In Defense of IRAss Democratic Legitimacy

Abstract

Delegation of public authority to independent regulatory agencies (IRAs) has raised the question of their democratic legitimacy. This question has been largely debated along the following two lines. First, judged against the traditional way of ensuring democratic legitimacy (elections) the democratic legitimacy of IRAs has been usually assessed as problematic. Second, given the subordinated place of IRAs’ decisions in the hierarchy of norms and the ‘standard using’ nature of their powers, the necessity of legitimizing IRAs democratically has been questioned. This paper addresses both debates. It stresses the necessity of legitimizing IRAs democratically in a way which is proportionate to their impacts on the public. Furthermore, it argues for assessing IRAs’ democratic legitimacy against a proper reference level, i.e., the constituting elements of democratic legitimacy, which this paper defines. These include authorization, accountability, safeguards, and efficiency in output. While democratic legitimacy can be ensured and hence assessed at the hand of these elements, in the case of IRAs individual components of the formula can exist only at each other’s cost, i.e., ‘authorization by means of participation vs. efficiency in output’ and ‘accountability vs. independence’, where independence is important in promoting efficiency in output. These dilemmas need to be taken into account when developing an assessment framework to measure individual elements constituting legitimacy because they need to be balanced with each other.