Participatory transnational governance

In textbooks and in theory, law is a product of democratic procedures. In reality, however, the place of law production has moved to a significant degree from the domestic sphere into an emerging domain of supranational and international institutions, bodies, and organizations, public or private, which constitute and enforce “global law without a state” (G. Teubner). These developments appear to undermine the very foundations of democratic theory and practice. A global democracy is not in sight. But if we still take the concept of law seriously, and, with it, the normative assumption that norms need to be legitimised in order to be called ‘law’, then it is worth examining the possible functional equivalents to the norm-generating setting of the nation-state: participatory arrangements ensuring the involvement of civil society actors, stakeholders, and the public, in the arguing, bargaining, and reasoning processes of transnational regulation, procedural rights safeguarding these procedural positions, and courts
or court-like institutions that flank these arrangements. These potential functional equivalents – as elements of a deliberative constitutionalism - do not replace the democratic process necessary for a production of legitimate law, but they might narrow the legitimacy gap between the ongoing process of transnational social regulation and democratic constituencies.This essay focuses on legal patterns of civil society participation in transnational regulation and asks whether the EU, as the most advanced supranational entity with an evolving legal framework in the fields of transparency, accountability, and participation, can be taken as a positive model for global law production.

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