Can Supranational Law Enhance Democracy? EU Economic Law as a Market-Democratizing Project

This article focuses on the economic regulatory component of the current backlash against liberal democracy and supranationalism in the European Union (EU). I identify a style of economic regulation that seeks to govern markets in the interest of insiders who are framed as vulnerable to the challenges of economic globalization – what I call rearguard economic regulation. While such regulation may be useful to reinforce national cultural attachments and a sense of belonging, it also has an anti-pluralist character that threatens markets’ emancipatory orientation. By identifying this challenge, the article seeks to defend a vision of markets as contributing to the promise of democracy, by fostering a plurality of options in each sphere of life. In the European context, I argue, EU economic law may be understood as advancing the realization of such a vision of markets. Viewed in this light, supranational and, specifically, EU economic law appear not so much as ordo- (or neo)-liberal straightjackets on national democracy but, instead, as providing mechanisms for democratization of the economy and society. Such democratizing potential is attributable to (i) the pluralist outlook of the law of EU integration, which forces member states to confront the plurality of forms of economic and social life existing within the polity and being further diversified by globalization as well as (ii) the deliberative and open-ended character of EU law adjudication, which may allow for progressive re-articulations of national market regulation.

New Responses to the Legitimacy Crisis of International Institutions: The Role of ‘Civil Society’ and the Rise of the Principle of Participation of ‘The Most Affected’ in International Institutional Law

The article offers a description and assessment of the most important discursive strategies used to enhance and justify various models of ‘civil-society participation’ in international institutions since the late 19th century. It starts from the assumption that the two main rationales for, or concepts of, ‘civil-society’ participation are functionalism and democratization. The article also notes that, as an offshoot of the democratization rationale, a new empirical and discursive 21st-century trend has partially replaced classic non-governmental organizations (NGOs) with so-called ‘affected person’s organizations’ in international institutions. In this context, the article claims that the field of international institutional law is currently witnessing the rise of a principle of participation of ‘the most affected’. This shift arguably is an institutional strategy to respond to a profound legitimacy crisis of both international NGOs and the so-called ‘global governance’ structures shaped over the last 30 years. Against the backdrop of various theoretical approaches to the problem of representation and affectedness in political philosophy and international law, the article critically assesses if, and to what extent, the involvement of ‘the most affected’ in international organizations can alter the legitimacy resources of international law and its institutions.