ARENA Working Papers
WP 01/19


Discourse and Order -

On the Conditions of Governance

in Non-Hierarchial Multi-Level Systems


Jürgen Neyer


Among international organisations, governmental addressees and affected domestic parties can provide effective, efficient and legitimate policy-making. Although the argument is not a normative argument , it clearly has normative implications The paper challenges the widely held belief that political order among democraciescan be understood as the product of an asymmetrical international distribution of power. Instead, it develops the argument that only transparent cross-level and cross-border deliberations: Establishing effective political order implies the realization of a transnational deliberative structure and to accept that legitimate governance and effective governance are two sides of one coin.



1. Introduction

Most modern theories of democracy agree that non-coercive public order presupposes a discursive interaction both among different parts of society, and the society at large and government. Majoritarian decision-making and the delegation of power to a ruling elite is only accepted by citizens if the ruling majority is obliged to publicly justify their policies by reference to broadly consented norms and if it does so in an open and unlimited discourse (Habermas 1992, Rawls 1971). As opposed to modern democracy theory, international relations theory has little sensitivity for the linkage between order and discourse. If used as an empirical category, international order is most often presented as the product of an asymmetrical distribution of power, either in terms of material (Keohane 1984), normative (Biersteker 1992) or ideological (Cox 1987) resources. The very idea, however, that order presupposes the consent of the ruled, and involves deliberative discourses for attaining it, is still alien to most of international relations (IR) theory. If the notion of discourse (or some equivalent) is applied at all, it most often remains limited to the intergovernmental level (Bull 1977). The normative implications of this neglect are little less than serious: One only too easily is led to argue that order beyond the state is limited to executive multilateralism (Ruggie 1993) or even to tie it to the readiness of a major power to burden the task of unilaterally providing rules and adherence (cf. Mearsheimer 1994/95).

If it true, however, that global politics is undergoing a historical transformation from the national to the postnational constellation (Habermas 1998), the time might be right for reassessing the adequacy of this assumption. This paper aims at doing so by combining the insights of recent multi-level governance analyses with a deliberative theory of interaction. According to such a perspective, international order must be understood as a non-hierarchical political structure that encompasses the domestic, the governmental and the international level (section 2). An important means of political interaction is policy deliberation which is functionally superior to bargaining when groups are large and power structures are roughly symmetrical (section 3). A deliberative perspective on postnational governance finally informs normative concerns (section 4) by emphasising the need to transform diplomatic interaction into a structure of transparent cross-level and cross-border deliberations among international organisations, governmental addressees and affected domestic parties.

2. Governance and Heterarchy

Political science is accustomed to situate governance structures on a continuum of power concentration, which ranges from hierarchy on the one side to anarchy on the other. Thinking in terms of anarchy and hierarchy and describing empirical forms of governance as laying somewhere in between can be traced back at least to the writings of Thomas Hobbes. It was primarily motivated by a deep concern that no political order will be viable without a single point of concentrated power, able to set and enforce binding rules. Over the centuries, the anarchy/hierarchy dichotomy has proven to be a powerful heurism for political science in that it allowed understanding structural differences between international and domestic politics, equating hierarchy with political order and anarchy with political disorder.

If applied to the empirical realities of modern postnational politics, however, it is difficult to make sense of the distinction. Following Robert Dahl (1994), J�rgen Habermas (1998), Michael Z�rn (2000) and many others we are in the midst of a historical transformation from a national to a postnational constellation. The increasing intensity of cross-border social and economic transactions (�globalisation�) undermines the nation-state�s autonomous problem-solving capacity while at the same time processes of political internationalisation add new layers of political authority on top of it. Socio-economic globalisation and political internationalisation have propelled a process, in which nation-states increasingly pool their sovereignties (Keohane/Hoffman 1991) and empower inter- or supranational institutions to cope with those tasks they are no longer able to deal with autonomously. This process has not only led to �governance without government� (Rosenau/Czempiel 1992) and �governance beyond the nation-state� (Z�rn 2000) but also to the emergence of �law above the state� (Volcansek 1997, Neyer 1999) and a �legalisation of international politics� (Abbott et al. 2000). Some even interpret the empirical evidence as suggesting the emergence of a �global law without a state� (Teubner 1996) or, even more explicitly, a �new world order� based on transnational communicative networks (Slaughter 1997). Diplomacy becomes increasingly embedded in a dense normative structure, promoted by a multitude of formal and informal transgovernmental as well as non-governmental cross-border networks (Slaughter 2001). In this new structure, political interaction no longer follows the logic of strategic bargaining only but is also open for a �logic of appropriateness� (March/Olson 1998) and a �constitutionalisation� of formerly diplomatic structures, not only in the EU (Alter 2001, Pernice 1999) but also beyond (Jackson 1999).

Against this empirical background, it seems appropriate to describe the structures of postnational governance as following a �heterarchical� logic, which acknowledges at the same time the formal sovereignty of the nation-state while arguing that complex interdependence requires rules for the conduct of interaction and an inclusion of non-governmental actors in processes of postnational policy-making. [1] In such a heterarchical structure, political authority is neither centralised (as under conditions of hierarchy) nor decentralised (as under conditions of anarchy) but shared, which means that the units of a system pool their authorities with the purpose of a shared execution of governance. Likewise, the structure of interaction follows neither a vertical logic (as in a hierarchical setting, in which an author of a rule issues commands, monitors and eventually enforces compliance), nor a purely horizontal logic (as in an anarchical setting, in which each individual actor must look unilaterally for ways and means to interact with other actors) but combines both elements into an integrated mode of interaction. Political interaction therefore is in permanent need of cross-border and cross-level communicative processes with the purpose of accommodating the preferences of the constituent units (both horizontally and vertically).

The concepts of anarchy, hierarchy and heterarchy of course refer to ideal types. Empirically it will hardly be possible to observe them in purity. An empirical approximation to a heterarchical structure, however, may be found in the first pillar of the EU with its parallelism of legislative competencies shared between the Commission, the Council and the European Parliament, and the sharing of competencies between the Commission and the Member States in the implementation of rules. In this setting, none of the involved actors can unilaterally pursue its goals without finding the approval of all other actors: It is not only that the member states must co-ordinate their preferences among each other to find enough votes for a qualified majority. The need for co-ordination also applies to the European institutions: The Council cannot act without a proposal on the part of the Commission, and again needs the Commission to promote its implementation. The Commission likewise must formulate its legislative proposals in a way that they have a good chance to pass the scrutiny of the Council and the Parliament and must secure member state approval in Comitology for its implementing measure. Furthermore, because the Commission has only limited capacities to enforce European law, it invests much effort to safeguard broad political support for its proposals, to consult with as many interest groups as possible and to postpone disputed decisions rather than to vote on them. Successful political interaction in the first pillar of the EU therefore is strongly characterised by a demand for a shared and co-operative exercise of governance among the member states and the European institutions.

A co-operative exercise of governance does of course not imply that all levels of a heterarchical structure always have an equal influence on policy-outcomes. As a rule one should rather expect that the influence of the different levels empirically differs from issue area to issue area and is subject to both institutional provision (e.g. allocation of legal competencies and access to information) and public awareness. Even in issue areas, however, in which the Commission has broad discretionary powers, it still must respect that it has no power to coerce member states into compliance (there is no European police) but must safeguard that its decisions remain acceptable to its member states and the member states� publics. Open cases of non-compliance, such as in the infamous BSE case (Neyer 2000), or less dramatic cases of silent non-implementation of EU law underline that compliance in the EU (and therefore the effectiveness of postnational governance) rests on the precondition that member states �accept it (=international rules, JN) as an autonomous voluntary act, endlessly renewed on each occasion, of subordination� (Weiler 2000: 13). The same caveat applies to supranational dispute settlement bodies or courts. Although it is true that the legitimacy of courts is not to the least based on the application of legal reasoning (deducing decisions from general normative rules in an argumentative manner), it also is hardly imaginable that the political status of the ECJ in the European institutional system would not suffer if its decision were a permanent political affront to the member states and the member societies (Garrett et al. 1998).


3. Deliberation and Bargaining in Heterarchical Multi-Level Structures

As these brief explanations already imply, effective governance in heterarchical multi-level contexts requires an inclusive and co-operative mode of interaction. And indeed, empirical evidence underlines that political interaction in the EU relies very much on deliberation and uses strategies of bargaining or voting only as instruments of last resort. Both the empirical evidence of a very limited use of voting procedures (Eriksen/Fossum 2000: Fn. 7) and the high relevance of deliberative procedures (Joerges/Neyer 1997, Lewis 1998) can be taken as evidence that effective governance under conditions of heterarchy is an intrinsically deliberative business.

Much of international relations theory, however, is highly critical of the empirical relevance of deliberation. Agenda-setting works by authors such as Schelling (1960), Waltz (1979), Keohane (1984) or Krasner (1999) describe an international world that is by and large dominated by monological actors who have little regard for the concerns of others. And indeed, governmental delegates are not appointed for realising the collective optimum but are paid for advancing national interests and are monitored by their superiors for the degree to which they promote them. Likewise, both intergovernmental and non-governmental organisations have specific agendas and fixed interests (to maximise influence or donations) and therefore can hardly be expected to act as the communicative individuals of Habermasian discourse theory. So how comes that deliberation can be an important mode of interaction in multi-level contexts? Is deliberation among representatives not a contradiction in terms? Or, to say the least, a form of interaction which is largely restricted to expert communities with low political salience and becomes immediately trumped by bargaining if �real� concerns with significant cost implications are involved? Is the empirical evidence emphasising the relevance of deliberation biased and focussed on issue-areas that have only low potential for conflict? And is therefore any optimism concerning the capacity of postnational institutions to engage in cross-border problem-solving not strongly exaggerated?

This is not the place to produce a systematical collection of empirical data on the relevance of deliberation in the postnational constellation. It is, however, the place for discussing why and under what conditions cross-level and cross-border deliberation can be expected to be a dominant mode of communicative interaction and therefore heterarchical political structures be assumed to perform well. For doing so, the paper will in the following distinguish several types of communicative interaction, argue that the specific conditions of the EU produce incentives for the member states to prefer deliberation over bargaining, and show that they have the means for facilitating it. I will finally take issue with the puzzle that bargaining still seems to be an empirically more significant mode of interaction than this approach suggests by pointing to some of the political costs of postnational deliberation.


3.1. Modes of communicative interaction

It has become common in the literature to distinguish between two most important forms of political interaction, namely arguing and bargaining. [2] Both types of interaction can be understood as modes of communication, which consist of an exchange of speech acts and aim at motivating other actors to accept own preferences as a guideline for collective action. The basic difference between the two types of interaction lies in their illocutionary content and their perlocutionary intention: While arguing rests on claims of factual truth and/or normative validity and intends to change behaviour by convincing others of the rightness of a proposal or demand, bargaining relies on promises and threats (including threats of exit) and intends to change behaviour without convincing (or only persuading) others (cf. Mueller 2001: 3). As opposed to bargaining, which enjoys broad acceptance as being an important analytical category for describing political interaction beyond the state, even those who grant the same status to deliberation are far from united in theorising about its empirical relevance. At least three different approaches to the analysis of postnational deliberation can be distinguished:

a)      A first approach stems from the work done on the influence of epistemic communities (groups of non-political experts or scientists who work in the same profession and share a common problem understanding) in international politics. As Haas (1992) and Gehring (1998) have shown, epistemic communities can have a significant impact on international politics if governments have not yet identified their �national interest� due to (a) lacking information on the nature of a problem, (b) unstable domestic interest coalitions or (c) lacking knowledge about the implications of different policy options on broader governmental objectives. If these conditions apply, governments are relatively open to non-political advice by experts. Political interaction therefore is likely to be shaped by discursive processes among experts, by the application of standards of truth-seeking and follows the logic of appropriateness rather than of strategic rationality. Although an epistemic community approach promises to underline the importance of deliberation in international politics, it is at the same time highly sceptical concerning the overall relevance of deliberation. By restricting its probability to situations in which information is scarce and governmental preferences are not yet identified, it implicitly denies it any central importance.

b)      An alternative approach to deliberation can be derived from communitarianism. As Miller (1995) and others argue, national communities can be separated from international communities by their shared notions of ethical values and principles. These shared notions are not the result of a mere contract among individuals (as contract theory would argue, e.g. Rawls 1971) but of a long historical process of nation-based communication. In political life, such shared notions of ethical values both give expression to idea of the nation as an ethical community and function as the prerequisites of deliberations about the meaning of the common good and about the goals of political action. For the purpose of understanding communicative interaction beyond the state, a communitarian approach seems at first hand to be in sharp contrast to the idea of cross-border deliberation. Because it connects deliberation to shared ethical concerns, it rejects any claim that deliberation beyond the nation-state can be empirically significant. As soon as we relax the assumption of an individualistic international world, however, a communitarian approach becomes more helpful. Assuming that � at least in the EU � national governments today are no longer only representing autonomous nation-states but have come to accept that the collective exercise of governance is a necessary means for realising individual preferences, we have little difficulties of conceptualising governments as �dialogical actors who co-ordinate their plans through argumentation aimed at reaching mutual agreements� (Eriksen/Weigard 1997: 221). If we furthermore accept that the EU is not only a technical instrument for solving problems but also a political community in which shared ethical concerns (human rights, rule of law, etc.) are an important foundation of governance (cf. Schimmelfennig 2001), we also may think of the EU as a normatively integrated life world in which only those actors who act collectively responsible behave rationally. Deliberation understood as a form of reasoning that applies shared normative standards and guides actors by providing incentives to behave �appropriately� (March/Olson 1998) becomes plausible. To be sure, the adequacy of a communitarian mode of theorising finds it limits as soon as we leave the EU and investigate political interaction in less normatively integrated policy areas. In the EU, however, there is little reason to believe that shared ethical concerns may be irrelevant and that governments are still only monological actors.

c)      An even more helpful approach to understanding the relevance of deliberation can be derived from a republican tradition of theorising. In such a perspective, deliberation refers to a mode of communication in which actors are required to state their reasons for advancing proposals by referring to consented norms (cf. Elster 1998). Such norms are, for example in the EU, Treaty law, in a constitutional democracy the constitution, and in the WTO the WTO Treaty. The mode in which discourses are conducted in a deliberative procedure follows very much the logic of legal reasoning (cf. Dworkin 1991: Chapter 2): Each of the actors in a given dispute interprets a given norm relevant for the decision to be taken according to his or her subjective understanding of its meaning, and by openly describing his or her way of deducing implications from an agreed norm. In so doing, a sample of different interpretations emerges which are accessible for critical evaluation by third parties. Such evaluations can be conducted by a great variety of actors. In a democracy it usually is the parliament which serves as a forum for critical discourse and as the institution in which demands for justification and coherence with basic norms are voiced. If these demands, however, remain either unheard or if the reasons given by a ruling majority are unconvincing to the minority, it has the option to ask a constitutional court to declare a legislative act to be anti-constitutional and void. Likewise, any member state in the EU can ask the ECJ to give an opinion on the integrity of legal actions by any European institution or member state and demand to declare that action to be incompatible with the Treaties. Understood such, deliberation does neither depend on the existence of a shared problem-understanding nor on historically established and collectively shared ethical concerns. It only requires that actors abstain from using threats or promises to advance their preferences, agree on basic constitutional norms and accept that previously identified third parties have the competence to give an authoritative opinion on the validity of their arguments.


3.2. The functional superiority of deliberation

Deliberation is often criticised for being nice as a normative idea (because it emphasises co-operation over conflict, and forces actors to justify preferences and actions by reference to consented norms) but suffering from serious flaws when applied in political practice. It is argued that its emphasis on discourse implies much longer periods of time for producing a collective outcome than a procedure that follows the logic of bargaining does, and that it is less effective because it naively trusts in convincing and overlooks the need to enforce rules. I will argue in the following that both claims are difficult to maintain and that a number of reasons can be raised which point to quite the opposite finding. Policy deliberation is not only far from being utopian but also a functionally superior mode of interaction and, thus, can well be understood as a direct implication of individual rationality. It is at least three dimensions in which the functional superiority of deliberation over bargaining can be illustrated:


The efficiency of bargaining crucially depends on the preconditions that the number of participants is small and that power resources are highly asymmetrical. The perfect setting for a bargaining procedure consists of a group of only two actors, of which one is strong and rich and the other one is weak and poor. In such a setting, the group will have little difficulties to arrive at a quick solution. The strong and rich actor will always be able to act as a benevolent or coercive hegemon and either threaten its partner with negative consequences in case he does not agree to a proposed solution or promise to compensate him for any damage which a proposed solution may imply.

Efficiency becomes a highly problematic issue, however, as soon as the number of actors and the symmetries in individual power resources rise. Imagine a setting of fifteen actors in which no single actor is able or ready to shoulder the costs of enforcing a deal by threatening others or by promising compensating side-payments. Under such conditions, any possible deal must satisfy the preferences of all fifteen actors and necessitates a time-enduring process of balancing individual preferences until one solutions has been identified which leaves no actor worse off than it had been before (Pareto-Optimum). Of course, the practice of bargaining knows a number of mechanisms to reduce the impact of these problems such as iterated interaction, side-payments and so forth (cf. Schelling 1960). At the end of the day, however, the crucial problems of bargaining under conditions of symmetrical power distributions and a large number of actors remain valid. It is little surprise therefore, that intergovernmental bargaining at Treaty reforming intergovernmental conferences (IGCs) or (even worse) at the Ministerial Conferences of the WTO necessitate intense preparations, are nevertheless often close to collapse and leave all actors exhausted until a deal can finally be struck.

Whilst bargaining easily runs into serious functional problems if the number of actors and/or the symmetry of power distribution rises, deliberation as a mode of interaction is far better equipped to cope with both conditions. Under conditions of deliberation, any individual preference can be assessed in terms of its coherence with consented basic norms (such as reciprocity, the principle of non-discrimination or the precautionary principle) and all those preferences, which fail to withstand the test, are taken out of the sample of possible solutions. To be sure, deliberation does not necessarily lead to only one solution for a problem. It rather often happens that different and mutually incompatible proposals can be justified as being in accordance with consented basic norms. Imagine for example the case of redistributive policies. Although Art. 14 of German Basic Law stipulates that �property obliges� and that its use must be to the benefit of all, it is far from clear what level of redistribution this implies. Likewise, Art. 106 demands the establishment of a redistributive mechanism among the German Laender which safeguards �uniform life conditions� throughout the whole territory of Germany: But what level of taxation/redistribution is appropriate for giving meaning to these provisions? Even the most sophisticated deliberation will run into serious difficulties if it aims at identifying the one and only number which gives expression to both constitutional norms. It is not surprising therefore that the German Constitutional Court has never been willing to identify an appropriate level of redistribution, either on the intergovernmental level among the Laender or on the interpersonal level among individuals. What it did however, was to set up procedural standards according to which a political compromise had to be found and to demand from a legislating majority to give good reasons for whatever level it chooses. By doing so, it enforced a deliberative procedure which excluded all those options which could not be reasoned by referring to well-stated justifications and it did not hesitate to declare solutions as being unconstitutional if they failed to withstand those criteria (Bundesverfassungsgericht 1992). Deliberative procedures therefore have a filtering function that at least narrows the set of possible solutions and therefore makes political compromise more likely.

The very same logic can be observed in European politics. Before the introduction of the principle of mutual recognition in 1979, legislation in the Council of Ministers was heavily handicapped by detailed regulations and the permanent need to accommodate the preferences of the Member States in all and every detailed aspect of market-making. To overcome the resulting inefficiency, the Commission began in 1980 to assume all national restrictions of the free movement of goods to be illegal if they could not be justified with reference to public health and safety. [3] Following this decision, the Commission also established and developed its system of scientific committees, which were given the task to investigate the reasons provided by Member States. To be sure, market-making policy in the EU is still far from being an apolitical business. What it has achieved, however, is to increase its efficiency by obliging member states to justify actions by reference to consented norms.


A similar logic applies to the relative effectiveness of policy outcomes under a deliberative and a bargaining procedure. As opposed to policy outcomes that can be justified as implications of consented norms, bargains do have no independent compliance-pull (Franck 1990) apart from satisfying temporary preferences. If bargains are the product of threats, all actors on whom an outcome has been enforced have a strong incentive to defect as soon as possible. If either no individual actor exists who has the capacity and the readiness to safeguard adherence to the outcome of a bargain (by shouldering the costs of monitoring and enforcement), or if the number of actors is too high to allow for effective monitoring on the part of a single actor, bargaining can hardly satisfy the need for effective norm application. Furthermore, at least among democracies, the intergovernmental exchange of promises and threats quickly finds its limits of effectiveness as soon those governments on which as deal has been enforced try to implement it domestically. In most democratic setting, governments will face serious difficulties to implement international rules if these rules find no or very limited social acceptance, or if they even contradict established normative concerns. Enforced deals therefore are most likely to arouse public protest and make it highly difficult for governments to comply with them.

As opposed to policy outcomes conducted by means of bargaining, deliberative norms are part of an overarching normative framework, in which the coherence of basic norms with more specific norms implies that non-compliance with a specific rule equals non-acceptance of the implications of basic rules. Non-compliance with the outcome of a deliberative procedure therefore not only rejects a specific deal but implicitly opposes the whole normative structure of which the specific norm is part. It therefore is a far more serious issue, may trigger broader implications for the defecting party and will be thought twice. Furthermore, if a government can sell an unwelcome and costly international outcome by referring to broadly accepted norms, it will find itself in a much easier position and will have to face much less domestic political costs when complying with it.


Bargaining is notorious for its weakness in safeguarding a high quality of policy outcomes. As a decision-making procedure, it knows no safeguards that normative concerns outside of the individual actors� preferences are respected. Quite on the contrary, the set of possible solutions to a bargain is defined by the congruence of a solution with the preferences of all actors. Under conditions of a large number of actors and a symmetrical distribution of power, lowest-common-denominator outcomes therefore are the rule rather than the exception and it will hardly ever be possible to realise more than Pareto-optimal outcomes (independent of their adequacy for solving a specific problem). Bargaining therefore is not only insufficient in terms of the quality of policy output but also implies the danger to frustrate politicians and publics alike, who are concerned with the problem-solving capacity of postnational governance. Telling example of such frustrations are efforts to realise a sound international environmental policy or to harmonise capital taxation in the EU. In both cases it was the veto of individual players (the US with regard to international environmental policy and Luxembourg with regard to taxation) with prohibited anything but an outcome which satisfied no one. As opposed to bargaining, any policy outcome under a deliberative procedure must be justified in relation to consented basic objectives and can be challenged if it fails to do so. Deliberative procedures therefore have the probability not only to improve the efficiency and the effectiveness of decision-making but also to safeguard that diplomatic concerns do not trump the concern for finding solutions that are capable of reducing real world problems.

In sum: if (1) no actor is able or willing to impose its preference on the other actors and to pay the costs of necessary threats or promises (both in terms of legislative and executive actions), and/or if (2) a group is large, bargaining is functionally inferior to deliberation in terms of efficiency, effectiveness and the quality of policy-output. Therefore, if (3) actors have an interest in the co-operative exercise of governance with the purpose of solving collective problems, bargaining can hardly be a preferred option. We should rather expect that governments have significant incentives to engage in deliberative interaction.

3.3. Institutional preconditions of successful deliberation

Cross-border and cross-level deliberation, however, demands more than just the insight that it is functionally superior to bargaining. As a matter of fact, governmental delegates are not appointed for realising the collective optimum but are paid for advancing national interests and are monitored by their superiors for the degree to which they promote them. Likewise, both intergovernmental and non-governmental organisations have specific agendas and fixed interests (to maximise influence and/or donations) and therefore can hardly be expected to act as the communicative individuals of Habermasian discourse theory. Finally, governments may have strategic reasons to pursue their relative autonomy from public scrutiny at the international level as much as possible (Moravcsik 1994, Wolf 1999). The empirical reality of postnational governance therefore often looks like traditional international diplomacy and excludes a great number of non-governmental actors, which are nevertheless important for realising domestic acceptance for international rules. The likeliness of a deliberative mode of interaction therefore not only depends on the insight that it is functionally superior to a bargaining mode of interaction but also necessitates an institutional frame which fosters an inclusive and disciplined political discourse.

(a) Deliberation and Representation

A first and most important precondition of deliberation is the representation of all those actors who have important stakes in an issue. An emphasis on as much representation as possible not only meets with normative requirements (identity of those who author a rule and those who are affected by it) but is also important for functional reasons. It is basically two causal pathways that underline the importance of representation for the generation of successful deliberation.

A first pathway focuses on the degree to which affected domestic non-governmental parties accept international norms (social acceptance). The importance of a reasonably high degree of domestic acceptance of international norms is basically due to the fact that it is the public discourse that decides in all modern democracies about the definition of the common good. Being faced with a situation in which international norms meet with broad domestic opposition, governments will find it hard to legally implement or even enforce them. As actors who are in need to find public support for their policies, democratic governments will hesitate to ignore public opinion and � if facing the decision � rather tend to satisfy their domestic constituencies than their international partners. A rather high congruence between legal norms and public opinion therefore is not only important for reasons of democratic legitimacy but also for reasons of the effectiveness of international norms.

A second and interrelated pathway for the impact of representation on successful deliberation focuses on the degree to which not only governmental addressees but also non-governmental affected parties take part in the making of international rules (participation). Non-governmental actors (NGOs) are of utmost importance for bridging between governmental and societal understandings of what is to be seen as a problem and how a problem is to be dealt with. Due to their dependence on voluntary funding by societal actors and the corresponding need to listen closely to public problem perceptions, NGOs are in direct contact with public opinion. They therefore have the potential to facilitate discourse between governmental and societal rationalities and to help avoid situations in which governments must decide between satisfying their domestic constituency or their international partners. They can do so by basically two means (Smith et al. 1997: 73-74):

        A first important function of NGOs is to direct the attention of governmental decision-makers to issues that are high on the public agenda but have not yet been adequately fed into the political machinery. Classical cases are the concern for a sound environment in the 1970s, for human rights in the late 1970s and the 1980s and for social and ecological standards for international trade in the 1990s. All of these issues had no strong international lobbies and were by and large neglected in international institutions until NGOs took them up and forced governments to take them seriously.

        A second function of NGOs is to improve the content of international regulations by bringing their expertise to intergovernmental politics. Because intergovernmental politics is only too often dominated by diplomacy and the search for mutually acceptable solutions without taken the content of agreed upon regulations too seriously, NGOs can provide an important corrective. They lobby the international media, provide data on pressing problems and options to deal with, and act as critics if the results of intergovernmental bargaining fall short of significantly reducing real-world problems. They furthermore are no longer the kind of activists who are strong on conviction but poor on expertise. NGOs like Greenpeace, Amnesty International, Human Rights Watch or Medicines Sans Frontier today have an expertise that is hardly matched by most governments. They are therefore not only competing with states for influence but are most important partners for collective problem-solving (Reinicke 1998: 220).

NGOs, however, do not only have a constructive potential but can also negatively affect the prospects of effective postnational governance. If they are not either directly integrated in international policy-making and/or if their concerns are disregarded, they are likely to mobilise the media or public protest and foster political opposition with the effect of shedding serious doubt on the legitimacy of postnational governance. Especially the WTO has recently been harshly criticised for its non-participatory structure. In a statement authored by 1448 NGOs from 89 countries, a large non-governmental coalition (among them Oxfam, the BUND, Friends of the Earth and Germanwatch) expressed its deep concern with the non-participatory structure of the WTO and its effects on democratic governance. [4] Because the rules and procedures of the WTO are viewed as �undemocratic, intransparent and non-accountable�, any further extension of the WTO�s competencies is rejected and demands for a fundamental reform �with civil society's full participation� are raised. In the same vain, sixty NGOs (among them Greenpeace International, Oxfam, Friends of the Earth, World Wide Fund for Nature) authored in 1999 a �Joint-NGO General Statement� which demanded the inclusion of an international parliamentary chamber and the integration of the European Parliament. [5] To be sure, the potential of NGOs to directly oppose intergovernmental policies is often limited and countered by efforts of other NGOs who argue for quite the opposite. The violent protests of Seattle, Goeteborg and Genoa, however, should be taken seriously as giving expression to a widely held concern that postnational governance must not escape democratic demands for participation and representation if it the public perception of the legitimacy of postnational governance is not to suffer.

(b) Deliberation and Legalisation

Although a high degree of representation of affected parties is an important condition for the generation of successful deliberation, it is by no means a sufficient one. Already without the participation of NGOs, postnational political processes have to cope with a multiplicity of diverging interests and preferences, struggle to find collectively acceptable problem-solving philosophies and are permanently in danger of failing to achieve any results at all. It seems fair to assume therefore that a high degree of representation only translates into successful deliberation if it is accompanied by provisions which structure the discourse, help a social group to cope with its diversity and to make meaningful discourse possible.

One way of reacting to the problem is to take the insight seriously that modern societies have learned to cope with their increasing complexity by developing a new role for legal rules. While traditionally law acted as an instrument for realising governmental objectives by listing pre- and proscriptions for societal actors, much of modern law must be understood as an instrument which aims at enabling complex systems to engage in self-governance (Teubner/Willke 1984). [6] Modern law aims at structuring societal discourses by establishing needs of justification, distinguishing between good and bad reasons fur justifying actions and thereby forcing actors to enter a discourse about the appropriateness of behaviour. Its basic aim is not to identify the specific content of the common good via assuming a superior knowledge of a governing actor but to provide a normative support structure for self-governance. [7]

It is not easy, however, to apply the concept of law to postnational politics. Traditionally, legal norms are defined by their authorisation on the part of a governing agent who uses its monopoly of power for guaranteeing compliance (e.g. Kelsen 1966). In postnational settings, no such monopoly of power exists. Does that mean that legalisation is a strategy that is suited for domestic politics only? A more promising alternative for conceptualising legal norms is to follow recent efforts to develop a gradualist understanding of law (Abbott et al. 2000). In such a perspective, legal norms can be distinguished from mere social norms by the degree to which rule addressees agree on institutional means for eliciting compliance with them. It is especially three institutional dimensions which are important and which refer to the monitoring of rule application, the legal effect of rules and the legal consequences in case of non-compliance. [8] All three dimensions must be understood as being open to a great variant of different forms with differing degrees of intensity: Monitoring can vary from relying in the honesty of contracting parties to the establishment of reporting obligations (human rights regimes and WTO), and finally to establishment of a central institution with encompassing resources to directly control compliance and even to conduct on-the-spot checks (as in the EU). Legal effect can likewise vary from a mere agreement (non-proliferation treaty) to the setting up of international dispute settlement bodies (WTO) and can also mean giving direct effect to international rules and granting standing for individuals (EU). Legal consequences finally can take the form of announcing non-compliant behaviour (shaming), entail the authorisation of symmetrical retaliation on the part of a third party (as in the WTO) or allow for the imposition of lump sums or penalty payments (as in the EU).

Taken together, representation and legalisation must be viewed as important institutional requirements for facilitating deliberation. Broad representation widens the scope of participants in political discourses, enables stakeholders to pursue their interests by means of constructive discourse and provides incentives to abstain from extralegal political action. Legalisation is a necessary instrument to structure the discourse and to provide normative criteria against which preferences can be assessed. It finally formalises interaction and provides for an institutional frame that reduces problems of free-riding, settles disputes about the adequacy of individual action and provides (dis)incentives for (non)compliance.

3.4. Deliberation, Sovereignty and Accountability

Although states can be assumed to have both an interest in the facilitation of deliberation (under the conditions specified above) and the means to do so, the practice of international politics still has more significant elements of bargaining than the analysis above predicts. The ubiquity of non-deliberative political confrontations in the WTO, in the Human Rights Commission of the United Nations or at Treaty reforming IGCs of the EU are telling cases, which even the most sophisticated analysis would have serious difficulties to dispute. A most important reason for this gap between what should be the case and what can be observed, is the fact that deliberation does not come without a price. Quite on the contrary, it necessitates from governments and societies alike to accept that their preferences are not intrinsically legitimate � even if they are the products of domestic democratic procedures. Deliberation relies on a well-established normative hierarchy. Although deliberation is unlikely to happen under conditions of material hierarchy, which is when one actor commands the resources to act as benevolent or coercive hegemon, a legal or normative hierarchy is a necessary condition. Otherwise it is impossible to test the normative validity of an argument, which is the act of testing the coherence of an argumentative act. As soon as they are formulated at the international level, individual preferences are only subjective claims of coherence with consented basic norms and may be rejected by the international community if they fail to withstand discursive scrutiny. By implication, neither the idea of sovereignty that resides in a (national) parliament nor that of sovereignty of a (national) people is easily compatible with postnational deliberation. Because sovereignty can in a multi-level context only be exercised in co-ordination with non-national political entities, it presupposes an understanding of sovereignty that is divided among national publics, parliaments and international institutions (cf. Pernice 1999).

Of course, states and societies cannot be expected to be ready for implementing the necessary adaptations with the press of a button. A state-centred understanding of sovereignty lies at the heart of statehood and defines in large parts of the democratic world its identity. It therefore is only realistic to assume that the implementation of the necessary constitutional adaptations will only come about as the product of a long-term learning process that necessitates that both governments and societies cherish the promises of a postnational polity more than they fear its costs. That this exercise is far from automatic and smooth is underlined by the recent wave of protests against international governance, the strong isolationist tendencies in the U.S. under the current Bush administration [9] and the periodic popping up of anti-EU rhetoric in populist parties in Europe. Overcoming fears of a democratic deficit and � even more so - replicating the European experience of a pooling of sovereignties on a larger scale, will very much depend on the degree to which international institutions are able to establish that kind of general trust on which national democratic governance rests. Although it is difficult to formulate easy recipes for dealing with complex issues such as accountability in non-hierarchical multi-level systems (cf. Slaughter 2001), it seems obvious that any significant progress presupposes a huge leap towards increased transparency. It might seem banal to point to the relation between the ability to control and the readiness to trust but it nevertheless is worth mentioning: Only by giving the people and the media the chance to directly observe what delegates are doing and what positions they formulate for what reasons, can the people be expected to trust in governance. A reversal of the still dominant tradition of closed-door negotiations and the opening up of institutions for public and media scrutiny therefore is a major precondition for effective postnational governance.


4. On the legitimacy of postnational governance

Whilst deliberative procedures carry the promise to transform international anarchy into a transnational discourse, it can hardly be overlooked that any progress towards more postnational governance meets with a number of serious criticisms. It has been pointed out that the internationalisation of politics threatens to strengthen the policy discretion of the executives, that international bargaining is superimposing democratic deliberation, that national Parliaments are increasingly bypassed and that public oversight is loosing in relevance (to name just the most important concerns). In sum, it is feared that the costs of an improved international problem-solving capacity are largely paid in the currency of the democratic content of politics (among many cf. Scharpf 1999, Greven 2000, Slaughter 2001). Against this background, postnational governance seems to be a normatively ambivalent undertaking, torn between the need to re-establish problem-solving capacity and the fear of a reduced democratic content of politics (Dahl 1994).

It is difficult, however, to assess the force of those concerns. Applying normative standards always presupposes to distinguish among different options and to chose the one which is adequate for its object of concern (cf. Joerges 2000). If, for example, intergovernmentalism is right, and governance beyond the state basically follows the lines of international co-operation with the purpose of identifying overlapping preferences, reducing transaction costs and maximising collective utility (Keohane 1983), most normative concerns are highly exaggerated. Likewise, if we follow the proposal of Majone (1994) and treat postnational governance as being merely a kind of outsourced technical agency with the task of setting standards for the conduct of international trade in goods and services, we will have little problems in justifying it, apart from demanding even more insulation of policy making from the partisan concerns of majoritarian decision-making and to reject any demands for the integration of a redistributive element (Majone 1998). If however, early functionalists are right, and postnational governance follows the logic of ever closer integration (Haas 1964), we might be far more sceptical, demand the integration of a full-blown parliament and ask for institutional mechanisms to establish a system of checks and balances among the legislative and the executive branch of governance (Mancini 1998). As becomes clear, any assessment of the validity of normative concerns depends on the identification of an adequate normative standard, which in turn presupposes to have an analytical concept of postnational governance.

This paper does not side with any of the camps mentioned but has employed a fourth perspective according to which the postnational constellation both implies the danger of a reduced democratic content of politics and the chance to promote a new political structure which is more effective, efficient and leads to higher quality outcomes. The corresponding recipe for dealing with the postnational constellation focuses on the adaptation of formerly nation-state restricted democratic procedures to the changing socio-economic and political realities. It offers a third way of conceptualising political order beyond hierarchy and anarchy that centres on accommodating the different democratic systems of its member states by means of discourse without aiming to replicate the national state on a European or international level. Following a deliberative-heterarchical understanding of postnational governance, effective and legitimate policy making demand very much the same answer. Both can be promoted by a set of procedures which bind the three levels of governance into one discursive structure: At the international level, a high degree of legalisation is necessary to provide an institutional frame with binding decision-making and �application procedures that allows for non-coercive enforcement. At the transnational level, the integration of private interest groups is required to give voice to domestic concerns and provide for a critical reflection of predominant problem-solving philosophies. This participation is crucial in order to relieve the tension between domestic and intergovernmental rationalities and to generate social acceptance for international regulations. Therefore, what counts in the process of shaping post-national governance is the search for a complex set of procedures that can bring about a continuous discursive process among international organisations, governmental addressees and affected domestic parties on collectively acceptable regulations and the modalities of their application. Transparent multi-level deliberation is the first best means to realise that objective.

One may question whether such a political structure deserves the label �democracy�. Maybe not. Maybe it only takes issue with legitimate postnational governance rather than with democratic postnational governance (cf. Joerges 2000). That, however, must not be a weakness of the approach but can be defended for the reason that it is not yet clear how some of the crucial preconditions of a democratic polity can be realised in multinational multi-level contexts. Demands for a full-blown European or even global democracy must take the concern seriously that a full blown democracy demands the existence of a living public sphere in which positions and preferences are exchanged and mutual learning takes place (Rawls 1997). That, however, will be difficult to realise in the foreseeable future beyond the state. A deliberative heterarchical approach to postnational governance therefore takes the principle of subsidiarity seriously by abstaining from any unnecessary relocation of authority and leaving the democratic nation-state as intact as justifiable.

The idea of a cross-border and cross-level political discourse, finally, does not pretend to lead to a perfect world in which all normative problems are solved. Asymmetrical power distributions in terms of material, normative and cognitive ressources will even under conditions of deliberation remain important elements of the empirical world. As readers will know, making good arguments necessitates the investment of ressources. The promise of deliberation therefore may be largely confined to those who can afford the investment, which basically implies a restriction of the attractiveness of the concept to intra-OECD relation. For making it a tool applicable on a larger scale, deliberation needs to go hand in hand with redistributive elements, aiming at spreading expertise and empowering actors to participate in communicative settings. Contributing to this process, finally, is not only in the interest of those who remain unheard today. If it is true that the public perception of the legitimacy of postnational governance becomes an increasingly important factor for its effectiveness, even strong states will have incentives to transform power dominated diplomacy into transparent, fair and rule-oriented discourses. This might sound visionary, but what is the alternative?




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[1] ������������ For an application of the concept of heterarchy to legal theorising cf. Ladeur (1999).

[2] ������������ See Elster (1998), Habermas (1992), Risse (2000).

[3] ��������������� Mitteilung der Kommission �ber die Auswirkungen des Urteils des EuGH v. 20.2.1979 in der Rs. 120/78 (�Cassis de Dijon�), ABl. C 256/1980, 2 f.

[4] ��������������� Statement From Members of International Civil Society Opposing a Millenium Round or a New Round of Comprehensive Trade Negotiations, GPFRAM10.HTM

[5] ������������ �The Case For Increased Scrutiny By The European Parliament�

[6] ������������ In the words of J�rgen Habermas (1992: 78, own translation):"The law acts as it were a transformer, ensuring in the first place that the network of socially integrative pan-societal communication does not break down. It is only in the language of law that normatively meaningful messages can circulate throughout society."

[7] ������������ Even if without specified clear pre- and proscriptions, however, legally structured discourses may not be misperceived as non-binding forms of interaction Because they establish a certain standard of rationality and distinguish between good and bad arguments, they function as disciplinatory mechanisms which exclude all those ways of arguing and acting which cannot be coherently justified in terms of the codified rationality (Przeworski 1998).

[8] ������������ For a more elaborated discussion of the three dimensions cf. Neyer/Wolf (2002).

[9] ������������ A telling example for the fears that the notion of global governance evokes among some politicians some can be enjoyed at