Part V - International/Global Democracies

16 The Overlapping Crises of Democracy, Globalization, and Global Governance

David Held

The crisis of contemporary democracy has become a major subject of political commentary. But the symptoms of this crisis – the votes for Brexit and Trump, among other things – were not foreseen. Nor were the underlying causes of this new constellation of politics. Focusing on the internal development of national polities does not alone help us unlock the deep drivers of change. It is only at the intersection of the national and international, of the nation-state and the global, that the real reasons can be found for the retreat to nationalism and authoritarianism, and the emergence of multifaceted threats to globalization.

In order to grasp the reasons why we are at a crossroads in global politics, it is important to understand ‘gridlock’ and the way it threatens the hold and reach of the post-Second World War settlement and, alongside it, the principles of the democratic project and global cooperation.¹

The post-war institutions, put in place to create a peaceful and prosperous world order, established conditions under which a plethora of other social and economic processes, associated with globalization, could thrive. This allowed interdependence to deepen as new countries joined the global economy, companies expanded multinationally, and once distant people and places found themselves increasingly intertwined.

But the virtuous circle between deepening interdependence and expanding global governance could not last because it set in motion trends that ultimately undermined its effectiveness. Why? There are four reasons for this, or four pathways to gridlock: rising multipolarity, harder problems, institutional inertia, and institutional fragmentation. Each pathway can be thought of as a growing trend that embodies a specific mix of causal mechanisms.

First, reaching agreement in international negotiations is made more complicated by the rise of new powers such as India, China and Brazil, because a more diverse array of interests have to be hammered into agreement for any global deal to be made. On the one hand, multipolarity is a positive sign of development; on the other hand, it can bring both more voices and more interests to the table that are hard to weave into coherent outcomes.

Second, the problems we are facing on a global scale have grown more complex, penetrating deep into domestic policies, and are often extremely difficult to resolve. Multipolarity collides with complexity, making negotiations tougher and harder.

Third, the core multilateral institutions created seventy years ago – for example, the UN Security Council – have proven difficult to change as established interests cling to outmoded decision-making rules that fail to reflect current conditions.

Fourth, in many areas, transnational institutions have proliferated with overlapping and contradictory mandates, creating a confusing fragmentation of authority.

To manage the global economy, reign in global finance, or confront other global challenges, we must cooperate. But many of our tools for global policy-making are breaking down or inadequate – chiefly, state-to-state negotiations over treaties and international institutions – at a time when our fates are acutely interwoven. The result is a dangerous drift in global politics punctuated by surges of violence and the desperate movement of peoples looking for stability and security.

Today, however, gridlock has set in motion a self-reinforcing element, which contributes to the crises of our time in new and distinct ways.² There are four stages to this process (see Figure 16.1).

Figure 16.1 The vicious cycle of self-reinforcing gridlock

First, as noted, we face a multilateral system that is less and less able to manage global challenges, even as growing interdependence increases our need for such management.

Second, this has led to real and, in many cases, serious harm to major sectors of the global population, often creating complex and disruptive knock-on effects. Perhaps the most spectacular recent example was the 2008–9 global financial crisis, which wrought havoc on the world economy in general, and on many countries in particular.

Third, these developments have been a major impetus to significant political destabilization. Rising economic inequality, a long-term trend in many economies, has been made more salient by the financial crisis, reinforcing a stark political cleavage between those who have benefited from the globalization, digitization, and automation of the economy, and those who feel left behind, including many working-class voters in industrialized countries. This division is particularly acute in spatial terms, in the cleavage between global cities and their hinterlands.

The financial crisis is only one area where gridlock has undercut the management of global challenges. Other examples include the failure to create a sustainable peace in large parts of the Middle East following the post-9/11 wars. This has had a particularly destructive impact on the global governance of migration. With millions of refugees fleeing their homelands, many recipient countries have experienced a potent political backlash from right-wing national groups and disgruntled populations, which further reduces the ability of countries to generate effective solutions to problems at the regional and global levels. The resulting erosion of global cooperation is the fourth and final element of self-reinforcing gridlock, starting the whole cycle anew.

Modern democracy was supported by the post-Second World War institutional breakthroughs that provided the momentum for decades of geopolitical stability, economic growth, and the intensification of globalization, even though there were, of course, proxy wars fought out in the global South. However, what works then does not work now, as gridlock freezes problem-solving capacity in global politics, engendering a crisis of democracy, as the politics of compromise and accommodation gives way to populism and authoritarianism.

The 1930s saw the rise of xenophobia and nationalism in the context of prolonged and protracted economic strife, the lingering impact of World War I, weak international institutions, and a desperate search for scapegoats. The 2010s has notable parallels: the protracted fallout of the financial crisis, the clamour for protectionism, ineffective regional and international institutions, and a growing xenophobic discourse that places virtually all blame for every problem on some form of Other. In the 1930s, the politics of accommodation gave way to the politics of dehumanization, war, and slaughter. In the 2010s, we are taking steps down a dangerously similar path. The question remains: will knowing this help us choose a different route?

17 The Contested Freedom of the Moderns Conceiving Norm Contestation as the “Glue” for Reordering the Globalized World

Antje Wiener

Fundamental norms such as democracy, sovereignty, citizenship, and the rule of law are both foundational and deeply contested concepts at the same time. Their foundational role has been extensively discussed with reference to modern nation-states, and constitutional orders in national, regional and global contexts, respectively. Today, fundamental norms, and their contestations, bear the potential for fleshing out the future of democracies within a global order. While these norms’ contested quality has been conceptually acknowledged in Philosophy and Political Theory, it has only come to the fore as a topical issue in current debates of international politics and international law through contestation in practice. These contestations have questioned heretofore well-established political and legal orders. The role of fundamental norms has thus moved, one could claim, from taking a rear-seat in Political Theory toward making headlines in everyday politics of global governance. Tasked with the project of flagging issues that mark the potential ‘future of democracies’,¹ this contribution takes this move into the political limelight as an opportunity. It argues that, despite their purposes of warranting freedom and justice within and through modern constitutional frames, due to their value-based and practice-based roots the contestedness of fundamental norms does not come as a surprise. Instead, it is to be expected, for all norms are in principle contested. This implies that in order to counter potentially disruptive effects of norm contestation in light of the multitude of those affected by the norms of governance, norms have been ‘bound’ by constitutional means. The trajectory of emergent forms of modern constitutionalism has demonstrated this process in detail.

Yet, modern constitutionalism faces a dual challenge that raises a number of conceptual and political questions with regard to the future of democracies. This dual challenge is enhanced by the increasingly globalized nature of politics and policy-making. The first challenge emanates from its ‘locally bound’ organization within modern nation-states. As the canon of contributions to this volume demonstrates, this local boundedness of constitutional norms is challenged by processes of societal alienation, regional dis-/integration, and political fragmentation. As the limits of constitutional rule are perforated, the taming power of modern constitutions has been weakened. Globally, the political effects of this change range from regression into nationalism to progression into novel forms of multilateralism.² The second challenge emanates from modern constitutionalism’s ‘globally unbound’ organization beyond the state. As International Relations (IR) and International Law (IL) scholarship on global governance and global constitutionalism has shown, especially with reference to the “power” of norms, this political and legal weight of fundamental norms of governance in the global realm has been weakened. The crisis of the rule of law and the role of law are the expressions of a weakening liberal order.³

This chapter addresses both challenges as related. The argument builds on norms research in IR, especially the strand which represents a wider societal and political approach (compare, by contrast, the narrower policy-focused approach). Accordingly, norm contestation is developed as the constitutive ‘glue’ of societies and orders, quite in the Polanyian sense, rather than a ‘means’ to implement governance rules. The remainder of this chapter develops the argument in four sections. The first section highlights the research gap between state-negotiated norms of global governance on the one hand, and societal contestations of norms on the other. It argues that the gap has been created by the separate development of two literatures, namely the IR literature on global governance and the literature on democratic theory, in conceptual isolation. To demonstrate the point, section two recalls James Tully’s claim about the “Unfreedom of the Moderns,”⁴ which I summarize as the notorious absence of “elucidating dialogue” among affected agents of governance. The third section follows up from this normative context and summarizes the core assumptions about norm contestation as a condition for “sustainable normativity” in a society.⁵ It details contestation as a twofold practice which distinguishes access to reactive and proactive engagement with norm(ative) change, thereby shedding light on societal interactions vis-à-vis order-building. Section four flags implications for framing a practice-based, bottom-up perspective on the future of democracies.

Engaging Societal Interaction: The Dual Quality of Norms and Societal Multiplicity

This section identifies a conceptual gap between state-negotiated norms of global governance and societal contestations of norms (i.e. a lacking focus on the ontology of societal multiplicity).

This dual challenge bears the danger of the fall of the global liberal order which has come to be represented by the United Nations’ role in global politics for seventy-five years now, in light of the rise of authoritarian rule in a growing number of national states. Yet, this picture frames context in which democratic development stands to be addressed in a state-centered view, leaving the role of societal actors and their potential for advancing and shaping the future of democracies largely to one side. For example, society-based research on global change has addressed the rise of social movements addressing a wide range of grievances both within and across national boundaries. Is there, then, potential for countering the challenges of modern constitutional arrangements in a globalized world from a societal perspective? This chapter suggests that there is. Not all is lost.

The following elaborates on this claim. I argue that there are potential opportunities for shaping future democracies as options for a more inclusive and just form of governance. The argument is developed against two literatures. These are highlighted by, first, critical public philosophy’s claim about the “unfreedom of the moderns”⁶ that results from negating the constructive potential of society’s “strange multiplicity” within modern constitutional settings,⁷ and, second, by the notion of “contested compliance”⁸ and the definition of norms as having a “dual quality”⁹ in global governance settings. Together, these claims point to a problematique with regard to the future of democracies in a globalized world, in light of a liberal global order which has been established on the foundation of modern freedoms (i.e. the foundational norms of constitutionalism) which have become globalized through the transfer of norms from local (national) into global (regional, transnational, international) contexts. Notably, this transfer – albeit mediated by heads and representatives of states – has bracketed the possibility of societal engagement during the process. This bracketing has caused a double alienation from the value-based quality of these fundamental norms. The first consists in the exclusion of local cultural knowledge from norm generation in the national constitutional context. This is enhanced by the second step of transferring a selection of fundamental norms into international organizations with no warranties to remove them on behalf of those who are directly affected. Against this background, contestations of fundamental norms in IR are understood as questioning the (proclaimed) freedom of the moderns, which, as Tully has demonstrated convincingly, must actually be conceived as ‘unfreedoms’ given their bracketing of cultural values. This bracketing of societally devised cultural values precludes the value-based dimension of fundamental norms.

A brief example helps to illustrate the point. From a global governance perspective, the transfer of norms from national constitutional contexts into the global context of international organizations could be dubbed as ‘uploading’. Conversely, following international negotiations, agreements, and treaties, the implementation of these norms by norm-followers around the world could be dubbed ‘downloading’. Most of the compliance literature has sought to enforce the latter through shaming, sanctioning, or coercion of states that were unwilling to comply. The point of this illustration is the reification of a norm’s formal validity whilst neglecting its substantive content, and, therefore, its potential for change. A number of studies highlighted the role of transnational litigation networks, crisscrossing global orders, and norm contestation, and have generated novel research that highlighted the societal dimension. The concept of the ‘dual quality’ of norms sought to debracket normative quality by identifying norms as both socially constructed and structuring. Yet, addressing the socially constructed quality has proved a challenge to state-based norms research. Here, practice-based norms research has offered promising new perspectives on the societal input of norms, and their impact on political ordering. And Rosenberg’s proposed shift toward “societal multiplicity,” which takes account of the consequences of inter- and inner-societal relations,¹⁰ offers a welcome counterpoint to state-centered perspectives norms.

To shed light on norm contestedness as an opportunity insofar as it facilitates research on the potential substantive change of norms that emerges through inner- and inter-societal interaction, therefore, this contribution begins from the contestation of fundamental norms (aka the freedom of the moderns) at different sites in global society. While the contestedness of fundamental norms is common knowledge, it is nonetheless notable that there is little systematic research which analyzes how this contestedness plays out. Second, this contestedness has implications for how we relate to norms in everyday practice and how we conceptualize norms in theory.¹¹ The questions are, therefore, what are the effects for politics and policy-making (i.e. democracy in practice), on the one hand, and for conceptualizations of democracy as a foundational norm of (modern) constitutionalism (i.e. democracy in theory), on the other? This contribution takes these as guiding questions in order to explore the future of democracies in a globalized world, and specifically with regard to global society against the background of the literature on norm contestation in IR theory. Accordingly, ‘democracy’ is defined as a value-based “fundamental norm” with little specification with regard to its implementation, yet with wide-ranging claims about its universal reach.¹²

This tension between the norm’s substantively elusive frame and claims about its normative universal validity, would per se generate contestation with regard to implementation in policy and politics. The tension has been demonstrated by empirical research that locates contestation at multiple local sites in world society.¹³ In Political Theory, such tensions have been identified as conflicts that emerge between the wider “civic” and the narrower “civil” spaces of society,¹⁴ or between everyday “ordinary” and “universal virtues,”¹⁵ respectively. In the context of nation-states, the tensions are kept at bay by constitutions that set the rules of engagement which regulate political disagreement or conflict. While specific normative opportunity structures vary, liberal democracies share a core of foundational norms. In these national contexts, norm-following is regulated by politics and sanctionable by law. By contrast, in global society, where no such matching constitutional settings exist, the tensions pose a different challenge. And, if and when they are not addressed in time, contestations may potentially spark wider global conflict, including diplomatic rows, weaponized conflict, and institutional decline. To counter these tensions, international relations are routinely confronted with establishing and/or improving the means to facilitate norm implementation. With regard to the normatively most far-reaching fundamental norms, this process is backed with resort to adjacent or sustaining norms and policies, such as, for example, “organizing principles” that identify procedures and means in the context of selected policy areas, and “standards and regulations” that define their specific rules of implementation.¹⁶

IR scholarship has addressed the point that fundamental norms are deeply contested in conversations with the neighboring disciplines of European integration, international organization, international law, and migration studies. The contestation of norms is regularly presented as a problem (i.e. of norm-following), which must be dealt with in order to develop effective means toward achieving compliance.¹⁷ At the same time, however, others have argued that norm contestation is an integral part of the process of legitimation in IR.¹⁸ This argument builds on “agonism” as Tully’s third of “six features of constitutional democracy.”¹⁹ In doing so, it frames norm conflicts in today’s globalized world as ‘contested freedoms of the moderns’. The point is demonstrated against Tully’s ‘unfreedom of the moderns’. Empirically, it suggests turning toward local sites where ‘modern’ freedoms (i.e. fundamental norms of governance) are contested by affected stakeholders, in order to reveal the work of these unfreedoms, and relatedly, to flag ways of countering them. Conceptually, the aim is to explore opportunities for mutually elucidating dialogue among a plurality of unequal global stakeholders to bring the diversity of sociocultural experiences to bear on their expectations toward democracy on a global scale. The next section addresses this point.

The Unfreedom of the Moderns, Agonism, and the Promise of Elucidating Dialogue

This section recalls Tully’s claim about the “Unfreedom of the Moderns” and the central role of agonism (contestation) for the purpose of including the multitude of affected stakeholders in establishing norms of governance.

Tully situates his seminal claim about the ‘unfreedom of the moderns’ against a conceptual debate between Jürgen Habermas and John Rawls. As he argues, in essence this debate established that “two critical and abstract principles have been singled out as guiding norms for the critical discussion of the conditions of legitimacy of contemporary forms of political association. These are the principle of constitutionalism (or the rule of law) and the principle of democracy (or popular sovereignty).”²⁰ Against this backdrop, Tully’s claim about the “unfreedom of the moderns” is guided by six specific features, and it is illustrated by engaging a mutually “elucidating dialogue” between two distinct constitutional orders – in this case, Europe and North America. A project that seeks to address the considerably larger variety of constitutional orders within a global context faces two additional challenges: the first consists in taking account of a quantitative “plurality” of sites and agents;²¹ the second consists in accounting for the “diversity” of qualitatively distinct experiences and expectations. Both are relevant for reordering governance in a globalized world. The challenges are addressed by Tully’s third feature, which he identifies as

the ‘agonistic’ dimension of constitutional democracy because it entails that no rule of law, procedure or agreement is permanently insulated from disputation in practice in an open society. The democratic practices of disputation and contestation that were previously assumed to rest on permanent constitutional arrangements, to which the people were supposed to have agreed once and for all, are now seen to apply to those arrangements as well, and thus ‘agonism’ (the Greek word for contest) is seen to be a defining feature of democratic constitutionalism, one which partly explains and also reinforces the co-equal status of the two principles.²²

This chapter dwells on this feature. Following from the conception of contestation, as a ‘defining feature of democratic constitutionalism’ it conceives the practice of contestation as the ‘glue’ for democratic governance in a globalized context.²³ It further argues that more systematic research on norm contestation would therefore offer an important means toward filling the gap between the formal validity of global governance norms, on the one hand, and their cultural and social validations in the global multitude of everyday experience, on the other. Framing contestation in this way thus offers an analytical angle on the crucial – and often bracketed – relation between fact-based and value-based dynamics of norms.²⁴ As will be demonstrated in the following section, the angle is taken up and more systematically framed by contestation research in IR theory.

Before turning to that analytical frame, the following elaborates on the rationale that by presenting the two principles of modern constitutionalism as fundamentally contested, Tully offers an invaluable conceptual angle toward this analytical framing from IR theory. By shedding light on practices of norm- and value-construction that are “prior to” and/or “outside of” a modern conceptual frame, Tully shows that adopting a modern standpoint therefore bears the danger of overlooking the underlying set of customary norms and values. This angle offers a mediated lack of societal reflection that undermines these two principles’ universal validity, for their perception of ‘freedom’ rests on false assumptions. Thus, the conception of the ‘unfreedom of the moderns’ sheds light on the mediated effect of bracketing sociocultural practices and background experience in the constitutive process of fundamental constitutional norms. It follows that any attempt to resolve, enhance, or expand democratic legitimacy, and that begins from a ‘modern’ standpoint, is likely to bracket cultural diversity. This implies two types of exclusion from the process of constitutional ordering in a globalized world (i.e. quantitative exclusion with regard to a plurality of affected stakeholders from the democratic process in national societies, as well as qualitative exclusion with regard to the diversity of sociocultural background knowledge and its impact on normative substance), from which will be addressed in detail here. The only way to overcome the dilemma of the ‘unfreedom of the moderns’ therefore consists in taking modern freedoms themselves as profoundly contested. Enabling those affected by the norms of governance to contest them would be the way forward, for it is through this practice of contestation on and from the ground that norm(ative) change becomes possible.

The litmus test of the lasting effect of enhanced access to contestation in a globalized world consists in the question of how the effects of these contestatory practices work within societal boundaries and across them in IR. From international norms research we know that norms do not travel well, and individual agents tend to carry their normative baggage across borders, only to run into conflicts on the other side, as it were,²⁵ as individuals carry distinct “normative baggage” across manifold boundaries.²⁶ It is here where an ontological shift toward “societal multiplicity” matters,²⁷ for it highlights the consequences of inter-societal and inner-societal interactions, with reference to both quantitative and qualitative drivers of multiplicity.²⁸

In a nutshell, then, Tully’s take on fundamental norms and their role in generating and maintaining the legitimacy of political associations reveals two important insights. Both matter for this chapter’s task of assessing the future of democracies in a globalized world. First, constitutionalism and democracy are perceived as guiding norms of modern constitutionalism and, as such, they are, secondly, devised from given constitutional orders. As Tully shows, following a research logic that extends from the order to the norm actually implies a twofold mechanism with the effect of maintaining, sustaining, and – with a view toward global governance – extending the ‘unfreedom of the moderns’. This effect implies that the inability to engage with the wealth of cultural diversity is prolonged rather than challenged.

Given that cultural diversity is constructed through everyday social practices which generate knowledge that is represented individually as background knowledge,²⁹ benefiting from that knowledge requires the means to represent its effect for normative reordering within a globalized world. This is achieved neither through inclusion of culturally diverse groups within a given order, nor by establishing enhanced participation of individuals according to the given norms of current orders, for both prevent the possibility to critique, change, and rethink, through learning from this ‘strange multiplicity’.³⁰ To activate that learning potential therefore calls for more systematic and reflexive engagement with cultural diversity as an enabling condition for rethinking the future of democracies in a globalized world. The cycle-grid model which is presented below targets this challenge based on the interlinked practices of contestation and validation.³¹

To that end, a more consistent and rigorous research focus on cultural diversity and its effect on transformative change (and hence the normative structure of meaning-in-use that sustains any political order) therefore takes the reverse direction and conceptualizes constitutional reordering from norms toward order.³² As Tully has demonstrated with reference to the repertoire of distinct Canadian constitutional traditions, this bottom-up approach is the condition for devising the parameters of ‘contemporary constitutionalism’.³³ A practice-based logic of inquiry then would contribute to re-establishing the freedom for the moderns, enabling them to learn from experience and change their concepts of (liberal) order accordingly. This remains hypothetical, to be sure, for it pre-empts a scenario in which the ‘moderns’ actually wish to be freed from the blurred vision that is implied by the top-down order-to-norm perspective. And it is here, where the contestations of norms that we observe in everyday politics, come onto the – research – stage, for these contestations essentially take issue with the ‘freedom of the moderns’ by contesting fundamental norms. To provide an example, let us return to contemporary IR theory, and especially the field of norms studies, where two opposing research logics contribute to the reification of these norms, and, vice-versa, the reconstitution of these norms. Both logics are applied by distinct standpoints, and both are currently at work. The first – reifying – standpoint holds that contestation affects norm robustness. Accordingly, it is considered as a ‘danger’ which potentially undermines the liberal order. The second – rethinking – standpoint contends that norm contestation is a precondition for the democratic legitimacy of norms in global society. Accordingly, it is considered as an opportunity with a view to making the global order more inclusive and more just.

The reifying standpoint applies a logic of inquiry that centers on national interest in security³⁴ that depends on the stability of a given international order. The rethinking standpoint applies a logic of inquiry that centers on the challenge of access to contestation for those affected by the norms that govern them, applying the quad omnes tangit principle (i.e. what touches all must be approved for all)³⁵ as a minimal condition for legitimacy in global society.³⁶ As norms studies in IR theory have highlighted, it is not altogether obvious whether the goal of this discussion about the potential benefits of cultural diversity for democratic legitimacy on a global scale consists in re-establishing freedom for the moderns (wearing a veil of innocence about the promises of cultural diversity) or whether, in fact, it brings with it the challenge of establishing freedom from the moderns (as representatives of dominant Western political thought). The former typically focuses on policy, the latter on politics. The following section details a model toward more systematic studies of norm contestation and their effect in a globalized world.

The Dual Quality of Norms and Sustainable Normativity

This section presents the cycle-grid model to frame democracy from below. It details practices of contestation (i.e. reactive and proactive) and validation (formal, societal, cultural) to address the gap between societal interactions and global order-building.

As this chapter’s argument about closing the gap posits, freedom from the moderns requires a better concept of transformative change through politics. The point is substantiated by a practice-based approach to norms which facilitates a fresh view on the culturally diverse roots of contemporary order. Approached from this agonistic standpoint, a contemporary order is always to a certain extent in-the-making, driven by contestation. Through this process, norm change and transformative change will be perceived as coconstitutive practices that work at difference scales of global society, thereby connecting localized normative opportunity structures representing norms as tangible features of political order, on the one hand, and global normative structures of meaning-in-use representing knowledge constellations as the more intangible cultural features, on the other.

The making of order thus remains ongoing and in-progress, and its legitimacy depends on the degree to which it is capable of responding to everyday challenges and crises. Against this background, it follows that what is often called the ‘recognition problem’ or the ‘diversity dilemma’ – that is, the challenge of acknowledging cultural diversity in a constitutional frame – may become less of a dilemma and more of a virtue.³⁷ For scholars coming to the discussion about cultural diversity from IR theory, this observation about cultural diversity as vice vs. virtue allows for critical scrutiny regarding the effect of research logics that engage in uploading guiding norms of Western liberal order(s) to the ‘global level’ (i.e. constituting the modern global liberal order) to then engage in downloading the same norms to any domestic political order (i.e. diffusing the norms of the global liberal order). The process leaves the ‘rest’ to comply with the guiding norms of the West. It reflects the unfreedom of the moderns that rests on two grounds. According to Tully, this exclusion takes two forms.

The first and “most outstanding form of exclusion remains the one Dewey identified as paramount: the exclusion of those subject to national and transnational corporations from having a democratic say over them”;³⁸

The second form of unfreedom is brought about by relations of assimilation. Subjects are permitted and often encouraged to participate in democratic practices of deliberation yet are constrained to deliberate in a particular way, in a particular type of institution and over a particular range of issues so their agreements and disagreements serve to reinforce rather than challenge the status quo.³⁹

A growing literature on globalized conditions of unequal access to democratic participation and representation questions the universal validity of these fundamental norms. Given that norms are by definition not only structuring but also socially constructed through interaction at local sites, this literature argues that norms are always in principle contested. It thus calls for more research on the emergence of norms through practice. With regard to the contested validity of norms, therefore, all norms are treated as coming from ‘somewhere’, including ‘liberal norms’. The legitimacy of norms is thus not enhanced by claiming the validity of liberal norms of the moderns for actors ‘everywhere’, but by first, unveiling the freedoms promoted by the moderns through global governance; second, contesting them; and third, re-constructing normative validity through these local practices. This point is sustained by norms research in IR, which has demonstrated that contestation and its effects must be understood ‘all the way down’ and ‘all the way up’⁴⁰ in order to take full account of these conditions of diversity and plurality. It is sustained by the claim that norms are social facts. That is, even though they are regularly framed in constitutional, political, and/or legal institutional terms which aspire to bear universal claims, their implementation always requires a sociocultural fit. As Finnemore and Toope have emphasized in their reply to modernist neo-institutionalist claims about compliance,⁴¹ successful norm implementation depends on the social environment in which they are expected to ‘work’.⁴² As further studies have demonstrated, this is well documented by cases in IR where norms were contested, despite their constitution in treaties and other kinds of international agreements.⁴³

International relations and global governance institutions derive their democratic legitimation from their appropriation of fundamental modern norms as their constitutional foundation. These are the warrantors of the ‘freedom of the moderns.’ The contestedness of norms has developed in tandem with this ‘modern’ background at the organized, macro-scale of global order. To address what democracy might become, therefore, does not begin from considering contestation a problem (‘danger’) and aiming to counter contestedness in order for the foundational norms of this order to ‘function’ more smoothly (i.e. using the political tools of sanctioning, shaming, or coercion). Instead, it begins from the opposite assumption and conceives contestation as an opportunity for achieving democratic legitimacy in the global realm. This is achieved with reference to the concept of “sustainable normativity.”⁴⁴ Rather than improving ways of implementing fundamental norms of global governance, the goal is to generate the link between societal practices and these removed norms of global governance. In order to identify these links (i.e. fill the gap), Tully’s central proposition to engage the potential of cultures of diversity more assertively in current social science theory is applied as the guiding standard. It rests on the proposition that “different practices of reasoning-with-others are grounded in distinctive customary local knowledges, repertoires of practical skills, genres of argumentation and tacit ways of relating to one another. These culturally and historically diverse genres of practical know-how or savoir-faire (metis in Greek) are the intersubjective bases of culturally diverse practices of deliberation.”⁴⁵

Against this background, the chapter now turns to a frame that enables more systematic empirical research on norm contestation and its effect on rethinking and reordering political organization in a globalized world. To that end, it identifies the concept of contestation as a twofold practice which has been developed by the literature on norms research in IR theory and illustrates how this practice-based approach may be applied to counter the unfreedom of the moderns in global society. It aims seeks to account for norm validation as a principled practice that originates from ‘somewhere’. To that end, it ‘places’ contestations of fundamental norms in the context at local ‘sites’. By doing so, it aims to arrive at a more ‘contemporary’ understanding of democratic legitimacy that reflects the conditions of ‘diversity’ and ‘multiplicity’⁴⁶. The model has been developed against Tully’s critique. Accordingly, it offers a frame for critical practice-based research with the aim to counter the perpetuation of the ‘unfreedom of the moderns’ and its diffusion from and by liberal orders. It brings to bear the critique of Western roots of the global liberal order and centers on that order’s lacking capability to include ‘all affected’ by its norms⁴⁷ – that is, the modern setting in which stakeholders’ access to the constitution of guiding norms of global order has long-remained restricted. Due to the underlying principles (i.e. the two guiding norms of the rule of law and democracy) of this liberal global order, the only mechanisms of change include inclusion and participation according to the given norms of that order, for, in today’s contested liberal global order, these norms still represent the modern constitutive prototypes of the constitutional frame that defines normative opportunity structures and the rules of political engagement on site.

To counter this logic therefore involves rethinking these rules of engagement with a view to enabling access to norm contestation “all the way”⁴⁸ in order to achieve “sustainable normativity” in a re-ordered globalized world.

By developing the concept of “sustainable normativity” against the background of T. H. Marshall’s “Citizenship and Social Class,”⁴⁹ Wiener has drawn attention to the central question of “access” to citizenship rights and, subsequently, “access” to proactive norm contestation.⁵⁰ To address unequal access conditions that shape the possibilities and constraints for political participation of the multitude of affected stakeholders in global society, she proposes drawing on the quod omnes tangit principle (what touches all must be approved by all) for framing central normative questions for norms research, such as “whose practices count?” (observation) and “whose practices ought to count?” (evaluation).⁵¹ Following this frame, empirical research begins from observing global norm contestations and traces them to local sites in order to evaluate affected stakeholders’ access to norm contestation. Following Marshall, this access is conditioned by the normative opportunity structure on site. Its qualitatively distinct realization is identified by two distinctions. First, access to contestation is qualified with reference to political effects as (a) reactive contestation (i.e. objection), and (b) the politically far more effective proactive contestation (i.e. critical engagement with these norms’ substance). Second, and accounting for knowledge as value-based, three types of norm validation, to which diverse and multiple stakeholders have access, are to be distinguished: formal validation (in a position of political/legal power), social validation (in a position of a solid social group/community), and cultural validation (individually generated cultural knowledge, aka normative baggage). The types of validation therefore provide a key to societally qualified access to the two practices of contestation in light of the normative opportunity structures that set the conditions for norm(ative) change locally. Both help to map distinct degrees of sustainable normativity on site. To counter unequal access – which is the given condition in global society – it then engages selected stakeholder groups’ respective discursive interventions in a global multilogue to identify norm(ative) change. Here, more systematic research on societal multiplicity would facilitate helpful and more detailed insights.

A starting point which takes account of inter- and inner-societal relations has been offered by norms research that seeks to “reverse this bracketing of a value-based perspective on norms, and to sketch a conceptual framework that centers on practice-based norm(ative) change.”⁵² To that end, practices of contestation are distinguished according to their normative effect. This research builds on the theories of contestation and interactive international law. It argues that a turn toward practices of contestation and validation enables us to assess degrees of “sustainable normativity”⁵³ that reflect the state of legitimacy in the global order. These degrees are read off empirical research on reactive and proactive contestation on locally defined sites. As long as both practices of contestation are in balance, the conditions of sustainable normativity are satisfied. As soon as either reactive or proactive contestation develops the strong-hand, sustainable normativity is challenged – that is, an imbalance in favor of reactive contestation is expected to lead to political conflict (which may trickle across societal boundaries, igniting conflicts elsewhere), and an imbalance in favor of proactive contestation may imply a decline in opportunities for political protest. The following summarizes a possible way of framing political practices of contestation as interactions with reference to the “cycle-grid model.”⁵⁴

Figure 17.1 Cycle-grid model

Source: Antje Wiener, Contestation and Constitution of Norms in Global International Relations (Cambridge: Cambridge University Press, 2018), p. 44.

The model consists of a graph which comprises a three-by-three grid to indicate local sites of interaction (in relation to norm development and global order), and an overlay of a spinning cycle which entails distinct modes of validation (in relation to political power). The model allows for applying the ethnographic method of “following the conflict” based on sensitizing reading of news, reports, documents, and then subsequently “zooming in” on local sites. In detail, the model frames the task of mapping local practices on distinct “sites” (Who are the agents? Where are they engaging? What are their demands?). Each of these sites is conditioned by a “normative opportunity structure” that entails the “rules of engagement” and sets enabling and constraining conditions for stakeholders’ “access to contestation.” The sites are grouped along the two dimensions of global order, which are distinguished according to scope as part of the micro-, meso-, and macro-scales along the vertical dimension, and the process of norm development, including constitution, negotiation, and implementation, along the horizontal line of the grid. The cycle indicates the potential for access to validation, which depends on an individual agent’s position in society and which are therefore distinguished as formal, social, and cultural practices of validation on the cycle.⁵⁵

To summarize, the characteristic interplay between the quantitative and qualitative dimensions of the multitude of affected stakeholders who take part in the practice is demonstrated thus: While reactive contestation can be observed quantitatively with regard to agents, sites, and times where norm compliance or norm violation is objected, in turn proactive contestation needs to be evaluated qualitatively according to the conditions that facilitate access to critical engagement with norms and their meaning-in-use. The practices of contestation nicely pinpoint Rosenberg’s point about consequences of multiplicity that potentially consist in either ‘danger’ or ‘opportunity’. For, if reactive contestation – expressed by the spectrum of political activities including the spectrum of contentious politics (social movements, protest, and so on) to the more silent neglection of norms⁵⁶ – is not met by favorable conditions of access to proactive contestation, the necessary balance between both practices becomes lopsided. The likely result is conflict, which may represent a danger to societal stability, security, and so on. In turn, if reactive contestation is met by favorable conditions of access to proactive contestation, the diversity of voices is able to engage in deliberations to negotiate a compromise. The latter entails the potential of an opportunity, in so far as the political opportunity structure may be changed, for example, by offering access to previously neglected groups of stakeholders, establishing new pathways to participation for societal groups, or revising normative substance. Taken together, therefore, both practices reflect the quantitative–qualitative challenge raised by a multiplicity-ontology. Reactive contestation highlights affected agents’ objection vis-à-vis a given order and/or its rules of engagement (i.e. the local normative opportunity structure). In turn, proactive contestation allows for shaping conditions for qualitative change of that order (i.e. reflecting the global normative structure of meaning-in-use). It is argued that reactive and proactive practices of contestation provide a helpful vantage point for framing the interplay between quantitative and qualitative multiplicity and its impact on international ordering.

To summarize, the norm-typology distinguishes three types of norms, and the cycle-grid model distinguishes two kinds of practices. The wider societal approach to norms centers on the dictum that in order to achieve sustainable normativity, access to contestation is a sine qua non. And, the possibility of achieving and maintaining sustainable normativity depends on the (re)constitution of globally recognized norms at local sites. They need to be read off these practices. To assess these practices’ effects, these are distinguished as reactive and proactive contestation in order to facilitate the empirical study of mapping contestations with the normative evaluation of distinct practices of validation. Both practices play a distinct role with regard to understanding and engaging with affected stakeholders’ access to participation in shaping order in global society. The first enables us to account for stakeholder (or citizen) engagement through empirical observation by desk- and/or field-study; the second offers standards for normative evaluation of access to engagement according to the all-affected principle.

Freedom from the Moderns: Contestation as a Virtue

This section provides an outlook on the future of democracies in a globalized world.

The argument advanced by this chapter began from this volume’s preceding discussions at the Victoria workshop and the three leading questions about problems of contemporary democracies, their connections, and ways to counter them, respectively. It began from Tully’s warning to perpetuate the two unfreedoms of the moderns by including previously excluded stakeholders and then assimilating their distinct democratic practices. The argument centered on the problem that follows from these unfreedoms, namely the deeply undermined civic freedoms of affected stakeholders and their perpetual exclusion as a problem which cannot be solved by enhancing inclusion and democratic participation, but which must be addressed by a logic of inquiry that aims at means other than inclusion. These other means, it was suggested, consist in bringing cultural knowledge to bear in its own right where diversity becomes a “virtue rather than a vice.”⁵⁷

It was argued that, notwithstanding the modern canon of constitutional norms and its representation in a plurality of national constitutional orders and global governance institutions, it is important to note that the contestedness of a norm depends on contingent local practice. In a global context, it follows that it is not only highlighted through practice on the ground, but it increases in relation to the plurality of sites that we wish to account for. Following this contribution’s particular focus on addressing democracy within a global frame, this implies accounting for multiple futures of democracy. To explore this focus and flag conceptual challenges and how to address them analytically, the chapter centered on the practice of norm contestation at a multiplicity of sites. Following leading concepts in the field of norms research in IR theory, then, the constructive dynamic is one that evolves from practice to a norm’s meaning-in-use. The argument was developed against the quod omnes tangit principle, which allows for the most far-reaching questions to that end: namely, “Whose practices count?” and, relatedly, “Whose practices ought to count?”⁵⁸ The practice-based dynamic of this driver (i.e. practices of contestation) is pitched against the conception of democracy as a foundational norm of modern constitutionalism.

To bring cultural background knowledge as the experience of a ‘strange multiplicity’ that requires renegotiation through inter-societal and inner-societal dialogue, the chapter highlighted the added value of practice-based research on norm contestation. The conceptual proposal distinguishes between the two standpoints of reifying and rethinking the ‘unfreedom of the moderns’ (i.e. either locating norms in a given order or identifying norms through observed practices). And it proposed a more systematic empirical and normative frame to explore the project of rethinking and reordering constitutional settings in a globalized world with reference to the cycle-grid model and a general norm-typology that allow for zooming in on distinct sites of contestation. Accordingly, the effect of contestedness on the future of democracies (note the plural) stands to be assessed from these sites up. Two related steps illustrated this claim. The first sketched a practice-based approach toward exploring the meaningful use of norms from IR theory for research on democracy in the wider social sciences. The second framed the application of this approach with a view to exploring democracy as a fundamental norm, rather than focusing on democracy as a type of political system or regime. In addition to this contribution to democracy studies, this contribution proposed that this approach has an additional benefit for IR, for it speaks to a long-standing conceptual gap in IR. This gap was identified by extant IR theories’ conceptualization of the global political order as an order of global governance that was established by inter-state negotiations. These negotiations at the top have been constitutive for a modern regulatory order with a lacking societal foundation.

In Tully’s words, the structure of modern national constitutions was forged through regulatory practices. Leaving customary practices largely to one side in the process, the fundamental constitutional norms that expressed the basic agreement of social contracts were extracted from these societies. The first form of unfreedom has been incorporated into international law, for example, based on contract law and the principle of consent.⁵⁹ While the degree will differ pending on a given context, having new members comply with a set of given norms that establish the order of an international organization will invariably involve the subordination and suppression of cultural diversity.⁶⁰ The procedure has been perpetuated through countless contracts on membership in international organizations of the UN system, as well as regional organizations such as the quasi-constitutional nonstate polity of the European Union (EU), for example. While critical voices have pointed to the importance of taking “contested compliance” more seriously as “interventions in the normative structure of world politics” that matter for long-term assessments of normative sustainability in contexts of regional and global,⁶¹ cultural recognition is predominantly approached as a problem rather than an opportunity for transformative change⁶². To reverse this process of progressive elimination of diversity, stakeholders require access to engage with the norms that govern them. Its success depends on stakeholders’ access to the two practices of contestation and norm validation, respectively. Here, the distinction between reactive and proactive contestation – where reactive contestation restricts affected stakeholders to the practice of mere objection, whereas proactive contestation would allow affected stakeholders to critically engage with the norms that constitute the order – comes in helpful.

The second form of unfreedom may even be more damaging with regard to its effects. This is the case because it leads to the perpetual hollowing out of cultural background knowledge that is part of the top-down order-to-norm logic. It follows that, unless they are subjected to critical scrutiny, logics of inquiry that take the liberal order’s universal hegemony for granted will invariably contribute to more exclusion despite the claim of, for example, seeking to enhance the ‘diffusion’ of and ‘compliance’ with ‘democratic norms’. Here Wiener refers to three types of norm validation: formal validation, social recognition, and cultural validation, respectively. At best, each affected stakeholder has access to all three. However, in most concrete situations, stakeholders will have either access to social and cultural validation, or only to the latter. The scalar model allows for evaluating practice-based transformative change of normative orders in global society, and how to counter forms of exclusion with reference to the practices of contestation and validation.

To summarize, contestation practices indicate the quality of the direct relation between stakeholders and norms. By distinguishing between either reactive contestation (i.e. objection to norms or their violation) or proactive contestation (i.e. critical engagement with norms and their interpretations), research is able to identify the ‘sites’ where norm conflicts occur, the involved stakeholders, and the normative opportunity structure that condition stakeholders’ access to participation. In turn, validation practices are distinguished with reference to meta-theoretical considerations about the dimension of knowledge a stakeholder is enabled to apply when practicing norm contestation. Against the background of IR theory, three dimensions matter in this regard: formal validation, social recognition, and cultural validation. Formal validation – also called ‘legal’ validation⁶³ – follows the international law literature. Social recognition follows the social constructivist literature on norms. which holds that processes of reiterated interaction in social groups will generate shared norms, which are habitually acknowledged as appropriate.⁶⁴ Finally, cultural validation has been conceptualized against the background of the post-structural and critical constructivist literature on discursive practice in IR.⁶⁵

While the order-to-norm approach perceives cultural validation as the least powerful of the three practices of norm validation, the opposite is the case with the bottom-up norm-to-order logic of inquiry. Against the latter and applied to the comparative study of the unfreedom of the moderns, cultural validation turns out to be the most important practice. In fact, its ability to counter the unfreedom of the moderns makes it a warden with regard to chances of developing genuinely ‘contemporary’ conditions for democracy.⁶⁶ The key role of cultural validation lies in its capability to mobilize individually held cultural background knowledge to bear in the constitution and change of norms. It thus turns into a sine qua non condition for preserving background experience as a common cultural heritage. The proposal therefore is to consider cultural diversity a global good (rather than a global problem). Finding the means to safeguard this cultural diversity based on strengthened representation in societal orders is thus central to establishing the future of democracies that respect the culturally diverse sources of global society and enable the plurality of agents.

18 Conditional Authority and Democratic Legitimacy in Pluralist Space

Keith Cherry

Legal pluralism is the key concept in a postmodern view of law. Not the legal pluralism of traditional legal anthropology in which the different legal orders are conceived as separate entities coexisting in the same political space, but rather the conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as much as in our actions … We live in a time of porous legality.

- Boaventura de Sousa Santos¹

This chapter takes up the theme of “democratic multiplicity” not by attending closely to any one democratic tradition, but rather by attempting to engage seriously with some of the ways in which various traditions intra-act and shape one another. As Santos points out, it is not as if one person is a subject of an Indigenous democracy, while another is a citizen of the state, and another a subject of international law – rather, each of these sites of authority co-exists, layered on top of one another, shaping one another in complex and asymmetrical intra-action. The democratic character of our lives therefore depends not only on multiple sites of governance, but also on the relationships between them.

Yann Allard Tremblay helpfully lays out two broad approaches to these relationships.² The modernist view recognizes a plurality of authorities but subordinates them to the state. For modernists, it is the state that determines the authority of all other actors by extending or withholding recognition according to its own logics. Modernist scholarship therefore focuses on the reasons why a state should or should not accommodate various claims. Conversely, the pluralist view – the view embraced in this chapter – sees the state as merely one authority among many. Under this view, the state enjoys no particular claim to manage the overall environment or determine the boundaries of other authorities. As a result, pluralist scholarship focuses on the dynamics of negotiation and contestation between authorities.

From a pluralist perspective, practices of recognition and interaction form an integral part of our legal and political systems.³ Accordingly, Roughan argues that in order to be legitimate, an authority must not only make justified appeals to its own subjects, but also interact in justified ways with other sources of authority.⁴ Likewise, Young argues that legitimate authorities must pursue nondomination both toward their own subjects and in their relations with other authorities.⁵ In other words, the question of democracy must be addressed at two levels. We must ask how each tradition enacts democracy internally, but also how it relates to and intra-acts with other sites of collective decision-making. This chapter takes up the second question and focuses on the practices various orders, state and nonstate alike, use to manage, negotiate, and contest the boundaries of their respective claims.

Sometimes, overlapping authorities choose to recognize and accommodate one another’s claims by dividing jurisdictions between them either geographically or by subject matter, as in federal arrangements. This allows each authority to act unilaterally in its own domains, thereby minimizing the need for coordination and maximizing the autonomy of each party. Where both parties assert a claim to the same spaces or subjects, overlapping authorities have sometimes embraced practices of co-decision, where representatives of each wield power jointly and seek collaborative consent.⁶ This is the case in Northern Ireland, where Irish and Northern Irish authorities share power through consociational arrangements,⁷ on Haida Gwaii, where land use decisions are made by a joint council of Haida and Settlers,⁸ and in many arrangements between the Maori and New Zealand.⁹ While such arrangements lack the autonomy of federal alternatives, they ensure that both parties’ views are represented at all times. In other cases, however, multiple authorities continue to wield authority over the same spaces or subjects independently, but in a coordinated fashion. Like federalism, this allows each actor to carry itself differently, rather than committing to a shared compromise, but, like co-decision, it eschews unilateralism. This chapter focuses on the later set of practices, taking up some of the ways overlapping authorities have found to coordinate decision-making without either dividing jurisdiction between them or wielding power jointly though co-decision.

In particular, I focus on practices of conditional authority – sites where an actor accepts competing authority claims, but also subjects those claims to certain conditions. In order to have its claim recognized, an actor must meet standards of their peers. I explore this practice as it appears in two sites: the Northwest coast of Turtle Island,¹⁰ and in the Europe integration project. In both cases, I argue that conditional forms of authority can be a tool of hegemonic rule, but can also be a means of challenging power asymmetries. Most interestingly, practices of conditional authority can offer forms of mutual influence that make the social order responsive to multiple independent standards of democracy at once. In so doing, I contend that they represent one way authorities can attend to the external dimensions of democratic legitimacy.

I begin by discussing a range of conditional practices present in the European integration project, and then explore some practices present in parts of Turtle Island. Building on these observations, I present a preliminary typology of conditional practices, and conclude by reflecting on how the observed practices of conditional authority can help us to pursue democratic legitimacy in pluralist spaces.

Conditional Authority in Europe

Forms of conditional authority are common in Europe. For example, the Union operates through subsidiarity – the principle that action ought to be taken at the European level only when it cannot be effectively taken at the national or regional levels.¹¹ National governments police the principle and can request control over any matter in which they feel competent.¹² Thus, the Union can make valid authority claims only where lower orders of government have abstained from competing claims. The Union’s claim to implement policy is therefore valid only when certain conditions are met to the satisfaction of other authorities. In this way, the principle of subsidiarity uses conditional authority structures as means to keep a potentially overbearing partner from dominating its peers.

Similar practices have also emerged from the bottom up. Consider the relationship between the radically participatory, grassroots, and anti-institutional 15 M movement and a range of would-be electoral partners, mostly notably Podemos.¹³ The 15 M activists govern themselves through participatory public assembles in a deliberate rejection of representative structures. Yet 15 M assemblies also sometimes support candidates in local, regional, national, and European elections. In this sense, 15 M and parties like Podemos are ‘joining hands’ across different conceptions of democracy.¹⁴ This relationship has been fractious, but some in 15 M are experimenting with new ways to make the authority of elected representatives contingent upon the ongoing support of parallel, directly democratic institutions. For example, some activists have proposed that politicians partner with their constituents through public assemblies or online consultative tools where legislation can be drafted, major decisions considered, and proposals developed.¹⁵ Representatives would be required to vote accordingly in the legislature, and could lose 15 M support at any time for failing to satisfy this condition. Thus, politicians can leverage 15 M’s considerable grassroots clout, but only if they meet standards of conduct set by the assemblies themselves. Once again, the use of conditional authority works as a means to prevent relations of domination – indeed, to upset the prevailing power imbalance between representatives and constituents in an effort to forge relationships which can be understood as democratic from both participatory and representative perspectives.¹⁶ In both these cases, conditional authority mechanisms work from the bottom up, as a check on actual or potential relationships of domination between the parties.

In other cases, conditions are imposed from the top down and function as means for powerful actors to secure compliance with their preferred norms. For example, Eurozone states are subject to the European Stability and Growth Pact (SGP) and the European Fiscal Compact (EFC), which oblige member states to maintain budget deficits of less than 3 percent of GDP and overall national debt levels under 60 percent of GDP.¹⁷ The European Commission monitors these conditions and countries that violate them risk substantial economic sanctions.¹⁸ In this sense, national spending authority is conditioned upon meeting certain externally determined, substantive macroeconomic outcomes.

Loans to indebted countries are another prominent mechanism of conditionality, as transnational credit is often dependent on a package of policy reforms. During the 2008 financial crisis, for example, Greek voters chose a left-wing government committed to kick-starting economic growth through taxation and government spending. The European Central Bank, European Commission, and IMF, however, refused to offer loans unless the government committed to austerity instead.¹⁹ The government put the matter to referendum and voters overwhelmingly rejected the lenders’ plan. Nevertheless, the Greek government could not afford the costs of governance without the loan and thus faced the prospect of having to leave the Eurozone or even the EU in order to pursue its preferred policies.²⁰ Its continuing participation in the EU is thus conditioned upon meeting certain substantive policy outcomes.²¹ To the extent that these outcomes are in question, so too is Greece’s membership in the bloc.

Though the power dynamics permeating these examples are meaningfully different, all of these cases share a unidirectional structure in that one party is a condition-setter and the other a condition-receiver.

Constitutional Pluralism

Perhaps the most interesting practices of conditional authority in Europe come from the interaction between EU and National courts, where each actor is both condition-setter and condition-receiver at the same time. The European Court of Justice (hereafter ECJ) has moved to place conditions on national law-making by proclaiming the supremacy of EU law over conflicting national legislation,²² and even over national constitutions.²³ As a result, national legislators are constrained to exercise their discretion within the parameters of EU law, as interpreted by the ECJ. National courts, however, have contested the ECJ’s claims of supremacy.²⁴ In a now famous pair of cases, the Solange decisions, the German Constitutional Court first ruled that because the EU did not provide human rights protections, it was incumbent upon German courts to review EU laws for compatibility with the German constitution.²⁵ In this way, EU supremacy was subjected to certain limits – Union measures which violated basic rights would not be applied. This represented a clear challenge to the authority of the ECJ. Rather than confront the German court directly, the ECJ busily developed a human rights jurisprudence based on the constitutions of its member states and the European Convention on Human Rights, to which Germany was a signatory. In Solange 2, the German Constitutional Court responded to this development, finding that the EU system now provided internal protections essentially equivalent to those in German Law.²⁶ As a result, German courts would no longer review EU laws on human rights grounds unless evidence could be presented that the EU system as a whole no longer provides equivalent human rights protection. These decisions have been euphemistically referred to as the So-long-as decisions: so long as the EU does not systematically violate the German constitution, it will be considered supreme.²⁷ So-long-as German legislators act within EU law, their acts will be upheld by the ECJ. In short, each actor receives the support of the other in exchange for satisfying certain conditions.

The so-long-as approach has since spread to other courts around the continent, most of whom now place conditions of some sort on EU supremacy in exchange for their acceptance of ECJ supremacy. This ad-hoc arrangement is significant because it effectively makes conditionality multilateral: both the ECJ and its national interlocutors are condition-setters, but also condition-receivers. Each actor polices the other, such that each actor must satisfy multiple standards at once.

In fact, in Celmer, the ECJ made this system of conditional acceptance and mutual policing horizontal, as well as vertical, ruling that Ireland does not have to honor extradition requests made by another member state if that state’s justice system is systematically deficient.²⁸ Thus, the acceptance of extradition requests between states is conditional: it turns on the extraditing party’s assessment of the requesting party’s legal system. This creates a system of peer-review between national courts, with each monitoring the others and cooperating only on a conditional basis. In essence, each court has to accommodate the concerns of the others in order to have its own claims accommodated in turn. Importantly, each actor retains the ability to contest the system unilaterally, limited only by its need for the cooperation of others.

The overall legal environment in Europe is thus shaped not only by the copresence of EU and national law, but also by their interaction. The claims of each are shaped by interaction with the other, such that European legality can only be understood as an inter-legality – a hybrid made of components which are themselves hybrid. Maduro describes the resulting system as “constitutional pluralism,” while Sabel and Gerstenberg call it “coordinate constitutionalism.” These authors stress that each court’s legitimacy and authority is constituted at least in part on the recognition of other courts.²⁹ This creates a system of autonomous but closely coordinated action, as each court maneuvers to make claims that are true to its own internal interests and ideologies, while also acceptable to its peers. In comparison to other forms of conditional authority, then, the relationship between European courts is reciprocal, with each actor constrained by the claims of the other.

Conditional Authority on the Northwest Coast of Turtle Island

As in Europe, practices of conditional authority are common on the parts of Turtle Island sometimes called Canada. Treaties signed in the most recent phase of treaty-making, the so-called Modern treaties, for example, often feature equivalence provisions, allowing First Nations to legislate freely, but only provided that they meet or exceed federal and provincial standards.³⁰ Paramountcy provisions are also common – First Nations’ jurisdiction is valid, unless it conflicts with federal or provincial law.³¹ Even in areas where First Nations’ jurisdiction is paramount, it must operate within the confines of the Canadian Charter.³² In all these ways, the authority that modern treaties grant is premised on certain conditions. Where those conditions are not met, Settler courts will withhold their recognition and support.

Section 35 of the Canadian constitution also creates conditional forms of authority. For example, Aboriginal rights are constitutionally protected – but only if they are compatible with crown sovereignty.³³ Aboriginal title allows a group to “choose the uses to which land is put,”³⁴ but title land cannot be used for purposes incompatible with Settler courts’ understanding of Aboriginal connection to the land, and it cannot be alienated except to the crown.³⁵ As a result, First Nations rights are only recognized when they meet certain conditions.³⁶ In all these cases, dominant Settler authorities use practices of conditional authority to impose their standards on subaltern nations, such that conditions act as a form of neocolonialism.³⁷

In other cases, conditional practices have emerged from the bottom up, as a means to prevent or disrupt relations of domination. For example, when Coastal Gas Link (hereafter CGL) began construction of a pipeline on Wet’suwet’en territory in Northern BC, the Unist’ot’en House group, whose traditional territory the pipeline crosses, asserted their title by establishing a healing camp in the path of the pipeline and preventing access to the territory by pipeline workers. As the Unist’ot’en camp cultivated relationships with extensive networks of supporters, they laid down broad protocols for their allies – conditions which solidarity actions must meet.³⁸ In this sense, supporters can take autonomous action in the name of the Wet’suwet’en, but only subject to certain conditions. Allies accept these constraints as a deliberate means to upset prevailing power imbalances between Settler and Indigenous communities. Swain and Henderson’s chapters in this volume (13 and 14), each in their own way, shed further light on this dynamic.

As in Europe, unidirectional forms of condition setting can function either to entrench or to disrupt prevailing power relationships.

The Potlache System

As in Europe, there are also some examples where conditions operate multilaterally, such that each actor is at once a condition-giver and a condition-receiver. One particularly advanced example comes from the Northwest coast Potlache system, one version of which is discussed thoughtfully by Webber in Chapter 15 of this volume. According to Trosper, Indigenous governance on the Northwest coast is generally conducted through linked groups of Houses.³⁹ Each house selects its own leadership, but leadership claims have to be validated through Potlaches: in order to claim a title, the contender must host a ritual feast, inviting the title holders of neighbouring houses.⁴⁰ Once assembled, neighbouring dignitaries observe rites designed to demonstrate that the claimant is qualified. They also receive gifts, which serve both as a recognition of their titles and as proof that the claimant is able to manage the claimed territory well and produce wealth from it. If they are satisfied, they affirm the claimant’s title. If they refuse or express only qualified support, the claimant’s authority is to that degree undermined. In this sense, one’s claim to authority is contingent on the support of other title holders. Where neighbouring title holders refuse to validate a claim or course of action, members of the House have to consider whether to hold their course and sacrifice the cooperation of their neighbours, change course, or even select a new title holder in order to maintain the benefits of conviviality.⁴¹

Once installed, both authority and title to land remain contingent on several duties, notably a duty to take care of the claimed land and preserve its productive capacity for future generations, and a duty to redistribute a portion of wealth generated within the territory to other Houses.⁴² Once again, these duties are monitored through regular Potlaches. Because hosting a Potlache involves distributing significant wealth, it requires efforts on behalf of the entire House. As a result, the ability to Potlache serves as proof that a) the territory is still productive, b) the members of a house are satisfied and willing to contribute materially to seeing the current title holder maintain their position, and c) the title holder recognizes and respects the authority claims of other Houses by extending invitations to them.⁴³

If, at any point, neighbouring title holders feel that a given official is not taking care of their responsibilities, they can refuse to validate their authority claim and withhold invitations to their own Potlaches. Likewise, members of a given house could refuse to contribute to a Potlache, thereby throwing their title holders’ position into question. Each title holder therefore had an incentive to cultivate the active support of their own House, and of neighbouring Houses as well. Trosper calls this system “contingent proprietorship” because valid title claims are contingent upon meeting certain external and internal conditions. In this system, multidirectional conditions make each House a condition-setter and a condition-receiver, making the overall relationship an object of dialogue and negotiation over time.⁴⁴

A Preliminary Typology of Conditional Authority

Both on Turtle Island and in Europe, practices of conditional authority provide a window into one way that different traditions of collective decision-making are braided together in practice, co-structuring the political.

As we have seen, unidirectional forms of condition setting often arise in contexts of profound power asymmetry, where dominant actors impose conditions on subaltern actors unilaterally. We might call these instances ‘imperial condition setting’. The IMF, for example, offers conditional loans to structurally impoverished countries who have little choice but to accept them. As a result, the IMF’s conditions are often experienced as an undemocratic imposition. In these contexts, conditions work as a form of indirect rule which allows one party to control the other without taking on the administrative, political, and military costs of colonizing them directly. The current Greek government, for example, exercises authority within the conditions laid down by its lenders. Likewise, the modern treaty process in BC offers First Nations forms of autonomous authority within the parameters laid out by the federal and provincial governments. These relationships are inherently asymmetrical. The condition-setter has robust autonomy, and also enjoys the power to impose conditions. The condition-receiver enjoys only a constrained form of autonomy, and often has little ability to influence the condition-setter.⁴⁵

However, unidirectional condition setting can also be used to deliberately upset power imbalances. The Unist’ot’en Camp’s use of “supporter protocols”, for example, allows subaltern actors to exert influence over their socially privileged supporters. Likewise, the structure of 15 M/Podemos connections seek to make ordinarily privileged officials subject to constraints from normally marginal citizens. In both cases, unidirectional condition setting functions as a form of tactical asymmetry to prevent or contest relations of domination. In these ways, unidirectional condition setting practices can be ‘counter-imperial’ as well, working to destabilize, rather than entrench, existing power dynamics.

Perhaps the most interesting forms of conditional authority, however, are those where conditions are mutual, such that each actor is both a condition-receiver and a condition-setter at the same time. We might call these instances ‘reciprocal condition setting’. In the Potlache system, or the relationship between European courts, for example, every actor is, to some extent, dependent on the support of its peers. This makes each tradition of collective decision-making responsive to several different standards of legitimacy simultaneously: their own standards, and those of other actors. In this way, each actor is both constrained by and able to exercise agency though its relationship with every other actor.

The resulting relationships are capable of holding complex tensions. Relations are both cooperative, in that actors rely on one another’s support, and also competitive, in that each is seeking to shape the environment according to its own needs and interests.⁴⁶ As with the imperial and counter-imperial types above, power dynamics remain central. Yet, where counter-imperial conditions work as a tactical corrective that presumes a broader set of hegemon–subaltern relations, reciprocal condition setting is non-imperial, in that it can proceed absent relations of domination. In fact, in an argument that resonates with Young’s account of legitimacy in pluralist settings,⁴⁷ Angelbeck posits that reciprocal condition setting is part of a complex set of practices on the Northwest Coast which work together to prevent the emergence of any dominant political actor.⁴⁸ Their goal is not therefore to unsettle an existing imperialism, but rather to prevent a state of imperialism from coming into being. Put differently, their goal is to build and maintain a state of relational nondomination. In this way, practices of reciprocal condition setting in particular may represent an important means to pursue legitimate relations between overlapping authorities, thus attending to the relational aspects of democratic legitimacy.

Theorizing Democratic Legitimacy in Pluralist Space

Having explored a range of practices of conditional authority being enacted in two diverse settings, it is now worth reflecting on what these practices mean for democratic theory and, in particular, how they can help us think about democratic legitimacy.

In her account of ‘relative authority’, Roughan argues that legitimate authorities must not only make justified appeals to their own subjects, but also interact in justified ways with other sources of authority. To assess this second feature, Roughan introduces the ‘relative authority test’:

1. (i) The relationship between the authorities must improve or at least not diminish the prospects of conformity to reason⁴⁹ for [the subjects of each authority] …

2. (ii) The relationship must be consistent with the values protected by the procedures conferring standing upon each authority …

3. (iii) There must be no overriding undefeated reasons against having that relationship.⁵⁰

Without endorsing it as the only or even the best way to assess democratic legitimacy in pluralist contexts, I nevertheless contend that such a test allows us to explore the extent to which practices of reciprocal condition setting might allow overlapping authorities to attend to the relational or pluralist dimensions of their legitimacy.

First, because each authority retains distinct decision-making processes, each is able to freely follow the internal logic or ‘reason’ of their tradition. The need to meet the conditions of other authorities does compromise the ability to freely follow the logic of one’s own tradition to some extent, in that this logic is no longer the only factor weighing upon a decision. Rather, actors are bound to take into account one another’s logics as well. However, the decision of how to respond to the conditions of others remains subject to the logic of each tradition. Moreover, any loss of reasoning autonomy is compensated for by the fact that other authorities must also take your logics into account, thereby preventing their decisions from seriously impeding your ability to live according to that logic. Thus, authorities trade some degree of decision-making autonomy for some degree of influence over their peers. While internal decisions are somewhat less strictly dictated by an authority’s internal logic, the decisions of others are made responsive to this logic. Whether this trade-off increases or decreases the overall ability of the subjects of any given authority to live according to their own logics will therefore depend on how seriously subjects of that authority are impacted by the decisions of other authorities. In cases where these impacts are significant, reciprocal condition setting will likely improve the overall ability for subjects to live in accordance with their own logics.

Regarding the second criteria, condition setting is not necessarily equal, as we have seen. Conditions can be unilateral, or some parties might set more extensive or more stringent conditions than others. Thus, where subjects confer equal standings on each of the authorities in question – for example, where both claim an exclusive right to governance, or where both claim the right to negotiate with other authorities – both parties can set conditions equally (reciprocally) and be acting in accordance with the level of authority conferred on each by its subjects. Where the authority conferred on one party by its subjects is lesser than the authority conferred by another by its subjects – for example, where one party claims comprehensive governance rights and the other claims only minor forms of self-determination – condition-setting practices can provide ways to recognize this asymmetry. Thus, reciprocal condition setting can often be compatible with the authority conferred upon each party by its subjects, whether these are equal or not.

Finally, there must be no overriding reasons against the relationship. Roughan mentions necessity in particular: where “necessary” actions would be prevented or impaired, reciprocal condition setting may not be appropriate.⁵¹ However, both the remarkable success of judicial dialogue in the EU and the millennia-long success of Potlache systems suggest that practices of reciprocal condition setting are capable of successfully managing relationships over time without preventing either actor from taking necessary actions. Indeed, the capacity of each actor to take such steps as it deems necessary is a defining feature of the reciprocal condition setting dynamic – should either party feel that truly necessary goals are being frustrated, they would simply act autonomously and sacrifice the cooperation of the other party.⁵²

Thus, under certain conditions, reciprocal condition setting provides one way for each party to engage with its peers in ways that can be plausibly justified, thereby attending to the pluralist dimensions of democratic legitimacy. Even if Roughan’s test is not definitive, the primae facie case for the utility of conditional authority is strong. In fact, compared to federal arrangements or co-decision mechanisms, reciprocal condition setting offers a distinct way of seeking pluralist or relative legitimacy.

In federal contexts, each authority rules unilaterally within its jurisdictions and is powerless beyond them. Thus, we might say that the authority of each party is deep, but not broad. This allows each party to act according to its own logics and its logics alone – within its jurisdictions. However, it also means that actions outside of its jurisdiction are unlikely to reflect its logics at all. Such arrangements therefore involve a trade-off. Where each party prioritizes control over different aspects of governance, this trade-off may allow each party to relate in ways that maximize their ability to act according to their own logics, at least where those logics matter most.

Conversely, co-decision mechanisms allow each party to share decision-making on a potentially expansive set of shared concerns. This guarantees that every issue of concern to either party will be responsive to that party’s logics – but only alongside and in conversation with the logics of others. In comparison with federalism, such arrangements offer each party a form of authority that is broad, but not deep. Once again, a trade-off is involved. Where comprehensive input is more important to the parties than particular areas of autonomy, co-decision may allow each party to inter-relate in ways that further their ability to live according to their own logics.

Reciprocal condition-setting practices offer a distinct set of trade-offs. Here, each party retains its own distinct institutions operating according to their own logics, thus offering a deeper form of autonomy than co-decision mechanisms. However, each party is also able to exert influence on a broad range of topics, offering a broader sort of authority than federal arrangements. We might say that the authority of a party is as broad as it needs to be in order to protect its interests, and as deep as it can be without adversely affecting other interests. Where the concerns of the parties overlap too much to divide jurisdictions in a federal manner, yet the parties value maintaining distinct institutions without collapsing them into a shared, compromise body, reciprocal condition setting may represent a preferable way for overlapping authorities to legitimize their interactions.

In comparison to federal and co-decision structures, practices of conditional authority are also distinct in that they need not be fully articulated or structured in advance. Instead, conditions can be articulated gradually over time, in response to real problems and in dialogue with other authorities. Indeed, the German Constitutional Court continues to elaborate, clarify, and adjust the conditions it places on EU authority even now, sixty years after those standards were originally imagined. Rather than relying on a priori standards capable of meeting any hypothetical concern, the court is able to articulate concrete standards in relation to particular concerns as they arise, and to modify those standards as the EU adjusts its conduct. Likewise, as Webber shows, the Gitxsan have been adjusting the substance and form of their relations since time immemorial. This makes practices of reciprocal condition setting flexible and responsive, and also allows them to proceed in cases where agreeing on the shape of federal or co-decision structures would be challenging or impossible.

In an almost functionalist manner, practices of reciprocal condition setting and the dialogues they create can also facilitate the gradual emergence of imperfectly shared inter-societal norms.⁵³ As each party articulates its logics in conversation with others, a shared body of transnational precedent begins to emerge, allowing parties to deepen their mutual understanding and cooperation over time. In this way, the dialogues created through reciprocal condition setting can be especially appropriate where trust and mutual understanding cannot be taken for granted but, rather, need to be cultivated over time.

Last, because condition setting is driven by real concerns, the dialogue it creates does not take place in the abstract, but is instead constitutively situated in lived experiences and the unequal power relations that structure them.⁵⁴ Thus, reciprocal condition setting provides a means to call existing power imbalances and the de-democratizing practices⁵⁵ that sustain them into question over time.

Practices of conditional authority, and of reciprocal condition setting in particular, therefore constitute a useful set of tools that overlapping authorities can bring to bear in attempts to legitimize their pluralist relations. In the context of complex relationships, actors may even choose to draw on several approaches in concert. In the EU, for example, some powers rest at the national level and others at the European level, as in federal structures. In most matters of EU jurisdiction, the European Parliament (representing the people of Europe as a demos of its own) and the Council of Ministers (representing each state as a distinct demos) engage in legislative co-decision. European courts, however, engage in practices of reciprocal condition setting. Europe therefore strives toward relative or pluralist legitimacy by operationalizing a number of practices of interrelation at once. As Lord and Magnette argue, the EU has iteratively developed “political systems that are not configured for the articulation of any one view of legitimacy but for the mediation of relationships between several.”⁵⁶

Likewise, on Turtle Island, early-contact treaty practices often divided jurisdiction either territorially or personally, but also established a norm of co-decision for subjects of shared concern.⁵⁷ Treaty terms can also be seen as laying out a series of conditions that Settlers must meet in order to exercise legitimate authority on Indigenous lands: for example, providing certain medical or educational services, setting aside certain lands, or guaranteeing certain rights. In this way, treaty-diplomacy could involve aspects of federal, co-decision, and conditional authority practices all used in concert to pursue pluralist or relative legitimacy. Indeed, oral accounts of treaty-making from both Settler and Indigenous histories stress that treaty-making was as much about sharing authority as it was about securing mutual independence.⁵⁸

More recently, patterns of interaction between Settler and Indigenous authorities have, of course, become dramatically lopsided and unjust. As discussed, the division of jurisdiction through modern treaties has been paired with paramountcy and equivalence provisions which leave Settler authorities autonomous in their own jurisdictions while subjecting Indigenous authorities to imposed conditions, thereby skewing the relationship in favor of Settler authorities. Likewise, most practices of co-decision have become relationships of co-management instead, wherein shared bodies play advisory roles subordinated to dominant Settler institutions.⁵⁹ Similarly, condition-setting practices have become predominantly unilateral, especially through insistence that the Canadian Charter of Rights applies to First Nations governments.⁶⁰

While the literature on treaty federalism⁶¹ focuses on realigning the relationship between Settler and Indigenous authorities by adjusting jurisdictional boundaries and (re)creating co-decision forums, making condition-setting practices reciprocal could complement this approach. For example, future treaties could not only subject First Nations to the Charter as interpreted by Canadian courts, but also subject federal and provincial governments to standards set by each Nation and articulated, policed, and adjusted by independent Indigenous legal institutions. Federal, provincial, and Indigenous bodies would all be able to govern within their negotiated jurisdictions, but each would have to respect the fundamental standards of the others. Each would have its own institutional voice and, thus, an iterative dialogue between Indigenous and Canadian law could begin.

In all these ways, practices of reciprocal condition setting may have something to offer to overlapping authorities that are interested in democratizing their relationships and thereby attending to the relative dimensions of their legitimacy.

Conclusions

In sum, conditional forms of authority require the condition-receiver to meet multiple standards of legitimacy at once in order to receive the support of its peers. As we have seen, this practice can be unilateral, either as a way for dominant powers to enforce standards on subaltern counterparts, or as a way to tactically upset prevailing power imbalances, creating space for subaltern voices in relations of persisting asymmetry. When practices of conditionality are reciprocal, however, both partners are constrained not only by their own internal standards of legitimacy, but also by those of their interlocutors. This allows actors to co-articulate social regulation in a way that can be justified to all participants without requiring them to either divide jurisdictions between them or converge around a shared decision-making structure. Thus, reciprocal condition setting represents a novel way that overlapping authorities can attend to the relational components of their legitimacy. In so doing, these practices furnish one way pursue democratic legitimacy in pluralist space.