Democracy in contested territory: on the legitimacy of global legal pluralism

Abstract

ABSTRACT The proliferation of law-making beyond the nation-state has produced a landscape of thoroughgoing ‘global legal pluralism’ (GLP), in which legal regimes overlap in the same social field. Individuals find themselves under the rule of multiple and conflicting regimes, some of which have no ties of accountability to democratic constituencies. GLP thus rouses a perplexing picture of globalization as it untethers law-makers from jurisdictions, and governance from constituencies. Is democratic legitimation possible within the tangled spaces of governance that characterize the post-national constellation? I argue that yes, democracy is possible in a legally plural world. Specifically, GLP is compatible with democratic principles when restricted by a territorial principle, which limits legal pluralism to authorities with the potential to be legitimated by territorial constituencies, and this is because territorial enmeshment is politically fundamental. However, I also argue that the reconciliation of overlapping rule and democracy requires rethinking territory as a non-sovereign jurisdiction, i.e. territories must be conceived as overlapping and contested. This conception of territory includes not only states, but also municipalities, supranational federations, and other possible territorial forms. The territorial principle should therefore be understood in line with cosmopolitan calls to theorize democracy beyond the sovereign nation-state.