasons
of democratic legitimacy but also for reasons of the effectiveness
of international norms. A second and interrelated pathway for the impact
of representation on successful deliberation focuses on the degree
to which not only governmental addressees but also non-governmental
affected parties take part in the making of international rules
(participation). Non-governmental actors (NGOs) are of utmost
importance for bridging between governmental and societal understandings
of what is to be seen as a problem and how a problem is to be
dealt with. Due to their dependence on voluntary funding by societal
actors and the corresponding need to listen closely to public
problem perceptions, NGOs are in direct contact with public opinion.
They therefore have the potential to facilitate discourse between
governmental and societal rationalities and to help avoid situations
in which governments must decide between satisfying their domestic
constituency or their international partners. They can do so by
basically two means (Smith et al. 1997: 73-74):
�
A first important function of NGOs is to direct
the attention of governmental decision-makers to issues that are
high on the public agenda but have not yet been adequately fed
into the political machinery. Classical cases are the concern
for a sound environment in the 1970s, for human rights in the
late 1970s and the 1980s and for social and ecological standards
for international trade in the 1990s. All of these issues had
no strong international lobbies and were by and large neglected
in international institutions until NGOs took them up and forced
governments to take them seriously.
�
A second function of NGOs is to improve the content
of international regulations by bringing their expertise to intergovernmental
politics. Because intergovernmental politics is only too often
dominated by diplomacy and the search for mutually acceptable
solutions without taken the content of agreed upon regulations
too seriously, NGOs can provide an important corrective. They
lobby the international media, provide data on pressing problems
and options to deal with, and act as critics if the results of
intergovernmental bargaining fall short of significantly reducing
real-world problems. They furthermore are no longer the kind of
activists who are strong on conviction but poor on expertise.
NGOs like Greenpeace, Amnesty International, Human Rights Watch
or Medicines Sans Frontier today have an expertise that is hardly
matched by most governments. They are therefore not only competing
with states for influence but are most important partners for
collective problem-solving (Reinicke 1998: 220). NGOs, however, do not only have a constructive potential but can also negatively
affect the prospects of effective postnational governance. If
they are not either directly integrated in international policy-making
and/or if their concerns are disregarded, they are likely to mobilise
the media or public protest and foster political opposition with
the effect of shedding serious doubt on the legitimacy of postnational
governance. Especially the WTO has recently been harshly criticised
for its non-participatory structure. In a statement authored by
1448 NGOs from 89 countries, a large non-governmental coalition
(among them Oxfam, the BUND, Friends of the Earth and Germanwatch)
expressed its deep concern with the non-participatory structure
of the WTO and its effects on democratic governance.
[4]
![endif]>![if> Because the rules and procedures of the WTO are viewed as �undemocratic,
intransparent and non-accountable�, any further extension of the
WTO�s competencies is rejected and demands for a fundamental reform
�with civil society's full participation� are raised. In the same
vain, sixty NGOs (among them Greenpeace International, Oxfam,
Friends of the Earth, World Wide Fund for Nature) authored in
1999 a �Joint-NGO General Statement� which demanded the inclusion
of an international parliamentary chamber and the integration
of the European Parliament.
[5]
![endif]>![if> To be sure, the potential of NGOs to directly oppose intergovernmental
policies is often limited and countered by efforts of other NGOs
who argue for quite the opposite. The violent protests of Seattle,
Goeteborg and Genoa, however, should be taken seriously as giving
expression to a widely held concern that postnational governance
must not escape democratic demands for participation and representation
if it the public perception of the legitimacy of postnational
governance is not to suffer. (b) Deliberation
and Legalisation
Although a high degree of representation of affected parties is an important
condition for the generation of successful deliberation, it is
by no means a sufficient one. Already without the participation
of NGOs, postnational political processes have to cope with a
multiplicity of diverging interests and preferences, struggle
to find collectively acceptable problem-solving philosophies and
are permanently in danger of failing to achieve any results at
all. It seems fair to assume therefore that a high degree of representation
only translates into successful deliberation if it is accompanied
by provisions which structure the discourse, help a social group
to cope with its diversity and to make meaningful discourse possible.
One way of reacting to the problem is to take
the insight seriously that modern societies have learned to cope
with their increasing complexity by developing a new role for
legal rules. While traditionally law acted as an instrument for
realising governmental objectives by listing pre- and proscriptions
for societal actors, much of modern law must be understood as
an instrument which aims at enabling complex systems to engage
in self-governance (Teubner/Willke 1984).
[6]
![endif]>![if> Modern law aims at structuring societal discourses
by establishing needs of justification, distinguishing between
good and bad reasons fur justifying actions and thereby forcing
actors to enter a discourse about the appropriateness of behaviour.
Its basic aim is not to identify the specific content of the common
good via assuming a superior knowledge of a governing actor but
to provide a normative support structure for self-governance.
[7]
![endif]>![if> It is not easy, however, to apply the concept
of law to postnational politics. Traditionally, legal norms are
defined by their authorisation on the part of a governing agent
who uses its monopoly of power for guaranteeing compliance (e.g.
Kelsen 1966). In postnational settings, no such monopoly of power
exists. Does that mean that legalisation is a strategy that is
suited for domestic politics only? A more promising alternative
for conceptualising legal norms is to follow recent efforts to
develop a gradualist understanding of law (Abbott et al. 2000).
In such a perspective, legal norms can be distinguished from mere
social norms by the degree to which rule addressees agree on institutional
means for eliciting compliance with them. It is especially three
institutional dimensions which are important and which refer to
the monitoring of rule application, the legal effect of rules
and the legal consequences in case of non-compliance.
[8]
![endif]>![if> All three dimensions must be understood as
being open to a great variant of different forms with differing
degrees of intensity: Monitoring can vary from relying in the
honesty of contracting parties to the establishment of reporting
obligations (human rights regimes and WTO), and finally to establishment
of a central institution with encompassing resources to directly
control compliance and even to conduct on-the-spot checks (as
in the EU). Legal effect can likewise vary from a mere agreement
(non-proliferation treaty) to the setting up of international
dispute settlement bodies (WTO) and can also mean giving direct
effect to international rules and granting standing for individuals
(EU). Legal consequences finally can take the form of announcing
non-compliant behaviour (shaming), entail the authorisation of
symmetrical retaliation on the part of a third party (as in the
WTO) or allow for the imposition of lump sums or penalty payments
(as in the EU). Taken together, representation and legalisation
must be viewed as important institutional requirements for facilitating
deliberation. Broad representation widens the scope of participants
in political discourses, enables stakeholders to pursue their
interests by means of constructive discourse and provides incentives
to abstain from extralegal political action. Legalisation is a
necessary instrument to structure the discourse and to provide
normative criteria against which preferences can be assessed.
It finally formalises interaction and provides for an institutional
frame that reduces problems of free-riding, settles disputes about
the adequacy of individual action and provides (dis)incentives
for (non)compliance. 3.4.
Deliberation, Sovereignty and Accountability
Although states can be assumed to have both an
interest in the facilitation of deliberation (under the conditions
specified above) and the means to do so, the practice of international
politics still has more significant elements of bargaining than
the analysis above predicts. The ubiquity of non-deliberative
political confrontations in the WTO, in the Human Rights Commission
of the United Nations or at Treaty reforming IGCs of the EU are
telling cases, which even the most sophisticated analysis would
have serious difficulties to dispute. A most important reason
for this gap between what should be the case and what can be observed,
is the fact that deliberation does not come without a price. Quite
on the contrary, it necessitates from governments and societies
alike to accept that their preferences are not intrinsically legitimate
� even if they are the products of domestic democratic procedures.
Deliberation relies on a well-established normative hierarchy.
Although deliberation is unlikely to happen under conditions of
material hierarchy, which is when one actor commands the resources
to act as benevolent or coercive hegemon, a legal or normative
hierarchy is a necessary condition. Otherwise it is impossible
to test the normative validity of an argument, which is the act
of testing the coherence of an argumentative act. As soon as they
are formulated at the international level, individual preferences
are only subjective claims of coherence with consented basic norms
and may be rejected by the international community if they fail
to withstand discursive scrutiny. By implication, neither the
idea of sovereignty that resides in a (national) parliament nor
that of sovereignty of a (national) people is easily compatible
with postnational deliberation. Because sovereignty can in a multi-level
context only be exercised in co-ordination with non-national political
entities, it presupposes an understanding of sovereignty that
is divided among national publics, parliaments and international
institutions (cf. Pernice 1999). Of course, states and societies cannot be expected to be ready for implementing
the necessary adaptations with the press of a button. A state-centred
understanding of sovereignty lies at the heart of statehood and
defines in large parts of the democratic world its identity. It
therefore is only realistic to assume that the implementation
of the necessary constitutional adaptations will only come about
as the product of a long-term learning process that necessitates
that both governments and societies cherish the promises of a
postnational polity more than they fear its costs. That this exercise
is far from automatic and smooth is underlined by the recent wave
of protests against international governance, the strong isolationist
tendencies in the U.S. under the current Bush administration
[9]
![endif]>![if> and the periodic popping up of anti-EU rhetoric
in populist parties in Europe. Overcoming fears of a democratic
deficit and � even more so - replicating the European
experience of a pooling of sovereignties on a larger scale, will
very much depend on the degree to which international institutions
are able to establish that kind of general trust on which national
democratic governance rests. Although it is difficult to formulate
easy recipes for dealing with complex issues such as accountability
in non-hierarchical multi-level systems (cf. Slaughter 2001),
it seems obvious that any significant progress presupposes a huge
leap towards increased transparency. It might seem banal to point
to the relation between the ability to control and the readiness
to trust but it nevertheless is worth mentioning: Only by giving
the people and the media the chance to directly observe what delegates
are doing and what positions they formulate for what reasons,
can the people be expected to trust in governance. A reversal
of the still dominant tradition of closed-door negotiations and
the opening up of institutions for public and media scrutiny therefore
is a major precondition for effective postnational governance.
4. On the legitimacy of postnational governanceWhilst deliberative procedures carry the promise
to transform international anarchy into a transnational discourse,
it can hardly be overlooked that any progress towards more postnational
governance meets with a number of serious criticisms. It has been
pointed out that the internationalisation of politics threatens
to strengthen the policy discretion of the executives, that international
bargaining is superimposing democratic deliberation, that national
Parliaments are increasingly bypassed and that public oversight
is loosing in relevance (to name just the most important concerns).
In sum, it is feared that the costs of an improved international
problem-solving capacity are largely paid in the currency of the
democratic content of politics (among many cf. Scharpf 1999, Greven
2000, Slaughter 2001). Against this background, postnational governance
seems to be a normatively ambivalent undertaking, torn between
the need to re-establish problem-solving capacity and the fear
of a reduced democratic content of politics (Dahl 1994). It is difficult, however, to assess the force of those concerns. Applying
normative standards always presupposes to distinguish among different
options and to chose the one which is adequate for its object
of concern (cf. Joerges 2000). If, for example, intergovernmentalism
is right, and governance beyond the state basically follows the
lines of international co-operation with the purpose of identifying
overlapping preferences, reducing transaction costs and maximising
collective utility (Keohane 1983), most normative concerns are
highly exaggerated. Likewise, if we follow the proposal of Majone
(1994) and treat postnational governance as being merely a kind
of outsourced technical agency with the task of setting standards
for the conduct of international trade in goods and services,
we will have little problems in justifying it, apart from demanding
even more insulation of policy making from the partisan concerns
of majoritarian decision-making and to reject any demands for
the integration of a redistributive element (Majone 1998). If
however, early functionalists are right, and postnational governance
follows the logic of ever closer integration (Haas 1964), we might
be far more sceptical, demand the integration of a full-blown
parliament and ask for institutional mechanisms to establish a
system of checks and balances among the legislative and the executive
branch of governance (Mancini 1998). As becomes clear, any assessment
of the validity of normative concerns depends on the identification
of an adequate normative standard, which in turn presupposes to
have an analytical concept of postnational governance. This paper does not side with any of the camps
mentioned but has employed a fourth perspective according to which
the postnational constellation both implies the danger of a reduced
democratic content of politics and the chance to promote a new
political structure which is more effective, efficient and leads
to higher quality outcomes. The corresponding recipe for dealing
with the postnational constellation focuses on the adaptation
of formerly nation-state restricted democratic procedures to the
changing socio-economic and political realities. It offers a third
way of conceptualising political order beyond hierarchy and anarchy
that centres on accommodating the different democratic systems
of its member states by means of discourse without aiming to replicate
the national state on a European or international level. Following
a deliberative-heterarchical understanding of postnational governance,
effective and legitimate policy making demand very much the same
answer. Both can be promoted by a set of procedures which bind
the three levels of governance into one discursive structure:
At the international level, a high degree of legalisation is necessary
to provide an institutional frame with binding decision-making
and �application procedures that allows for non-coercive enforcement.
At the transnational level, the integration of private interest
groups is required to give voice to domestic concerns and provide
for a critical reflection of predominant problem-solving philosophies.
This participation is crucial in order to relieve the tension
between domestic and intergovernmental rationalities and to generate
social acceptance for international regulations. Therefore, what
counts in the process of shaping post-national governance is the
search for a complex set of procedures that can bring about a
continuous discursive process among international organisations,
governmental addressees and affected domestic parties on collectively
acceptable regulations and the modalities of their application.
Transparent multi-level deliberation is the first best means to
realise that objective. One may question whether such a political structure
deserves the label �democracy�. Maybe not. Maybe it only takes
issue with legitimate postnational governance rather than with
democratic postnational governance (cf. Joerges 2000). That, however,
must not be a weakness of the approach but can be defended for
the reason that it is not yet clear how some of the crucial preconditions
of a democratic polity can be realised in multinational multi-level
contexts. Demands for a full-blown European or even global democracy
must take the concern seriously that a full blown democracy demands
the existence of a living public sphere in which positions and
preferences are exchanged and mutual learning takes place (Rawls
1997). That, however, will be difficult to realise in the foreseeable
future beyond the state. A deliberative heterarchical approach
to postnational governance therefore takes the principle of subsidiarity
seriously by abstaining from any unnecessary relocation of authority
and leaving the democratic nation-state as intact as justifiable. The idea of a cross-border and cross-level political
discourse, finally, does not pretend to lead to a perfect world
in which all normative problems are solved. Asymmetrical power
distributions in terms of material, normative and cognitive ressources
will even under conditions of deliberation remain important elements
of the empirical world. As readers will know, making good arguments
necessitates the investment of ressources. The promise of deliberation
therefore may be largely confined to those who can afford the
investment, which basically implies a restriction of the attractiveness
of the concept to intra-OECD relation. For making it a tool applicable
on a larger scale, deliberation needs to go hand in hand with
redistributive elements, aiming at spreading expertise and empowering
actors to participate in communicative settings. Contributing
to this process, finally, is not only in the interest of those
who remain unheard today. If it is true that the public perception
of the legitimacy of postnational governance becomes an increasingly
important factor for its effectiveness, even strong states will
have incentives to transform power dominated diplomacy into transparent,
fair and rule-oriented discourses. This might sound visionary,
but what is the alternative?
|