The Argument from Transnational Effects II: Establishing Transnational Democracy

• Date: 01 July 2010
• Author: Alexander Somek
• Published date: 01 July 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00514.x

eulj_514375..394

The Argument from Transnational Effects

II: Establishing Transnational Democracy*

Alexander Somek**

Abstract: This article continues with a discussion of what the author calls the argument

from transnational effects. It says that supranational or transnational forms of integra-

tion, in particular market integration, are desirable on account of democracy itself.

National democracies find themselves thereby forced to confront and to internalise the

externalities that they cause for each other. A fortiori, democracy becomes supposedly

emancipated from the confines of the nation state.

This article examines the argument critically at a general level. The situation under

consideration concerns all cases in which, regardless of whether there is movement or not,

the acts of one democracy adversely impact on the interests of others.

The article tries to identify instances where the harm is tied to a failure of representation

in a transnational context and not caught by the harm principle, broadly understood.

In order to calibrate the argument’s scope the article resorts to the principle of univer-

salisation. The guiding intuition is that so long as the act of one democracy is morally

justified on the basis of this principle, the argument from transnational effects does not

apply. Hence the argument is of no avail where the impact of one democracy on another

is perfectly legitimate. This would be the case, for example, when the effects are too

insignificant to require any debate.

Determining the range of legitimate impact is a core question of transnational consti-

tutional law. Any such determination presupposes mutually shared interest definitions.

More often than not, however, the relevant interest definitions underlying universalisation

are debatable. Therefore, it appears to be inevitable, at first glance, to have relations of

transnational interdependency matched by transnational democratic processes.

The article then goes on to identify three different types of universalitation with refer-

ence to what can be regarded as their respective anchor. Simple universalisation is based

upon shared interest definitions. Reflexive universalisation involves common views of

* Earlier versions of this article were presented at a conference at the Berlin Institute for Advanced Study,

at an in-house faculty workshop at the University of Iowa and as part of the International Legal Theory

Colloquium at New York University Law School. I owe a debt of gratitude to colleagues who provided

me with critical feedback, in particular to Arthur Bonfield, Armin von Bogdandy, Ann Estin, Herbert

Hovenkamp, Benedict Kingsbury, Mattias Kumm, Todd E. Pettys and Joseph Weiler. I should also like

to acknowledge how much I benefited from having been part of a group of ‘constitutionalists’ that was

resident at the Berlin Institute during the academic year of 2007/08. Attending a weekly conversation with

Petra Dobner, Dieter Grimm, Bogdan Iancu, Martin Loughlin, Fritz W. Scharpf, Gunther Teubner and

Rainer Wahl has been highly conducive to the clarification of my constitutional ideas.

** University of Iowa, College of Law.

European Law Journal, Vol. 16, No. 4, July 2010, pp. 375–394.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

oneself (and others). Self-transcending universalisation is grounded in the desire to live in

a free society.

Reflexive universalisation requires to extend mutual sympathy. From this perspective,

transnational democratic processes are tantamount to nation-building. However, one

would commit a sentimentalist fallacy if one were to conclude that mutual sympathy in and

of itself engenders an expansion of mutual responsibility.

The article argues that with regard to the third type of universalisation the institution-

alisation of transnational democratic procedures cannot be justified. It would threaten to

undermine various conceptions of a free society. It is argued that for the sake of the

realisation of equal citizenship the argument from transnational effects actually needs to

endorse the existence of bounded democratic communities. Unbounded transnational

democracy would exercise an adverse effect on citizenship.

It also turns out that the argument from transnational effects, in its uncorrected form,

remains haunted by the dilemma that the type of democracy that is envisaged by it

becomes easily absorbed by administrative processes.

The article concludes that the argument from transnational effects, correctly under-

stood, has a more modest import than its proponents would have us believe. Rather than

supporting the release of democracy from its national bounds, it helps to explain why the

co-existence of bounded democratic polities remains essential to equal citizenship. More

forceful versions of transnational integration graft onto political societies elements that

are not genuinely democratic and strangely reminiscent of different forms of rule. These

are forms of rule that Aristotle would not have called ‘political’, for they do not involve the

exercise of power by equals over equals.

I The Argument Restated

In the previous article, the exploration of the argument from transnational effects has

mainly focused on the substantive economic due process situation, on the one hand,

and the Bolkestein situation, on the other. In the first situation, economic actors wish

to import into their country of residence laws from other national jurisdictions whose

application is more favourable to their doings. I argued that they cannot avail them-

selves of the support of the argument from transnational effects. In the Bolkestein

situation, by contrast, economic actors basically wish to export their laws to the

country in which they are going to do business. They are also not in a position to claim

the argument’s support. This is not a surprising result. I surmise that most of us would

have been intuitively inclined to take the revised virtual representation argument for

granted and to accept that whoever initiates encounters with a foreign democracy, for

example, by moving a good into it, has reason to respect its laws.

But these conclusions by no means establish that the argument is devoid of a proper

sphere of application. Maybe I have in the first article only explored marginal cases,

and the paradigmatic situation envisaged by the argument from transnational effects is

altogether different.

Here is a statement of the argument by one of its proponents:1

Under conditions of complex interdependencies, a major shortcoming of the democratic nation-state is

the negligence of its external effects. Individual state actions [a]ffect other states and societies without

1Neyer in C. Joerges and J. Neyer, ‘“Deliberative Supranationalism” Revisited’, (2006) 2006/20 EUI

Working Paper Law 2.

European Law Journal Volume 16

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