Human Rights Do Not Make Global Democracy ***

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Human Rights Do Not Make Global Democracy Eva Erman (Draft version, please do not quote or circulate) Abstract On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. While the article is sympathetic to this ‘human rights approach’, it defends the thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) or popular control, i.e. that people should determine their own lives and rule over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman nor Goodhart’s account fulfils these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (e.g. institutions, laws, norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart’s work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman’s work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. While the paper develops both a conceptual and a normative argument against their proposals, the aim is not to find faults with them but to point at questions that are in need of further elaboration to make them more convincing. Keywords: global democracy; human rights; Bohman; non-domination; Goodhart; political equality

*** Introduction On most accounts of global democracy, human rights are ascribed a central role. It is generally agreed that, to the extent that we wish to apply democracy globally, we must apply some basic rights globally too. At the same time, the conceptualization of human rights in these proposals is often unclear. They are commonly expressed as a moral standard for politics, as a legal and institutional framework for democratic decision-making, or as a way of ‘doing’ global politics in themselves. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart, each of whom in a novel way makes an effort to clarify the conceptual role of human rights in global democracy. What is particularly interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Thus, both in different ways challenge contemporary conceptions by radically reformulating democracy in light of the current conditions of world politics, detaching it from traditional characteristics such as representation, electoral vote, self-legislation,

2 territoriality and unity. While I am very sympathetic to this ‘human rights approach’, not least its innovative way of rethinking democracy on the global level, important questions are still left unanswered. The article defends the thesis that human rights are not enough for global democracy. The argument pursued is that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) or popular control, i.e. that people should determine their own lives and rule over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further it is argued that neither Bohman nor Goodhart’s account fulfils these conditions and that one explanation for this can be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (e.g. institutions, laws, norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart’s work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman’s work it becomes unclear whether he contributes a normative theory of democracy or a theory of democratization. While the paper develops both a conceptual and a normative argument against their proposals, the aim is not to find faults with them but to point at questions that are in need of further elaboration to make them more convincing. I. Global democracy through human rights Goodhart and Bohman both point at several features of the present day conditions of politics which warrant a further and more radical rethinking of democracy, not only concerning form but also at the basic conceptual level. Processes of globalization have produced a massive growth in governance beyond traditional nation-state structures, which have fuelled a debate about democratic legitimacy in light of increasing asymmetries between rulemakers and rule-takers, inequalities among states, and disparities in scope between global political problems and existing democratic state institutions (Goodhart 2005: 13; 2008: 39597). These emergent patterns have been met by two major responses in political theory. One solution is offered by cosmopolitan democratic theorists, such as David Held, who argue that these problems are best handled by supranational governance structures within a firm legal framework. Another is offered by civil society theorists, such as John Dryzek, who emphasize the key role played by transnational non-state actors for decreasing the democratic deficit of international organizations (Held 1995, 2002; Dryzek 2006). Both Goodhart and Bohman are dissatisfied with these two proposals, or at least find them insufficient, in part because they do not expose the richness of human rights spelled out as the core of global democracy.

3 Cosmopolitan democrats suggest the creation of institutions and channels of representation for all individuals so that they could be “directly represented in global affairs” (Archibugi 2002: 32). A few cosmopolitan principles constitute an overarching cosmopolitan law which specifies the organizational basis of legitimate public power, according to Held. This way sovereignty, the idea of rightful authority, is divorced from the idea of fixed territorial boundaries and thought of as an attribute of basic cosmopolitan law (2002: 32). In Goodhart’s view, however, Held analyzes human rights primarily in juridical terms (2005: 24-25). Laying stress on how supranational courts should monitor and enforce human rights, he does not have much to say about human rights understood in terms of empowerment (2008: 399). The civil society approach, or what Goodhart calls discursive global democracy, pays even less attention to human rights than cosmopolitan theorists. It emphasizes the role played by civil society actors such as social movements and NGOs in encouraging the protection and promotion of human rights, but overlooks the rights framework which make such actions possible (Goodhart 2008: 404). A general problem of both of these contemporary conceptions of global democracy, Goodhart argues, is that they focus mainly on democracy’s mechanisms rather than its core principles and key functions. Going through the numerous struggles to end oppression in history, Goodhart wishes to expose the human rights core of democracy, defining this core as a political commitment of universal emancipation through the securing of basic human rights for everyone (2005: 5, 137-38). Democracy on Goodhart’s account is animated by the two fundamental principles of freedom and equality, which in his view at the minimum require constraints on the exercise of power and political agency. Constraining power and enabling political agency constitute two core aims or functions of democracy that “derive from the fundamental principles of freedom and equality and are widely accepted” (2008: 406). While constraint on power ensures the integrity and autonomy of persons, political agency provides opportunities for them to deliberate, contest and have an influence on political processes and outcomes. Human rights dovetail into this view precisely because they also articulate aims rather than mechanisms (Goodhart 2005: 141-48). They describe what should be achieved rather than how it should be achieved, and thus constitute “ethical standards for legitimate governance at all levels and binding on all actors” (Goodhart 2008: 403). On the global level, constraining power and enabling political agency require the protection of human rights, and Goodhart makes the case that the conceptual role that human rights play in global democracy is that they “are a necessary condition for global democracy” (2008: 396). Furthermore, he offers four reasons why “[h]uman rights are

4 necessary for achieving democracy”. Firstly, they attach to persons rather than specific jurisdictions; secondly, they are globally recognized standards of legitimacy, binding to both state and non-state actors; thirdly, they have the advantage of not requiring a comprehensive political framework such as that elaborated by cosmopolitan theorists; and finally, they articulate what should be achieved and are therefore flexible enough to adapt to diverging forms of governance structures globally (2008: 403). Goodhart in fact pushes the argument one step further, suggesting that human rights are possibly “a sufficient condition for global democracy as well” (2008: 416). While the argument for necessity relies on the idea that the two main functions of democracy (viz. constraint on power and political agency) can be translated into human rights requirements, the argument for sufficiency relies on the idea that democracy could reasonably be interpreted “precisely as a political commitment to realizing freedom and equality for everyone through the protection of human rights” (2008: 416). Another innovative human rights approach to global democracy is offered by Bohman. Bohman attempts to lay out the conceptual foundations of transnational democracy by way of a theory of republican federalism, the normative core of which is not freedom and equality as general principles, in line with Goodhart, but freedom as nondomination. Domination is ascribed the republican meaning of ‘rule by another’ and political domination alludes to the arbitrary use of normative powers to impose obligations on others. In a political context, robust nondomination on Bohman’s account means to have the normative status to be able to create and regulate obligations together with others (Bohman 2007: 9). Similar to Goodhart, Bohman is dissatisfied with both Held’s cosmopolitan democracy and Dryzek’s civil society approach because neither embrace “the most fundamental necessary condition for democratization: the power to initiate effective public deliberation” (2007: 14). Even though Held emphasizes a multilayered system and a variety of institutions the idea of a self-legislating demos, of citizens ruling and being ruled in return, is still fundamental. Held insists that a global political framework—functioning as a would-be sovereign by way of an attribute of cosmopolitan law—is the subject of popular will and consent. In order to be overarching, however, this framework must be constituted by a hierarchy of authority, and as such it cannot exercise the power of the demos without being a potential dominator, according to Bohman (2007: 42). In contrast to Held’s institutional maximalism, the problem with Dryzek’s minimalist account is that in emphasizing informal networks in which civil society actors play a crucial discursive and contestatory role, it neglects the importance of active and empowered citizenship. Bohman is sceptical of whether contestation is really what the dominated require (Bohman 2007: 43). From Bohman’s more

5 institutional point of view, deliberation rather than contestation is the proper democratizing activity. In contrast to both the cosmopolitan and civil society-based conceptions of global democracy, Bohman argues that his republican account is better suited to fulfil the power to initiate effective public deliberation, which constitutes a necessary condition for democratization. This is done through the so-called democratic minimum, which is sufficient to accommodate not only the constitutive features of democratic citizenship, but also the necessary conditions for nondomination (2007: 43). Thus, this minimum alludes to the “minimum set of powers and conditions that would make it possible for citizens to not be dominated and thus be free to make claims to justice” (2007: 35) viz. for citizens to be able to form and change the terms of their life (2007: 46). The advantage of the minimum is that it is realizable without appealing to a single democratic demos tied to a juridical model of selflegislation, as suggested by cosmopolitans. Rather, the idea of nondomination decentres this conception and demands that citizenship is exercised in a variety of overlapping demoi (Bohman 2007: 11). While Bohman’s argument for moving from demos to demoi draws on social facts about globalization and pluralism and some basic conditions of the public sphere, the argument for the distinctly republican view of transnational democracy “follows as a consequence of these conditions” (2007: 12). Rather than considering rights to be claims of juridical subjects to the protection from interference, which is a standard liberal view, transnational democracy reconstructs rights as normative powers and statuses in the political sphere sufficient to promote nondomination. Thus, on this view, political rights are rights against domination (2007. 13). II. Global democracy: concept and conception Both Goodhart and Bohman criticize Held for interpreting the democratic ideal of selfdetermination (self-rule) in terms of a self-legislating singular demos and Dryzek for eschewing the role of democratic institutions for self-determination. In their view, neither conception does full justice to the multiple normative resources inhabited by human rights. While Goodhart expresses his normative democratic theory in terms of enabling rights and agency rights, Bohman expresses his ideal of transnational democracy through the democratic minimum, which is articulated in terms of basic human rights. Both disengage from the traditional conception of democracy defined as self-legislation or self-government through an electoral system within a bounded political community, but at the same time

6 wish to keep the normative ideal of democracy as self-determination (self-rule) or popular control. Bohman explicitly says that democracy is “an ideal of self-determination in that the terms of self-rule are made by citizens and not by others” (2007: 45). Moreover, he argues that this particular kind of self-rule is achieved in a robust way by republican transnational democracy (2010: 72). Expressed through basic human rights, the democratic minimum refers precisely to the conditions which make it possible for citizens to form the terms of their own lives. Similarly, although Goodhart is not as explicit about articulating the core of democracy as self-determination—perhaps because it is too easily associated with selflegislation and electoralism within a bounded territorial unit—he acknowledges it as fundamental. Indeed, the very purpose of constraining power and enabling political agency through human rights is to enable people “to shape the terms of their collective interactions and enterprises and to hold government to account” (Goodhart: 2008: 401). In radically rethinking global democracy in light of globalization and the new circumstances of politics, it is important that the original meaning of democracy “remains unchanged”, according to Goodhart (2008: 402). Thus, Bohman and Goodhart both wish to separate the normative democratic ideal of self-determination from mechanisms connected to the Westphalian model, such as representative institutions, voting, legislation and a bounded community. In their view, these mechanisms are only one way of achieving this goal, a way which is not particularly suited for democracy beyond or across the nation-state (Goodhart 2008: 401). Instead, on the transnational and global levels, basic human rights are claimed to better achieve this. My argument here is conceptual and normative. I argue that to the extent that Bohman and Goodhart aspire to conceptualize democracy as a normative ideal of selfdetermination—broadly understood as the idea that people should shape their own lives and the terms of self-rule—two necessary conditions need to be fulfilled, namely, political equality and political bindingness. Since these conditions are conceptually necessary from the point of view of normative democratic theory, or so I argue, they are part of the very concept of democracy (understood as self-determination). However, I cannot see how their respective human rights approach manage to accommodate them. For that reason I am doubtful as to whether or not Bohman and Goodhart contribute novel normative theories of democracy on the global level. The debate on global democracy attempts to rethink the concept of democracy in light of globalization, transferring democracy from the nation-state to the global level in search for a suitable solution of transnational and global governance structures. This is often

7 described in analytical terms as a distinction between concept and conception. Conceptions share some central characteristics, without which they wouldn’t refer to the same concept. So the different conceptions of global democracy discussed earlier share some necessary conditions that must be fulfilled in order to speak about one and the same thing, namely, democracy. This distinction is a useful tool in political theorizing.1 If we didn’t differentiate between a general concept of democracy and more specific conceptions, we could neither identify any necessary conditions or features of democracy, without which we could not compare different normative democratic proposals, nor know when there are enough differences in our conceptions to arrive at a different concept. As soon as we have done the latter, we have removed the prefix ‘re’ from the word ‘rethink’ in our analysis of democracy. Of course, as acknowledged by Wittgenstein, a boundary of a concept is always bound up with its purpose. For scholars engaged in the debate on global democracy the purpose is to give suggestions for how to best strengthen the democratic legitimacy of global governance. So, while concepts are indeed reformulated and reshaped by their application or use in discourse, conceptions only belong to the same concept if they share some characteristics, or, some ‘family resemblances’ (Wittgenstein 1953). And different networks of family resemblances are kept apart in relation to the purpose of the concept at hand. If one finds it reasonable to define normative democratic theory as an ideal of selfdetermination, i.e. of people forming their own lives and ruling over themselves (directly or indirectly) by taking decisions about matters of common concern, then one has to specify in more detail what makes this self-determination democratic. One characteristic that distinguishes democracy from other forms of government, such a dictatorship, monarchy, or aristocracy, is that it is egalitarian. In a democracy everyone is equal in the sense that they have the same political power, i.e. a necessary condition is political equality. While equality plays an important role in democracy in several respects (e.g. in terms of equal respect or equal concern for everyone’s interest), what is of concern here is democracy as a system of self-determination in which anyone who is affected by or subjected to a political decision (or law), has the free and equal possibility of participating (directly or indirectly) in egalitarian decision-making about it.2 Further, democracy as a political system of self-rule requires that those that are affected by or subjected to a political decision (or law) as its addressees are simultaneously made authors of it, viz. that they bind themselves to a political authority through a particular kind of political action. This means that another necessary condition for democracy is political bindingness. Note that the argument here does not hinge upon a certain reading of these conditions, for example, in terms of a specific version of the all-affected principle. Rather, they are compatible with both an ‘all affected’ view (e.g. in line with

8 cosmopolitan democracy) and an ‘all subjected’ view (e.g. in line with Jürgen Habermas’ democratic principle) (Habermas 1996). Let me dwell a little bit more on these two conditions. Both Bohman and Goodhart are sceptical of democratic self-determination interpreted as self-legislation (Bohman) and selfgovernment (Goodhart), since the mechanisms that are supposed to secure this ideal are still intimately connected to the state as the natural container of politics. In Goodhart’s view, the Westphalian conception of the state is characterized by a presupposed symmetry among citizens and the political authority, self-rule through a system of elections and representation, and supremacy within a unified territory. However, this is not what the two necessary conditions require. Conceptually, it would be odd to argue that democratic selfdetermination is premised on a system of elections connected to a unified territory, since we could reasonably call a small group of people democratic, a small political organization if you will, which fulfilled political equality and political bindingness. Thus, rather than being a necessary condition for the concept of democracy, Bohman is correct to argue that the selflegislation model constitutes only one conception of global democracy. In fact, the two necessary conditions proposed here are not premised on a territorial boundary at all. Again, we do not have to presuppose that the members of a small political organization would have to live near one another in order to determine their own lives, rule themselves, through egalitarian decision-making. The territorial boundary is not the kind of boundary on which democracy as an ideal of self-determination relies. Moreover, it seems to be primarily an empirical, not a conceptual question, whether large-scale democracy is best realized within a territory or not. Still, democracy is not borderless. Rather, it presupposes a boundary (or boundaries if we refer to a multilayered system or a republican ‘horizontal’ demoi) within which people participate in egalitarian decision-making and bind themselves to political authority as free and equals. Regardless of whether it is a national, regional or global boundary, territorial or non-territorial, held together by social solidarity or not, it is in this particular sense that a democracy is bounded. Hence, when we refer to the members inside, we are not referring to any kind of people or whichever people, but a people of a specific political sort, namely, citizens. If we take a closer look at the condition of political equality, equality is a fundamental or core principle for Goodhart. It is from the core principles of equality and freedom that he arrives at democracy. But the concept of equality is too broad to do the normative work required by the political kind of equality presupposed by a democratic system. Indeed, any contemporary moral theory, be it concerning justice or something else, starts out from

9 equality. For example, in the global justice debate the controversy is not about equality or not; it is about whether equality is best understood as a value, norm or principle, and about its appropriate scope or applicability. So, the concept of equality in the abstract does not take us very far, either in moral theorizing generally, or in democratic theorizing. Political equality is a specific conception of equality, which is a necessary condition for the concept of democracy. It refers to the free and equal possibility of participating (directly or indirectly) in egalitarian democratic decision-making, i.e. an equal possibility of an equal say in the taking of decisions or in the making of the law. This means that in democratic theory, political equality has to do with a particular kind of agency, namely, democratic agency. The closest Goodhart gets to meeting this condition is when stating that the democratic function of agency is to ensure opportunities for people to influence, participate in, and contest decisions that affect them. It is primarily enabling rights which are supposed to protect such agency. Translated into human rights, they are supposed to be integrated into the rules and procedures of global governance institutions to create and secure sites of access, public debate, transparency, contestation and deliberation.3 However, it is not clear to me how sites of public debate, contestation and deliberation are able to secure political equality. Without doubt, we might have unequal access to these sites and most probably will. To our present knowledge, the most feasible way of securing such an equality in modern pluralist societies is through the idea of ‘one person, one vote’. However, this option is not open to Goodhart since elections of any kind are immediately coupled together with Westphalian thinking. I am not saying that elections are the only possible means to guarantee political equality. Rather, it is argued that political equality is a necessary condition for democracy (elections are one way to achieve this), and that securing sites of public input alone will not fulfil this. Admittedly, on many accounts of democracy, ‘formal’ political equality through voting, while being a necessary condition is not a sufficient one, but must be complemented with an ‘informal’ kind of the sort that Goodhart elaborates. But this is a different matter. Bohman too takes agency seriously by placing communicative freedom in terms of the capacity to initiate deliberation in the focal point of the analysis, emphasizing that the republican ideal of transnational democracy requires at least some common global institutions to secure liberty and nondomination, i.e. the capacity of citizens to initiate democratic reform. In his view, the problem of the democratic deficit of global governance institutions is not a general deficit but a “deliberative deficit” in terms of a lack of this capacity among citizens (Bohman 2007: 16). However, although political equality is mentioned in Bohman’s working definition of democracy, according to which individuals

10 should be empowered as free and equal citizens, he never elaborates what this would mean on a republican account. On a few occasions he describes political rights as “equally basic freedoms” but it is far from clear what equal freedoms mean in terms of political equality. In my view, Bohman would have to offer a reinterpretation of this condition in republican terms in order for his transnational democracy to accommodate the necessary condition of political equality. Thus, while both Goodhart and Bohman pronounce the possibility of agency, they do not say much about equal agency. The second necessary condition for democracy is what I referred to as political bindingness. This condition is not only concerned with equal agency but also with actual agency i.e. the ‘doing’ rather than the possibility or capacity of doing. A democratic system consists of two parts, a political authority and a citizenry, i.e. a group of people affected by or subjected to its rule. To say that, for example, a state has authority is to say that the state and its subjects have a certain kind of normative relationship. In political philosophy the concept of legitimacy is commonly used to describe the normative aspects of this relationship (Christiano 2008). It refers to a rightful authority or a rightful powerholder. While there have been many candidates for how to best ground rightful authority, for example in associative obligations (Dworkin), in reasonable consensus (Rawls), or in tacit consent (Locke), what is of interest here is one kind of legitimacy, namely democratic legitimacy. As mentioned, a democratic system requires that those affected by or subjected to a political decision (or law) as its addressees are at the same time authors of it. Thus, in order for a political authority to uphold its democratic legitimacy, people in one way or the other (directly or indirectly) have to give their approval—thereby accepting its decisions as binding. Of course, depending on which democratic model is favoured, this moment of bindingness occurs in different ways, for example, by a periodical formal voting procedure on Schumpeter’s account, or by a combination of formalized deliberative decision-making and continuous informal opinion- and will-formation on Habermas’ account (Schumpeter 1950; Habermas 1996). Since the notion of bindingness might invite to a Kantian or a Rousseauian reading, let me specify this condition more carefully to avoid a misreading along these lines. While political bindingness is a normative condition, it must be interpreted in sufficiently weak terms in order to be a necessary requirement for the concept of democracy. For one, it should not be interpreted in terms of obligations, neither as an individual obligation in the Kantian sense, nor as a collective obligation to participate in a general or common will. Further, the condition does not presuppose moralized political action in terms of doing what is right. What political bindingness alludes to is something much weaker. It presupposes the

11 following: that at least some people (among those being affected by or subjected to the decisions/laws) at least sometimes affect the political outcome of the democratic decisionmaking processes. This means that the condition of political bindingness is to be understood in objectivist rather than subjectivist terms. For it is not enough that citizens feel that their interests are somehow being represented by the political authority in question. Some factual political action is required. For that reason, political bindingness cannot be hypothetical all the way, so to speak, relying solely on an idea of reasonableness or acceptability, because then we are not dealing with normative democratic theory anymore but with some other normative ideal, e.g. a theory of justice. Goodhart’s emphasis on the possibility of political agency through enabling rights for improving the possibilities of access, deliberation and contestation, would not suffice to meet the condition of bindingness, since it could mean that no one approved of the political authority in practice. Furthermore, it is hard to see how a ‘negative’ view of agency in which political rights are defined as rights against domination, such as Bohman’s, could ever secure political bindingness, since bindingness requires political action. On the republican view, citizens exercise their political powers, most importantly the power to initiate deliberation, in multiple overlapping demoi. The democratic minimum refers to the set of powers and conditions that would make it possible for citizens to not be dominated and to determine their own lives. Expressed in terms of human rights, this minimum requires that political rights, i.e. rights against domination, be universalized. However, standing by itself, this minimum cannot fulfil the condition of bindingness. For even if we dismiss the idea of selfdetermination understood in juridical terms, as self-legislation, for citizens to rule/determine over themselves, they must have the equal possibility of participating (directly or indirectly) in egalitarian decision-making about rules or norms by which they are supposed to abide. Since citizens’ political rights are only actionable by their having a say in the outcome of the democratic decision-making procedure, at least some of them sometimes, the power to initiate deliberation, no matter how well performed, is not enough for democracy even on a minimal account. A similar criticism against Bohman is raised by Cristina Lafont. She argues that, pace Bohman’s polemic dismissal of the traditional conception of democracy, a political system in which members are subject to political decisions but at no point authors of them would not be democratic. A minimal condition would require that they have control over at least some outcomes of the decision-making process. What Lafont misses in Bohman’s republican account is a specification of the mechanisms that would “transform deliberative freedom into

12 effective control of the outcomes of some (transnational) political decision-making processes” (Lafont 2010: 17). Thus, it is argued here that a moment of bindingness is not merely to do with the capacity of agency but of acting agents. Consider a political system within which every citizen had the possibility of influencing the political decision-making but no one ever did. It would be absurd to call this system democratic. We rarely give this a thought since we always presuppose that enough people do. While the condition of political bindingness itself does not specify a threshold, it presupposes that there is such a threshold. Similar problems are sometimes labelled the Sorites paradox in analytic philosophy. The paradox refers to ‘littleby-little’ arguments and to the question of when, for example, a heap of wheat is a heap. For if we remove one grain at a time, we cannot tell when it ceases to be a heap. Thus, no particular grain can be identified as making the difference. Still, we know that only a few grains do not make a heap. Although there is a threshold, it is characterized by vagueness. Similarly, the justified threshold for the number of people necessary to approve of a political authority (directly or indirectly) to make it democratically legitimate, will probably vary between different democratic theories. The point made here is only that political bindingness, which harbours a threshold, is a necessary condition for democracy. I am not suggesting that voting is the only way to achieve political bindingness, but it is one way, and it is difficult to see how large-scale pluralist societies could do without it if they are to fulfil this necessary condition. For even if an electoral system does not itself guarantee any votes, it is an indirect warranty for bindingness in that we would know when a threshold had been reached and could do something about it if it hadn’t. Thus, without it we would not even know whether people in fact have had an influence over some of the outcomes of the political decision-making processes. III. Democracy as normative ideal vs. democracy as decision method What I have tried to show so far is, firstly, that a normative democratic theory (defined in terms of an ideal of democratic self-determination) which does not accommodate the two necessary conditions of political equality and political bindingness is hard to reasonably call democratic; and secondly, that Goodhart and Bohman in articulating transnational or global democracy through human rights seem unable to offer a specification of how to secure these two conditions. In other words, human rights are not a necessary and sufficient condition for global democracy, but at the most a necessary condition. In the present section, this failure is traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method (or rules) for regulating social interactions. My

13 contention is that both Goodhart and Bohman could avoid much of my criticism were they to remove this ambiguity. The two defended necessary conditions for democracy concern democracy as normative ideal, or what usually in political theory comes under the heading of normative democratic theory. Roughly, a normative ideal specifies an ultimate goal that we strive towards, such as the just or the good society, for example articulated as a regulative ideal or an ideal to be realized or approximated. Democracy broadly defined as self-determination (self-rule) is one such ideal, alongside of numerous others, such as utilitarianism, which states that we should strive towards maximizing people’s (expected) well-being. In political theory, we are familiar with different versions of the democratic ideal of self-determination, e.g. representative democracy, agonistic democracy and deliberative democracy. The version that both Goodhart and Bohman primarily oppose is democratic self-determination understood as self-legislation. But democracy could also be theorized as a decision method, a practical device or as a matter of institutional arrangements. Moral philosophers carefully separate normative ideals from practical decision methods for regulating social interactions (e.g. norms, rules, institutions, laws) used to achieve the goal specified by an ideal. The ideal is used together with empirical considerations to evaluate alternative practical devices for different social contexts, such as institutions, social norms and laws, in respect to how well they would promote the ideal. However, as acknowledged by Gustaf Arrhenius, this distinction is sometimes overlooked in the debate on democratic theory (Arrhenius 2005: 15-16). If one defends democracy as the ultimate foundation of legitimate political authority, one has democracy as normative ideal in mind. But one might also justify democracy as decision method from another normative ideal. In this case legitimate political authority does not derive from democracy. For example, for a libertarian, democracy is justified only insofar as it protects the right to life and property; while for a utilitarian, it is justified if and only if it maximizes people’s well-being better than other methods (Arrhenius 2005: 17-18). Of course, viewing democracy as decision method does not mean that it is necessarily reduced to an instrumental value. It might have intrinsic value as well (as we will see in Bohman’s case below), depending on how democracy is defined. Now, if we take a look at the two versions of the human rights approach in light of this distinction, important questions arise. As we have seen, Goodhart clearly wishes to contribute a novel normative democratic theory, which in his view is more fit for the present circumstances of world politics than contemporary alternative normative democratic ideals, such as cosmopolitan democracy, since it is not linked normatively and empirically to the

14 sovereign state (2008: 401). Indeed, he even expresses disappointment with Dryzek’s discursive theory for being a theory of the process of democratization rather than a normative theory of democracy. At the core of democracy lies the political commitment to universal emancipation, on Goodhart’s account (2005: 5, 137-38); in later work also expressed as a commitment to freedom and equality for everyone. This is the democratic ideal. Democracy “can be interpreted precisely as a political commitment to realizing freedom and equality for everyone” (2008: 416). Democracy conceptualized as a commitment to universal emancipation (freedom and equality for everyone) is constituted by two basic aims or functions, namely, constraining power and enabling political agency, which supply opportunities for people to shape the terms of their own lives and hold political authority to account. This way democracy secures “meaningful political agency”, according to Goodhart (2008: 401). From the standpoint of this normative ideal of democracy, it makes perfect sense to claim that human rights are “necessary for achieving democracy” in a global context (Goodhart 2008: 403). On Goodhart’s view, only by protecting human rights can the two fundamental aims of democracy, viz. constraining power and enabling agency, be realized globally. However, at the same time Goodhart argues that human rights constitute the ethical standards for legitimate governance at all levels and binding on all actors (2008: 403). Thus, legitimate political authority does not derive from democracy but from human rights. On the latter view, human rights constitute the ultimate normative ideal from which democracy is justified, while on the former, the opposite is the case. I argue that the ambiguity in Goodhart’s work concerning democracy as normative ideal and democracy as a practical device for achieving (or approximating) an ideal has implications for his conceptualization of democratic agency. Due to this indistinctness, he cannot capture the crucial difference between democratic agency and political agency. Goodhart claims that his conception of global democracy, realized through the protection of constraining rights and enabling rights, makes possible meaningful political agency, viz. ways for individuals and groups to deliberate, contest and influence political processes and outcomes. On the global level this is done through a human rights regime consisting of a global set of formalized rules and procedures embodying appropriate norms and ethical standards enabling supranational political agency. Through such a regime, structures of democratic agency are created at the transnational and global levels (Goodhart 2008: 410, 402).

15 Thus, the terms political and democratic agency are used interchangeably by Goodhart. While this does not necessarily have to be a problem (if it is made explicit), it becomes a problem as long as it is not clear whether Goodhart develops a normative democratic theory or a moral theory expressed as an ideal of universal emancipation (freedom and equality for everyone). For what he describes as democratic agency would better be described as political agency, suitable as part of a moral ideal. From what I have argued so far, democratic agency ought to be regarded as a very specific form of political agency. Following from the concept of democracy defined as self-determination (self-rule), democratic agents are agents that not only contest and deliberate about political matters of common concern but also rule over themselves. What is more, they do so as political equals, viz. they have an equal say in the taking of the political decisions or in the making of the laws. In addition, democratic agency is not primarily about the possibility of deliberation and contestation through institutional avenues secured by a human rights regime, but about actual agency, about people actually binding themselves to a political authority (or authorities) as free and equals in egalitarian decision-making of some sort. Thus, what Goodhart describes as democratic agency is in my view more appropriately understood as political agency within a moral ideal expressed through human rights. From this point of view, political agency would for example promote better (but not necessarily more democratic) global governance, by realizing ethical standards and strengthen values that are crucial to democracy, such as freedom, equality and emancipation. However, to the extent that Goodhart wishes to stick to the normative democratic path, he would be better off retreating from his sufficiency claim, arguing instead that human rights are a necessary but not sufficient condition for democracy. As it stands, though, he does neither, but rather expresses a moral ideal of universal emancipation as well a democratic ideal, both of which are articulated in terms of the same set of human rights. The democratic agent is thus not democratic in the sense that she is a political equal who participates and binds herself in egalitarian decision-making, but an agent who is ascribed a set of rights secured by a human rights regime; rights which she might utilize, but again, she might not. A similar ambiguity is evident in Bohman’s theory. Indeed, it is impossible to do full justice to Bohman’s rich and ambitious work on transnational democracy in this essay. The task will be confined to examining his central aim of laying out the conceptual foundations of a “complex democratic ideal”, an ideal of transnational democracy (Bohman 2007: 2). Current democratic theory can no longer provide an appropriate framework at the basic conceptual level, according to Bohman (2007: 3). In his view, the basic core of democracy is an ideal of self-determination in that the terms of self-rule are made by citizens and not by

16 others, and transnational democracy is a robust way to achieve self-rule (2010: 72). The democratic minimum, expressed in terms of a set of basic human rights, is sufficient to accommodate the constitutive features of democratic citizenship (2007: 43, my italics). It describes the necessary conditions for democratic arrangements (2007: 49). What the minimum seems to specify, then, is a threshold for democracy, consisting of those conditions that are required in order for an arrangement to qualify as minimally democratic. However, as was stated before, since none of these conditions are political equality and political bindingness, I am sceptical of whether it is actually a democratic ideal of selfdetermination that Bohman has in mind. In fact, for the most part, democracy does not seem to be the ultimate foundation of legitimate political authority for Bohman, but rather a practical device for realizing a republican ideal of nondomination, justified to the extent that it realizes justice in terms of nondomination. Bohman argues that the democratic minimum is made up of those human rights that are able to embrace the statuses that are implied by the basic right against domination (2007: 45-46). Transnational democracy thus reconstructs rights as normative powers and statuses sufficient to promote nondomination. In fact, political rights are rights against domination (Bohman 2007: 13). Moreover, while the democratic minimum is a set of basic human rights, its realization requires democracy, because “meaningful political activity” is a constitutive condition for the exercise of human political rights (2007: 46-47). The most clear-cut example of the view that democracy is a practical device for realizing a republican ideal on Bohman’s account is his claim that the aim of democratic institutions is to secure the conditions for nondomination (2007: 10). This reading is also consistent with Bohman’s claim that the main task of transnational democratic theories is to analyze the basic conditions of global democratization. Indeed, the ability to initiate (effective public) deliberation is the most fundamental necessary condition for democratization, according to Bohman. At the same time, from this it does not follow that democracy only plays an instrumental role. In fact, Bohman is very critical of purely instrumental justifications of democracy made by, for example, Allen Buchanan (Buchanan 2004). For even if democracy is justified instrumentally as a means to justice because it protects basic human rights, it is also justified intrinsically to the extent that it realizes justice (Bohman 2007: 28). In Bohman’s view, democracy promotes justice precisely because it makes possible for citizens to demand justice (2007: 45). Admittedly, one might wonder what ‘intrinsically justified’ alludes to here, but the important point is that democracy with or without an added intrinsic value is still justified in relation to an ideal of justice articulated in terms of nondomination. This ideal is used in conjunction with empirical

17 considerations of the new circumstances of politics in order to evaluate those practical devices that would best promote it. However, it is argued here that a threshold for democracy (democratic arrangements) and a threshold for democratization are two very different things. Although we might reasonably claim that the fulfilment of (most) human rights would lead to or at least increase the possibilities for processes of democratization world-wide, if Bohman’s democratic minimum is designed to set out a threshold for democratization, he does not contribute a transnational democratic theory articulated as a democratic ideal of self-determination (self-rule). And if it is meant as a minimal requirement for democracy, I have made the case that he would have to include the conditions of political equality and political bindingness. On an alternative reading, Bohman defines the very democratic ideal, not as an ideal of self-determination (self-rule) but as an ideal of nondomination. This certainly seems to be what he has in mind when claiming that nondomination constitutes “the basic democratic ideal” (2007: 43). But a ‘democratic’ ideal of nondomination and a democratic ideal of selfdetermination are not the same thing. An ideal of nondomination seems to do perfectly fine without, for example, political equality. We do not have to be political equals and have the equal possibility of participating in egalitarian decision-making in order to be nondominated and have the power to initiate deliberation. At the same time, this makes me wonder what exactly is democratic about the democratic ideal of nondomination. Moreover, if this ‘democratic’ ideal is the best we can do on the global level, the future for democracy beyond or across borders looks rather bleak. Such a normative theory seems to be a poor candidate precisely because it would accommodate neither the condition of political equality nor of political bindingness. I think that much of the criticism directed against Bohman’s Democracy Across Borders could be traced to the ambiguity between democracy as an ideal of self-determination and democracy as a practical device for realizing a republican ideal of nondomination (Bohman 2007: 49), from which the blurred distinction between democracy and democratization arises. In light of Bohman’s most recent writing, in a reply to Lafont and Rob Walker on this point, there is some indication that he intends to defend a normative theory of justice, which brings along with it a theory of democratization (2010: 77-78). Indeed, I think this is the best way forward for his republican approach. Conclusion The main thrust of the argument in this paper has been that human rights are not enough for global democracy. Even if a system of basic rights are required, democracy also involves

18 institutionalized processes and decision-making procedures, both in order to concretize and apply these rights and for people to be able to bind themselves to a political authority. It has been argued that the human rights approach faces challenges as a normative theory of global democracy expressed as an ideal of self-determination (self-rule), since it is not able to accommodate the conditions of political equality and political bindingness. In my view, these conditions are essential for any democratic ideal of self-determination and it is difficult to imagine what would be left of normative democratic theory without them. Further, and related to this, it has been argued that the human rights approach has difficulty making sense of the difference between political and democratic agency in Goodhart’s liberal version, and between democracy and democratization in Bohman’s republican version. Nonetheless, I see both theories as strong candidates of other normative ideals, contributing to democratization on the global level by promoting political agency and effective public deliberation through the implementation of enabling rights, constraining rights and rights against domination. However, if Goodhart and Bohman were to be clearer on the distinction between normative ideals and decision methods and rules (e.g. norms, institutions, law) for regulating social interactions, I argue that their respective theories would become even more attractive. For then we would be able to compare their proposals to those contemporary normative theories they both find insufficient and defend one or the other for the right reasons. Insofar as Goodhart and Bohman wish to contribute novel versions of the democratic ideal of self-determination, we compare their strengths and weaknesses as versions of this ideal with, say, that of cosmopolitan democracy. If they are intended as moral theories harbouring another normative ideal in which democracy is justified to the extent that it realizes it, on the other hand, then we might for example compare this ideal with that of democracy. However, if such an alternative normative ideal were to be defended, we would expect arguments against cosmopolitan democracy on this ground, not on the grounds of an alleged novel normative democratic theory. I am not suggesting that we cannot have more than one normative ideal, or that we cannot defend one ideal as part of another. But in order to assess the strengths of the human rights approach from the point of view of normative democratic theory, the distinction between normative ideals and practical devices for regulating social interactions in order to promote these ideals is vital.

19 References Archibugi, Daniele (2002) “Demos and Cosmopolis”, New Left Review 13: 24-38. Arrhenius, Gustaf (2005) “The Boundary Problem in Democratic Theory”, in Democracy Unbound ed. F. Tersman (Stockholm: Philosophy Dept., Stockholm University). Bohman, James (2007) Democracy across Borders: From Dêmos to Dêmoi (Cambridge, MA.: MIT Press). Bohman, James (2010) “A Response to my Critics: Democracy Across Borders”, Ethics & Global Politics 3, no. 1: 71-84. Buchanan, Allen (2004) Justice, Legitimacy, and Self-Determination (Oxford: Oxford University Press). Burchill, Richard (2008) “Moving Beyond Markets and Minimalism: Democracy in the Era of Globalization”, Human Rights & Human Welfare 8 (2008): 17-30. Christiano, Thomas (1996) The Rule of the Many (Boulder, CO: Westview Press). Christiano, Thomas (2008) “Authority”, in Stanford Encyclopedia of Philosophy, retrieved Nov. 2 (2009), from http://plato.stanford.edu/entries/authority/. Dryzek, John (2006) Deliberative Global Politics: Discourse and Democracy in a Divided World (Cambridge: Polity Press). Dworkin, Ronald ( 1986) Law’s Empire (Cambridge, MA: The Belknap Press). Goodhart, Michael (2005) Democracy as Human Rights: Freedom and Equality in the Age of Globalization (London: Routledge). Goodhart, Michael (2008) “Human Rights and Global Democracy”, Ethics & International Affairs 22, No. 4: 395-420. Habermas, Jürgen (1995) “Reconciliation through the Public use of Reason: Remarks on John Rawls’s Political Liberalism”, Journal of Philosophy 92, no. 3: 109-31. Habermas, Jürgen (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. by W. Rehg (Cambridge, MA: MIT Press). Held, David (1995) Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (California: Stanford University Press). Held, David (2002) “Law of States, Law of Peoples: Three Models of Sovereignty”, Legal Theory 8, no. 1: 1-44. Lafont, Cristina (2010) “Can Democracy go Global?”, Ethics & Global Politics 3, no.1: 13-19. Rawls, John (1971) A Theory of Justice (Cambridge, MA: Harvard University Press). Schumpeter, Joseph (1950) Capitalism, Socialism and Democracy (New York: Harper & Row).

20 Walker, Rob (2010) “Democratic Theory and the Present/Absent International”, Ethics & Global Politics 3, no. 1: 21-36. Wittgenstein, Ludwig (1953) Philosophical Investigations, eds. E. Anscombe and R. Rhees (Oxford: Blackwell Publishing).

21 Endnotes 1

For a fruitful use of the distinction between concept and conception, see Rawls (1971) and Dworkin (1986). For insightful thoughts on different conceptions of equality in democracy, see Christiano (1996). 3 It is surprising how little attention Goodhart pays to international law, considering the burden that human rights are supposed to carry in achieving global democracy. On this point, see Burchill (2008: 18). 2