Abstract
In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.
Highlights
In this essay, I approach the question of privatization from a normative political theory perspective
I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state
My concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization’s threat to democratic self-government under both domestic and international public law
Summary
I approach the question of privatization from a normative political theory perspective. Where we differ is that I proceed from a clear commitment to the rule of public international law, but, above all, to democracy and democratic legitimacy as the real stakes of privatization both domestically and internationally This does not mean that the effort to delineate “inherently sovereign functions” would apply only to democratic states, but rather that the principles one arrives at regarding what should be properly in the domain of public power and directly or indirectly regulated by public law involves normative and aspirational questions that must be addressed through democratic processes. Human rights law points us in the right direction by turning the legal gaze away from horizontal duties between states in the international society of states to obligations
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