Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law

Abstract

One of the key achievements of anti-globalization movement was to trigger a wide-ranging debate about the legitimacy of the governance structures that control the international arena. The anti-globalizers accuse international organizations such as the WTO or the IMF as being undemocratic, and call for a radical reform of these organizations, with the goal of producing more democratic regimes. While it is hard to doubt the genuineness of the anti-globalization critique, and the deep aspiration for a voice that underlies it, its theoretical and pragmatic implications remain unclear. Two questions seem to lie at the heart of this difficulty. First, what does the notion of legitimacy mean in the transnational context? Second, in what sense does the call for democratization solve the problem of legitimacy? These questions point out the deep problematic of the linkage between legitimacy and democracy at the transnational level. This article considers this problematic by taking a closer look into this coupling. In its first part (sections I to III) the article reviews some of the more prominent responses to the challenge of transnational legitimacy: from the Westphalian-inspired concept of indirect democratic supervision, to the more universalistic ideas of NGOs-led democratization and directly deliberative democracy. It is argued that none of these narratives provides a convincing response to the democracy/legitimacy puzzle. The fragility of the legitimacy/democracy connection points to the need for an alternative understanding of legitimacy, for another standpoint from which to observe the current calls for the democratization of transnational law. The article concludes (sections IV and V) by proposing an alternative interpretation to the concept of legitimacy (vis-a-vis democracy) drawing on the ideas of creative norm-making, creative institution and social pluralism.