Towards Legitimacy in Above-National Rule-Making: Proceduralisation in Multi-Stakeholder Public Regulation
‘Law & Legitimacy’ (eds. Per Andersen and Bjarke Viskum), Copenhagen: DJØF Publishing, Forthcoming
21 Pages Posted: 30 Sep 2014
Date Written: September 28, 2014
In view of the growth and economic as well as political and lobbying power of private transnational and other businesses, the inclusion of business in rule-making organised under intergovernmental organisations offer interesting perspectives. Yet the inclusion of business in such rule-making also offers a range of legitimacy challenges. Focusing on the process that connects the ‘input’ to the ‘output’, this chapter discusses legitimacy from the ‘throughput’ perspective. The focus is on proceduralisation, informed by Jürgen Habermas’ theory of deliberative law-making. With a point of departure in the socio-legal reflexive law regulatory theory, proceduralised equalisation of participation in the process of deliberation is suggested as a modality to close a significant gap in reflexive law theory as regards balancing power disparities. The discussion highlights that combining these otherwise diverse theories offers interesting benefits in order to address important legitimacy challenges related to global regulation and decision-making on global sustainability challenges.
Keywords: legitimacy, participation in rule-making, multi-stakeholder rule-making, the role of private non-state actors in international law, deliberation, power disparities, proceduralisation, global regulation, reflexive law
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