Constitutionalization, Not Democratization: How to Assess the Legitimacy of International Courts

The Legitimacy of International Courts. N. Grossman, H. Cohen, A. Follesdal & G. Ulfstein, eds. Cambridge, Cambridge University Press, Forthcoming

28 Pages Posted: 25 Apr 2017

Date Written: April 23, 2017

Abstract

Several authors - including Armin von Bogdandy and Ingo Venzke, Allan Buchanan and Robert Keohane, Gráinne De Búrca, and Nienke Grossman address the legitimacy deficits of international courts (ICs). They propose the 'democratization' of ICs, by which they often mean to increase their transparency, accountability or participation by various parties. There are other, better reasons to value transparency, accountability and participation concerning ICs than as building blocks of democracy, namely insofar as they contribute to valuable forms of constitutionalization of the global basic structure. More transparency, accountability or participation is often but not always beneficial. Moreover, they can be valuable even when such changes do not advance democracy of the kind worth having: widely dispersed institutionalized control in the form of elections based on prior public deliberation, whereby individuals can influence the rules that shape their lives. We should not assume that democracy is the touchstone for all legitimate modes of governance. Three related issues should be isolated to foster constructive discussions and sound extrapolation of normative premises for legitimacy familiar from domestic constitutional thought and political theory. We should distinguish between democratic institutions of decision-making, the normative principles that justify such institutions, and important features of such institutions that contribute to their justification, such as accountability, participation and transparency. It is only calls for the first of these – formalized institutions of decision-making – which should be considered democratication proper.

Keywords: international courts, legitimacy, Von Bogdandy, Venzke, Buchanan, Keohane, Gráinne De Búrca, Nienke Grossman, constitutionalization

Suggested Citation

Follesdal, Andreas, Constitutionalization, Not Democratization: How to Assess the Legitimacy of International Courts (April 23, 2017). The Legitimacy of International Courts. N. Grossman, H. Cohen, A. Follesdal & G. Ulfstein, eds. Cambridge, Cambridge University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2957068

Andreas Follesdal (Contact Author)

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

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