Democracy in contested territory: on the legitimacy of global legal pluralism

ABSTRACT

The proliferation of law-making beyond the nation-state has produced a landscape of thoroughgoing ‘global legal pluralism’ (GLP), in which legal regimes overlap in the same social field. Individuals find themselves under the rule of multiple and conflicting regimes, some of which have no ties of accountability to democratic constituencies. GLP thus rouses a perplexing picture of globalization as it untethers law-makers from jurisdictions, and governance from constituencies. Is democratic legitimation possible within the tangled spaces of governance that characterize the post-national constellation? I argue that yes, democracy is possible in a legally plural world. Specifically, GLP is compatible with democratic principles when restricted by a territorial principle, which limits legal pluralism to authorities with the potential to be legitimated by territorial constituencies, and this is because territorial enmeshment is politically fundamental. However, I also argue that the reconciliation of overlapping rule and democracy requires rethinking territory as a non-sovereign jurisdiction, i.e. territories must be conceived as overlapping and contested. This conception of territory includes not only states, but also municipalities, supranational federations, and other possible territorial forms. The territorial principle should therefore be understood in line with cosmopolitan calls to theorize democracy beyond the sovereign nation-state.

KEYWORDS:

• Global legal pluralism
• territory
• democracy
• sovereignty
• cosmopolitanism
• Arendt
• post-national constellation

Acknowledgments

For their comments and feedback, I would like to thank Seyla Benhabib, Paulina Ochoa-Espejo, Andrew March, Eyal Benvenisti, Amy Allen, Jakob Huber, Michael Hardt, Lucia Rafanelli, Annie Stilz, Sam Bagg, Alison McQueen, Patchen Markell, Jennifer Pitts, and Emma Mackinnon, and Danielle Charette, as well as participants of the 2014 Critical Theory Roundtable, the 2015 Duke Graduate Conference in Political Theory, the 2016 Princeton Graduate Conference in Political Theory, the University Chicago Political Theory Workshop, and the members of the Yale Women’s Political Theory Writing Group, especially Adom Getachew and Erin Pineda.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. This example was brought to my attention in a masterclass given by Katharina Pistor at Northwestern’s Global Law and Capitalism Research Group in May 2017. See also Pistor (2013).

2. ‘The Peace of Westphalia did not establish the “Westphalian system” based on the sovereign state. Instead, it confirmed and perfected something else: a system of mutual relations among autonomous political units that was precisely not based on the concept of sovereignty’ (Osiander, 2001, p. 270). The notion of sovereignty originated in French and English debates over religious and civil conflict. The history of sovereignty belongs to Bodin and Hobbes, not to the imperial-federal German principalities of Westphalia.

3. For other examples, see the literature on cosmopolitanism from below, e.g. Ingram (2013), Rajagopal (2003), and Rodriguez-Garavito and De Sousa Santos (2005).

4. On transnational activist networks (TANs), see Keck and Sikkink (1998).

5. I am indebted to Eyal Benvenisti for insights on the topic of accountability.

6. I have left aside domestic and international law, i.e. the laws of war (IHL), international human rights law (IHRL), the Law of the Seas, and jus cogens and erga omnes norms. Laws are used by or bind institutions, but they are not themselves governing institutions. Thus the conflict of laws is a result of (not a component of) GLP.

7. Though TANs, in this view, do not have the legitimacy of public authorities, it is nevertheless possible to develop standards to adjudicate which efforts at foreign influence are unjust, and which might bolster the autonomy of local actors. For such an analysis, see Rafanelli (2018).

8. Recently, Huber (in press) has argued convincingly that the proximity principle does not settle the question of where boundaries ought to lie. The Kantian principle, he argues, cannot be used to justify the formation of particular political communities, but must be understood as a regulative principle which demands that territorial states be outwardly cosmopolitan and internally guided by residency-based citizenship.

9. On the idea that neither the people nor the territory can be a coherent basis for determining the boundaries of the other, see Ochoa-Espejo (2014).

10. See ‘Cities for CEDAW,’ http://citiesforcedaw.org/.

11. The Haitian Centre for Human Rights et al. v. United States, IACHR Case 10.675 (1997). The case was brought to my attention by Gundogdu’s (2015, p. 231) work on migrant rights.

Additional information

Funding

N/A – no grants supported this research

Notes on contributors

Anna Jurkevics

Anna Jurkevics is an assistant professor of political science at the University of British Columbia. She works in the fields of critical theory, democratic theory, and the history of German political thought with special emphasis on themes related to territory, sovereignty, and migration.