Abstract
Keywords
Introduction
Let us imagine the following case: Sofia suffers from a serious illness. Unfortunately, the medicine she needs is not marketed in her country because the national pharmaceutical regulatory agency has banned it on the basis of a recommendation that it developed jointly with several other domestic regulatory agencies (DRAs) and actors from other states. Given the involvement of foreign actors, Sofia might ask: How can foreign regulatory agencies be involved in framing recommendations pertaining to domestic directives? How can a state drug regulatory agency base its decision on such a recommendation? In other words, why should we accept decisions made by unelected actors acting in conjunction with others who do not pertain to our own country?
Although DRAs operate differently in the political context of each nation and although there is no single model for them (Bianculli et al., 2013), they may be identified through three elements: (i) their independence from citizens, parliaments, and governments; (ii) sufficient powers to execute their functions; and (iii) expert personnel in their specific areas. These features have led to justify the delegation of power to DRAs, and thus their legitimacy, on the basis of credibility, independence, or expertise (Majone, 1996). Arguments of various kinds and, from different disciplines, are extended to defend the democratic legitimacy of DRAs (Pettit, 2010b; Rosanvallon, 2011; Tucker, 2018) or simply, their very legitimacy (see Maggetti, 2010). However, the democratic deficit of DRAs has increased with the transformations brought about by globalization and with new forms of global governance. Although Sofia’s questions are not surprising, they do not yet have satisfactory answers. Therefore, as a partial answer to Sophia’s concerns, I contend that DRAs have expanded their role beyond domestic borders. They represent nodes within a large network of global actors. They are thus global-domestic actors.
This global-domestic character is partially recognized by the literature. Scholars from various disciplines have highlighted the existence of a space, which may be termed global-domestic, that is neither purely international nor purely domestic (Cassese, 2005; Keohane and Nye, 1973; Kingsbury et al., 2005; Krisch, 2017; Raustiala, 2002; Slaughter, 2004). International relations theoreticians use the term intermestic to describe the intersection between the domestic and the international (Rosenau, 2002) and have understood the “global” character of DRAs as a sign of sovereignty transformations. This dimension is also recognized by political theorists (Bohman, 2007; Fraser, 2009; Held et al., 1999), philosophers of international law (Besson and Tasioulas, 2010), and some sociologists (Sassen, 2003). More specifically, network governance theory has recognized that regulatory networks go beyond states (Kohler-Koch & Eising, 1999; Reinicke, 1998).However, the implications of the global-domestic dimension have not been sufficiently explored, particularly when asking about the political legitimacy of concrete institutions, like DRAs. The well-established literature on the legitimacy of DRAs does not explicitly acknowledge this character. Some network governance theorists focus primarily on assessing the legitimacy of the network as a whole, and there is not yet sufficient discussion about its democratic legitimacy (Sørensen and Torfing, 2007). In this regard, this paper enriches the normative discourse surrounding the legitimacy of DRAs, a subject that remains relatively underexplored in existing literature, particularly when examined through the framework of normative democratic theories. 1
Similarly, the concern with legitimacy in international relations theory and philosophy has focused primarily on purely international actors. And although recent contributions on liquid authority have sought to correct this deficit by suggesting that global governance entails liquid forms of authority with normative implications in terms of political legitimacy, I do not share its notion of authority or its conception of political legitimacy, since, as I will argue, the crucial point about the global-domestic dimension lies in the interconnected levels of authority and not in the degree of binding nature of the norms, as proponents of liquid authority claim. Moreover, while liquid authority seems to apply to institutions in general, this paper focuses specifically on DRAs. In this sense, I do not attempt to contribute to the theory of legitimacy in general, but to the theory of legitimacy of unelected regulatory institutions such as DRAs. 2
Thus, it is noteworthy that none of these disciplines has provided a sufficient answer to the legitimacy of DRAs as global-domestic actors. This gap in the literature may be due to the fact that answering this question is not a matter of one single discipline, but of several: public administration theory, regulation theory, international relations theory, and legitimacy theory are intertwined in this question. In this sense, I also intend to contribute to the dialogue between disciplines, although I understand that this is a question that should be of interest primarily to international theory, since the existence of global-domestic actors is another sign of the profound global transformations currently underway. However, as the fundamental question of this paper concerns the sources of global legitimacy of DRAs, this is also an issue of particular interest for the literature on the legitimacy of international institutions. From the normative perspective of democratic legitimacy, my aim is not to discuss the legitimacy of DRAs from the national perspective, as has in fact usually been addressed in the literature, but rather to shed light on the debate about why we should consider democratic these institutions that have acquired a different character, which I call global-domestic.
In this respect, I have two objectives: first, to show that DRAs are no longer purely domestic authorities and second, to issue a warning about the theoretical implications of this transformation. I first demonstrate how many DRAs have intensified the use of international cooperation mechanisms and how, increasingly, their decisions are exerting a global impact. I claim that the use of these mechanisms by DRAs and the global effects of their use give them a global-domestic nature that poses legitimacy problems different from those recognized at the purely domestic level. Second, I argue that it is not enough to evaluate this phenomenon with the current perspectives of legitimacy, so I claim that a new perspective of political legitimacy is required to assess GRAs’ global-domestic institutional dimension.
My purpose, then, is to discuss the global legitimacy of DRAs. In examining the legitimacy problems of DRAs, I note the difficulty of simply taking the answers that come from international legitimacy. This is mainly because the existing literature does not take into account the concept of what I call plural authority, where domestic and international spheres overlap. As a result, conventional criteria of legitimacy fall short. Therefore, I propose the need to develop an alternative normative perspective rooted in networks. Such an approach places importance on the interactions between different actors, and as I will show, it is these interactions between the domestic and global realms that shape the authority of DRAs. While this paper lays the basis for the network perspective on legitimacy, further research is warranted to delve deeper into this framework.
This article is organized as follows: First, I explain why the global dimension of DRAs emerged and characterize the global roles played by these institutions, in order to elucidate why they should be called global-domestic regulatory agencies (GDRAs). Second, I contend that the current perspectives pertaining to the assessment of the political legitimacy of DRAs are insufficient. And third, I give a few general traces of what I call a networked perspective of political legitimacy.
The global dimension of DRAs
The global dimension of DRAs does not emerge spontaneously. Instead, certain phenomena contribute to its emergence: the proliferation of DRAs, globalization and interdependence, and transnational regulatory governance.
First, almost all countries that maintain a market economy have instituted, to a greater or lesser extent, regulatory policies and institutions (Fernández-i-Marín and Jordana, 2015; Jordana, 2011; Levi-Faur, 2005), leading to the proliferation of DRAs. Empirical studies conducted across 48 countries indicate the exponential growth of DRAs (Jordana et al., 2011: 1344). Second, globalization has blurred the boundaries between levels of authority, transforming domestic authority without eliminating it. Hence the separation between the domestic and the non-domestic becomes difficult, which, in turn, alters the concept of authority that was once fully aligned with that of the nation-state (Held et al., 1999). In addition, globalization also implies the existence of overlapping communities of fate (Archibugi and Held, 1995; Held, 1995). In other words, global risks are now part of everyday life, and nations are more interdependent than they think. Third, the emergence of global and transnational regulatory governance suggests that domestic and international policies have become more closely intertwined. The very notion of global governance as “(. . .) the manner in which global actors, ranging from states to MNCs and civil society organizations, cooperate formally and informally on global collective action problems (. . .)” (Held, 2015: 415) elucidates that non-domestic and non-governmental actors exercise political authority over states and their citizens. Governance levels can be understood both vertically and horizontally, and each policy area develops its own mode of governance (de Búrca et al., 2013; Koenig-Archibugi and Zürn, 2006). In this sense, regulatory decision-making processes are increasingly developed through transnational means. Transnational regulation is a mode of governance responsible for the structuring, guiding, and controlling of social and human activities, as well as interactions “beyond, across and within national territories” (Djelic and Sahlin-Andersson, 2006: 6). Multiple actors are involved in the creation, monitoring, and implementation of rules in such situations, explaining recent efforts to unravel the typology of rule-makers and to establish new types of roles such as the functioning of rule-takers and rule-intermediaries (Abbott et al., 2017; Jordana, 2017).
While the proliferation of DRAs, globalization and interdependence, and transnational regulatory governance explain how the
Second, regarding the intensification of the global cooperation of DRAs, it is important to recognize the variety of the global cooperation mechanisms in which they are involved. Thanks to these mechanisms, DRAs can interact globally. The mechanism of cooperation that is most recognized is the transgovernmental one (Slaughter, 2004). This type of collaboration occurs, for example, in banking supervision: “(. . .) in the absence of international treaties and institutions, national regulators have created informal networks to exchange ideas, coordinate their enforcement efforts, and negotiate common standards” (Verdier, 2009: 114). Other examples could be the International Organization of Securities Commissions (IOSCO) or the International Competition Network (ICN). However, there also exist other frameworks for cooperation (OECD, 2013).
This phenomenon is explained by the need for cooperation in an interdependent world. As scholars of institutionalism indicate, actors decide to cooperate to reduce information asymmetries and to reduce transaction costs (Keohane, 2005). In addition, international regimes “reduce incentives to cheat, enhance the value of reputation, establish ‘legitimate standards of behavior for states to follow,’ (Keohane pp. 244–245) and facilitate monitoring” (Slaughter, 1995: 725). Moreover, uncertainty and the new circumstances of science do not seem to reduce cooperation; quite the contrary. Thus, cooperation is deemed necessary not only because climate change affects everyone, but also because no one has the resources or capacities to find a satisfactory answer to this problem. In this sense, as some scholars have recognized, DRAs have sufficient reason to cooperate with others in making policies at the domestic, European, or international level (Maggetti, 2009).
Mapping the roles of GDRAs
The emergence and robustness of the global dimensions of DRAs enable them to be viewed as GDRAs. This label is not merely rhetorical. I define the features of their global-domestic character because important theoretical consequences derive from it. These features can be identified by observing the roles played by DRAs when they interact globally. I demonstrate that by virtue of global interactions, GDRAs function in diverse global roles. A characterization of these roles can be based on three
The first criterion allows the perspective that GDRA interactions occur in two ways:
Taken as a whole, these four roles allow the conceptualization of the global-domestic character of the GDRAs. The distinction between these roles is merely analytical. It is not necessary for a GDRA to perform all four roles. Whether a GDRA plays all four roles or just some of them depends on the intensity of its global-domestic character and is not a question of the existence of this character. These roles are shown in the following diagram:
Indirect global interaction
This type of interaction is linked to the global effects of regulations either because GDRAs receive or because they produce the impact. Thus, GDRAs can be recipients of non-binding, non-domestic norms, as well as producers of domestic decisions that exert global impact. A long distance separates GDRAs and other state or rule-makers in both of these types of interaction. This is either because the regulation is produced individually by a GDRA or because there is no collaborative action between the particular GDRA and the non-domestic actor who produces it. The roles are briefly outlined below.
GDRAs can be producers of domestic regulations that exert global impact
Global interdependence is one of the reasons why the regulation of one jurisdiction can have an effect on another. A state regulation of trade in goods, for example, may impact other jurisdictions, creating different costs. This effect includes spillover consequences, by virtue of which the regulation of one country substantially affects the well-being of the population or living beings of other nations (Marisam, 2015: 1917). Cases in which GDRAs have issued regulations prohibiting the use of substances and materials that can transmit diseases or for the protection of some animal species may be cited to elucidate this point. These rules form the basis for denying sanitary permits, which in turn imply restrictions on the importation of certain products. Thus, although national regulators “can only regulate conduct that falls within their jurisdiction” (Craig, 2016: 157), it does not follow that the impact of their regulations remains confined to their own jurisdiction. The promoters of a global administrative law warned of this phenomenon and they viewed GDRAs as a type of a distributed administration (Kingsbury et al., 2005).
GDRAs can be recipients of non-domestic non-binding decisions
They receive regulations produced outside their state that are to be adopted in their own state. Examples include a domestic central bank that implements the recommendations of the Basel Accords without being a party to them, a GDRA in charge of food safety that issues a decision based on the Codex Alimentarius, and a GDRA that adopts the standards of the International Council for Harmonization of Technical Requirements for Pharmaceuticals for Human Use (ICH) in its own pharmacovigilance guidelines.
Usually, such interaction uses soft law instruments. International organizations, transnational networks, European agencies, and private actors produce soft law. Soft law instruments can also result as the product of interactions among international organizations that deal with similar areas or themes. An example of this is the Inter-Agency Cluster on Trade and Productive Capacity which operates within the UN system or the Inter-organization Program for the Sound Management of Chemicals (IOMC). These innovative forms of coordination produce joint standards such as the joint FAO/WHO Food Standards Program developed between the Codex Alimentarius Commission and the ISO. If one considers that “most countries belong to 50 or more international organizations” (OECD, 2013: 30), it may be understood that the reception of soft law instruments is very common. Although the implementation of such soft laws is voluntary, the obligation to report on the status of their implementation is usually established. It cannot be ignored, therefore, that moral and political pressure drive the execution of such regulations.
GDRAs adopt such rules for different reasons: to increase their credibility, to improve the possibilities of access to international markets, or to improve their internal practices in the light of what are considered international best practices. Likewise, scholars have highlighted that the existence of a review panel in the organizational structure of the network and a high degree of interdependence in the area of policy that is regulated count among the factors that favor the domestic adoption of standards produced in regulatory networks (Maggetti and Gilardi, 2014: 1306).
Direct global interaction
Direct global interaction implies the greater degree of closeness of the GDRAs to non-domestic and non-governmental rule-makers. By virtue of this proximity, GDRAs can participate in the making of non-domestic rules or can become implementers of non-domestic binding decisions.
GDRAs can participate in the creation of non-domestic rules
Such engagement may be observed when GDRAs participate (i) in transnational networks and European agencies, (ii) in the negotiation of treaties or conventions, and (iii) in regulatory coordination agreements.
In the first place, GDRAs are part of transgovernmental or transnational regulatory networks (TRN), and they participate in the regulatory decision-making process within such a framework. This form of participation allows GDRAs to harmonize regulatory standards and practices, to solve transnational regulatory problems caused by the operation of multinational companies, and to coordinate regulatory policies (Stewart, 2005: 65).
The classic example of a TRN is the Basel Committee on Banking Supervision (BCBS), but there are many others: the International Competition Network, the European Public Administration Network, the International Organization of Securities Commission (IOSCO), the International Consumer Protection and Enforcement Network, the International Medical Device Regulators Forum, the ICH, and so on. It must be emphasized that these networks generate informal interactions between regulatory agents of different states and that such cooperation generally occurs without the supervision of foreign ministers (OECD, 2013: 24). Usually, interactions within a TRN are expressed through memoranda of understanding that do not require parliamentary approval. Regulatory governance theorists believe that this type of global interaction is linked to one of the most prominent features of DRAs: their autonomy (Bach and Newman, 2014; Bach et al., 2015; Bianculli et al., 2015; Groenleer and Gabbi, 2013; Ruffing, 2014). Independent regulators, despite seeing themselves as “agents,” have their own preferences when interacting globally. On the other hand, GDRAs can be part of vertical networks. This is especially the case in the European Union, where European regulatory agencies are composed of GDRAs, along with other institutions (Christensen and Nielsen, 2010; Coen and Thatcher, 2008; Dehousse, 1997; Levi-Faur, 2011). Most of them lack regulatory powers, but they play a role (Maggetti and Gilardi, 2014). However, it should be noted that the GDRAs have resisted the creation of stronger European agencies (Lodge, 2005), and for this reason, their creation is understood as an “agencification of networks” (Levi-Faur, 2011). What is interesting for my argument, however, is precisely the weakness of the European agencies, since it shows the power of the GDRAs as individual actors and the relevance of their global-domestic dimension. If we scrutinize the members of some of these European agencies, we can see that, individually, instead of as a whole, GDRAs continue to play a role: they are the ones who coordinate among themselves to exchange information, to produce expert knowledge, and to harmonize standards through the production of soft law instruments (Maggetti and Gilardi, 2014: 1296–1297).
Second, DRAs can be participants in the negotiations pertaining to international treaties or conventions. Due to their technical expertise, GDRAs are often relevant actors when formal and binding treaties, conventions, or protocols are negotiated. For example, the leadership assumed by the EPA is recognized in the global agreement on the progressive reduction of emissions of hydrofluorocarbons that are well known for their harmful effects on the ozone layer. It is relevant, in this context, that the GDRAs, and not the states as a whole, are the ones who participate in the negotiation processes. One might think that despite their participation, the treaty will ultimately have to be ratified by national parliaments whose legitimacy cannot be questioned because GDRAs are thus only technical support. However, it is not only the final instrument that is of interest; it is also relevant whether a GDRA played a role in influencing the construction of such international norms.
Third, GDRAs participate in regulatory cooperation councils and engage in regulatory coordination agreements. Although there are not many cases of the former, those that do exist represent a strong trend toward harmonization and the mutual recognition of domestic regulations. Thus, GDRAs can be part of regulatory cooperation bodies (RCBs) that are usually established in so-called “mega-regional regimes” (Stewart, 2016) or they can be a party to large regional agreements such as the Transatlantic Trade and Investment Partnership. The RCBs are centralized, coordinating, and supervising authorities (Stewart, 2016: 14). Examples of such arrangements are the Canada-United States (U.S.) Regulatory Cooperation Council and the Mexico-U.S. High-Level Regulatory Cooperation Council. These bodies have been created through political agreements between the heads of state (OECD, 2013: 28). Finally, regional trade agreements usually incorporate regulatory cooperation agreements. These agreements have an international treaty as their source. In principle, such treaties make them less questionable in terms of their democratic legitimacy.
GDRAs can be implementers of non-domestic binding decisions
A GDRA performs this role when, as some scholars have recognized, “it is charged with implementing an international regime”(Kingsbury et al., 2005: 22). A global regime may emerge in two ways: first, when a state parliament, following its international obligations, enacts a law that will later be implemented by a GDRA regulation. Second, even without a previous law, when the GDRA produces a regulation that is without explicit recognition, prepared to satisfy future obligations of an international trade agreement that is being negotiated. An example of both forms of implementation can be seen in a controversial case in Colombia. Intellectual property protection was agreed under the Free Trade Agreement between Colombia and the United States; in particular, Colombia was exhorted to become a party to the International Convention for the Protection of New Varieties of Plants (UPOV 91). The Colombian Congress approved the Convention by means of a law (Law 1518 of 2012, now declared unconstitutional). Moreover, in 2010, the Colombian Agricultural Institute, the GDRA in charge of agricultural affairs issued rule 970 (no longer in force), established that only certified seeds could be planted in Colombia. As stated at the time, this regulation sought to prepare the country for entry into the authority of the Free Trade Agreement because it developed some parts of the UPOV Convention 91 and followed the Agreement on the Application of Sanitary and Phytosanitary Measures of the WTO (Gutiérrez Escobar and Fitting, 2016). The controversy, of course, was based on the Colombian Agricultural Institute’s lack of competence to implement an international regime without a previous law.
Why do we need a networked perspective of political legitimacy?
The global-domestic dimension of GDRAs shows a profound institutional change that leads to the acceptance of a transformation of their authority. Therefore, it should lead to questions about the prospects of the political legitimacy of global-domestic authorities.
The debate about the legitimacy of DRAs as domestic authorities is well known (Maggetti, 2010; Majone, 1999; Prosser, 2010; Rosanvallon, 2011; Tucker, 2018). There is also abundant discussion about the legitimacy of international organizations such as the WTO, the International Criminal Court or the European Commission (Besson, 2011; Besson and Tasioulas, 2010; Buchanan and Keohane, 2006; Christiano, 2012b). However, extant literature does not provide a clear vision of how to assess the democratic legitimacy of global-domestic authorities. Although this dimension is well known and the need to increase the legitimacy of DRAs when acting at the global level has been recognized (Abbott et al., 2017; Bach and Newman, 2014; Bianculli et al., 2015; Coen and Thatcher, 2008; Kingsbury et al., 2005; Levi-Faur, 2011; Maggetti and Gilardi, 2011; Raustiala, 2002; Ruffing, 2015; Slaughter, 2004; Tucker, 2018; Verdier, 2009), the intermestic, or “the gray area,” as it is often called, has mostly been used metaphorically in the literature.
Thus, in this section I propose that a networked perspective of political legitimacy must be developed to assess the democratic legitimacy of the global-domestic authorities. To show why such a perspective is necessary I will demonstrate that current perspectives are insufficient. Thus, among other things, I will show in this section that the legitimacy standards of DRAs do not fit because GDRAs pose new challenges to legitimacy: the distance from democratic control mechanisms (problem of scale); (ii) power asymmetries and global domination (problem of domination); and (iii) the fact that not all those affected by decisions can control and influence the decision-making process (problem of inclusion). However, I must first clarify the idea of political legitimacy.
The notion of political legitimacy
Although the concept of political legitimacy is one of the most controversial in political philosophy, it may be stated that to have political legitimacy is to have the right to rule. However, there are different interpretations of this right, as well as different conceptions of what is needed (the necessary and sufficient conditions) for an authority A to obtain the right to rule over a subject B (Christiano, 2012a). In any case, the concept of political legitimacy to which I refer is normative and should not be confused with the notion of legitimacy in a descriptive sense. The normative sense of legitimacy seeks to set objective standards with which to evaluate the authority exercised by a political actor.
An important issue pertaining to political legitimacy is that the moral relationship can be understood in a correlativist or non-correlativist sense (Edmundson, 1998). The first is also called binary (Martí, 2017) and is the dominant sense used in political philosophy to refer to the notion of the authority of the State (Christiano, 2012a; Raz, 2006): to have the right to rule is to have the right to make decisions with regard to a set of individuals who, in turn, have the obligation to comply with them. On the contrary, a non-correlativist position usually understands political legitimacy in gradual or scalar terms: an institution is not legitimate or illegitimate, but more or less legitimate depending on whether it meets the conditions established by a certain standard of legitimacy to a greater or lesser degree or in comparison to another authority (Buchanan and Keohane, 2006; Martí, 2017).
In this sense, I understand that an authority has a right to rule when certain criteria are satisfied by virtue of which it is possible to accept that it makes decisions. It can demand compliance regardless of whether or not the subjects agree with the content of the decision or perceive the authority as legitimate. Additionally, political legitimacy is gradual, and it is thus considered that an authority will be more or less legitimate to the extent that it best adheres to predefined criteria, mainly procedural, that tell it how to make a decision and why it and not another authority has the right to make it.
I also understand the notion of political legitimacy to be associated with democratic values. Thus the only legitimate political authority is one that responds to those values. Only democratic regimes guarantee that citizens can maintain ultimate popular control over public decisions so that it can be assured that these have been made according to the terms given by citizens (Pettit, 2012). Similarly, following Christiano (2008), I suggest that a democratic regime is legitimate because it safeguards the principle of political equality. More specifically, I share the general view of legitimacy proposed by neorepublicanism (Pettit, 2012) and understand it as compatible with the liberal view of legitimacy. According to this conception of legitimacy, the ideal of non-domination is the primary political goal and value that legitimizes political communities. Non-domination is at the heart of the republican conception of freedom. I will be in a relationship of domination when an agent “enjoys a degree of alien control” (Pettit, 2010a: 73) over me; that is, when an agent exercises arbitrary power, or, better, when that agent interferes with my choices without my being able to control it (uncontrolled interference). It follows that I have freedom as non-domination when, despite some interference, I can control it (Pettit, 2012).
Laborde and Ronzoni (2016: 280) highlight the diversity of interpretations surrounding domination. Nevertheless, it is crucial to acknowledge that, irrespective of the particular perspective, any relationship characterized by domination entails: (i) an imbalance of power between two agents or a group of agents, (ii) a relationship of dependence, and (iii) the existence of arbitrary power. I understand that these elements can be seen in current global governance and that States are unable to protect individuals from global institutions simply because the scope of many decisions transcends national borders (Buckinx, 2011: 276). Therefore, I share with the literature the idea that non-domination is a value that must be protected not only at the national level, but also at the global level.
However, as I argue in the next section, since the GDRAs are not international institutions, notions of international legitimacy cannot necessarily be applied to them. Nevertheless, given the global nature of the GDRAs, it is imperative to engage with debates about the legitimacy of international institutions. For this reason, the notion of legitimacy I adopt also takes into account discussions in the literature about the difficulty of applying the notion of legitimacy to these entities and what it means to speak of legitimacy in the face of transformations in the complex global order (Macdonald, 2023).
In this sense, I share the idea that some conceptions of legitimacy are insufficient to understand the legitimacy of international institutions, but that some of them nonetheless capture some of the transformations to which GDRAs are subject. I understand that just as the notion of coercion does not seem to capture the main characteristic of international institutions (Scherz, 2024), neither does it in all global domestic roles of GDRAs. Scherz (2024) argues that neither legitimacy understood as authority that creates corresponding obligations (Raz, 1986) nor as power liability (Applbaum, 2019) is sufficient to capture the legitimacy of international institutions and, for this reason, he proposes an autonomy-based conception of legitimacy that prioritizes political equality. Scherz notes that differences in power and purpose merit different types of standards, and more importantly, he observes that the relationships between institutions can also have an impact on political autonomy. Thus, like Scherz (2024) and Buchanan (2011), I ascribe relevance to the relationships between authorities in the sense that they affect the legitimacy of the authorities themselves. Buchanan refers to the relationship between states and international institutions, and Scherz also extends it to the relationship between international institutions. The former is called reciprocal legitimacy, the latter relational legitimacy. Both terms are related to what I call the network perspective of legitimacy. Thus, I am interested in emphasizing the relational character of the notion of legitimacy because it is at the heart of the domestic-global transformation of regulators. However, I will not take these relational conceptions at face value, since other types of authority are at stake, as I will discuss below.
The insufficiency of the prevailing perspectives of political legitimacy
What does it mean to ask whether a global-domestic authority such as a GDRA is legitimate? From a democratic point of view, it may be asserted that GDRAs are legitimate if there is equal influence and the possibility of ultimate control (Pettit, 2012) by the subjects and by those affected by the regulations produced by virtue of their global interactions. As has been demonstrated, the existence of global-domestic authorities implies that: first, citizens and companies may be affected (Goodin, 2007) or subjected (Abizadeh, 2008) to regulations based on or produced as a consequence of global norms over which neither states, nor their GDRAs, nor their citizens have much influence. And second, citizens and companies are also subject to domestic regulations that are the product of joint action between their authorities and the authorities of other states that have not been elected and do not perform the function of representing the state. They may also not have an equal influence on the decision-making process.
The problem, as I demonstrate in this article, is that neither the democratic legitimacy perspective to assess domestic authorities nor the standpoints from which the legitimacy of international authorities may be evaluated can clarify why the authority of GDRAs is democratically legitimate. The current framework of political legitimacy presents two main problems:
(i) It is designed purely for domestic authorities exercising individual authority within a state domain. This problem pertains to the character of the authority of GDRAs.
(ii) It does not incorporate adequate democratic legitimacy criteria to respond to the legitimacy demands for GDRAs. This problem relates to the adequacy of the standards of legitimacy.
The first problem is methodological, involving a problem of division. The second problem emanates from the first.
The problem of the character of the authority of GDRAs
The problem of the character of the authority of GDRAs can be explained in two parts. First, the problem of the individual character of the authority and second, the problem of its domestic character.
Scholars tend to approach the authority of GDRAs individually. That is, they see GDRAs as unconnected actors that act individually and that induce the understanding of their authority in the same way. The very notion of political legitimacy as the right to rule conceives that authority comes from an individual actor, even if this actor is a collective agent, such as the state. Thus, the notion of right to rule does not ask for instances in which an authoritative decision is formed by the connection between multiple actors or authorities. Thus, apparently, the only way to evaluate a GDRA is from an individual perspective of authority.
Consequently, the notion of legitimacy as the right to rule understood in this way seems incongruent with the global-domestic authority of GDRAs, whose attributes are defined by global interactions. It is by virtue of global interactions that this authority produces decisions. But even the literature that approaches authority in a plural way does not seem to have a satisfactory answer. Although this approach considers institutional interactions between actors at different levels of authority, it does not incorporate an explicit understanding of the global-domestic phenomenon. As may be seen with pluralist constitutionalism, it recognizes a logic of governance characterized by different levels of political authorities that are interconnected (DeBardeleben and Hurrelmann, 2007; Walker, 2002) but continues to treat the character of authority in an individual manner. The European Union is an example. When understood under the conception of multilevel legitimacy, it is only interested in seeking criteria so that each individual level has legitimacy in itself. Each authority is a sphere of power, an individual domain that is characterized by its belonging to a particular level of authority: the arena of the state, of the international, of the supranational. Similarly, normative legal pluralism (Krisch, 2010) also seems insufficient. According to this approach, there is no separation between normative levels, since none prevails over the others. Therefore, authority is understood to be individually exercised; interactively, but individually. This pluralist perspective holds that individual authorities legitimize themselves—or are at least accountable—by their interactions, so that when multiple actors discuss who is competent to make a decision, they are all controlled and can have a voice on the subject (Krisch, 2010: 15). However, this explanation does not reveal enough when researchers want to know how to legitimize the global-domestic authority that arises precisely from such interactions. Applying a pluralist recipe, a circular argument is obtained: decisions made under interactions are legitimate because multiple actors discuss interactively who should make the decisions.
Conversely, the problem of the domestic character warns about the linkage between the notion of the right to rule and the domestic or territorial level of authority. The principle of Westphalian sovereignty and the distinction between internal and external legitimacy notions is pertinent in this context. First, the principle of Westphalian sovereignty is based on three rules, all of which appeal to a necessary connection between having the right to rule and being part of a territory: “first, that the ruler of a state exercises sole authority over the territory of that state; second, that all states are judicially equal; and third, that state parties are not subject to any law to which they do not consent” (Zürn and Stephen, 2010: 92). Second, the literature tends to distinguish between internal and external legitimacy, and part of the distinction lies in the link between an authority and its territory. Internally, a state has the moral right to govern its citizens, but not the citizens of other states (Buchanan, 2003). The problem, then, is that by establishing a relationship between the right to rule and the domestic or territorial level, it is not possible to evaluate global-domestic authority, since the latter is not associated with a territory but with the connections between actors that may be non-state and non-governmental. This problem has also been acknowledged by those who point to the incapacity of current notions of legitimacy to justify the changing forms of authority (Peters and Schaffer, 2013).
The problem of the character of authority allows scholars to see what I term a problem of division. This problem is essentially methodological: one of perspective. The theory of legitimacy creates a division between the domestic and international levels. Thus, its perspective of division does not allow it to answer questions that are crucial in discussions of global-domestic authorities: How can the legitimacy of a GDRA that is part of a global regulatory network be assessed? How should the legitimacy of GDRA regulations that have global impacts be evaluated? How should the legitimacy of GDRAs that implement non-binding global rules be estimated?
The problem of the adequacy of the standards of legitimacy
The question of the political legitimacy of unelected authorities, especially national authorities with administrative functions, is usually answered through the well-known thesis of derived legitimacy (Christiano, 2008; Stewart, 1975; Tucker, 2018) with some exceptions (Rosanvallon, 2011). According to regulatory theory, the thesis of derived legitimacy is insufficient and DRAs have the character of fiduciaries (Majone, 2001). At the same time, in political theory DRAs have the character of representatives, albeit in a particular sense of representation (Pettit, 2010b). However, regardless of their point of view, scholars believe that certain principles or criteria should form the standard of legitimacy for DRAs. Thus, they demonstrate varying degrees of acceptance of the need for the coexistence of substantive (output legitimacy) and procedural (throughput legitimacy) principles, such as transparency, accountability, deliberation, and the principle of participation (input legitimacy). Moreover, while the content of a decision must be deemed correct or fair to affirm its substantive legitimacy, this consideration depends on the particular decision’s compatibility and correspondence with certain values that are thought necessary to serve as the grounding and orientation of such decisions. The complexity of such an evaluation becomes evident because democratic states find it difficult to achieve consensus on the substantive principles (Rawls, 1987; Waldron, 1999). In contrast, procedural principles indicate how regulatory decisions should be made, by whom, and through what procedures. Since these processes are based on democratic values, public decisions acquire a high degree of legitimacy. Thus, when talking hereafter about the standard of legitimacy for DRAs, I refer especially to the procedural principles, because these are central to the determination of the degree of legitimacy of a political authority.
Bearing this in mind, I argue that the legitimacy standard established by DRAs (Majone, 1999; Pettit, 2010b; Prosser, 2010; Rosanvallon, 2011; Tucker, 2018) is inadequate for assessing the legitimacy of GDRAs. Relying solely on existing legitimacy standard would result in an incomplete assessment because they do not account for the global interactions I have described. Hence, the DRA legitimacy standard is not adequate for GDRAs because it does not respond to the new challenges of political legitimacy. It should thus be noted that global-domestic authorities face three new legitimacy challenges: (i) the distance from democratic control mechanisms (problem of scale); (ii) power asymmetries and global domination (problem of domination); and (iii) the fact that not all those affected by decisions can control and influence the decision-making process (problem of inclusion).
The case of financial regulation allows the observation of all three problems. Many financial regulations originate in global institutions; they are intended to regulate financial interactions that occur in a deterritorialized space. As global-domestic actors, central banks and banking supervisory regulators have formed transnational networks such as the BCBS or the IOSCO. They must agree on certain standards at the global level to face and to prevent financial crises. Even the United States cannot act in isolation if it wants to ensure the stability of its financial system (Tucker, 2018: 400). Thus, the BCBS, composed of regulators from 28 jurisdictions, has been charged with producing guidelines for capital adequacy and minimum liquidity for banks (see Brummer, 2015). Among its best-known and most impactful regulations is the 1988 Basel Accord, revised in the so-called Basel II Accord, in 2004 and, due to the financial crisis of 2008, the Basel III Accord of 2010. In addition, the BCBS not only creates these standards, but also monitors their implementation.
A problem of scale then presents itself. Legislators and ministers are too far removed to exercise control over what their central banks agree with in Basel. This lack of control is relevant not only because financial regulators are independent actors who sometimes have low accountability in their own jurisdictions, but also because their standards have an impact beyond the jurisdictions involved. A 2014 report noted that of 109 jurisdictions, 94 had implemented or were implementing Basel II and that 89 had implemented or were implementing Basel III (Bank for International Settlements, 2014). This lack of control and the very nature of global interactions cause a potential scenario of global domination to emerge. Domestic regulators may be won over by international or domestic financial elites, or by governmental actors who may then end up setting the terms of global standards. Even regulators who are not part of such a club, such as those belonging to developing countries (i.e., those who have not participated in deliberations) face pressure from the financial market, the International Monetary Fund, and the World Bank to adopt such standards (Barr and Miller, 2006: 17). The latter also raises the issue of a problem of inclusion. Many regulators may not be participants in the Basel Committee deliberations, but they may still end up adopting its standards. In the absence of the adequate representation of developing countries on the BCBS, its analyses and recommendations will inevitably be biased.
The problem of scale
This problem arises because democratic states have little or no control over the decisions made in interactive global scenarios. This situation occurs because the autonomy of GDRAs is intensified when they interact globally. They have more information on technical issues and also obtain political bargaining knowledge, especially when GDRAs have high levels of independence at the domestic level without formal autonomy being necessary, as de facto autonomy can increase through global interactions (Ruffing, 2015: 1114). A popular control deficit is thus produced. It is not clear how the affected citizens, or their representatives, are able to be part of the global decision-making process. It is also unclear how executive control and other domestic controls can operate.
The problem of scale also shows a lack of clarity about the interests represented by GDRAs. While not true in all cases, it could be said that the less autonomy GDRAs enjoy, the greater the likelihood that they represent the interests of the State; the greater their autonomy, the more the likelihood that a broader public interest is being represented, but also a private one. Actually, it is not clear whether GDRAs should represent the positions of their communities as global-domestic authorities. Thus, a standard of legitimacy for GDRAs should help to resolve the tensions between the local and the international.
So far, the literature on the political legitimacy of DRAs indicates that the principle of accountability is necessary when regulators act at the non-state level. However, it is also not entirely clear how accountability should be understood. There are both optimistic and skeptical positions (Verdier, 2009): who should control the decisions that a network makes is contested as is the extent to which the accountability of the network (as a whole) should be distinguished from that of its nodes, such as the individual GDRAs.
The problem of domination
Scholarly literature on the political legitimacy of DRAs recognizes that the question of political legitimacy is associated with the control that exists over them. A system of controls should exist that does not interfere with their autonomy (Maggetti et al., 2013: 2) so that the accountability and autonomy of the DRAs are not incompatible standards. However, a problem emerges when we accept that DRAs are GDRAs since it is not quite evident how control over them should be exercised, because new relations of domination appear in the global-domestic dimension.
These relations of domination are determined by the asymmetries between actors and understood as a resource of power (Keohane and Nye, 1973). This understanding is relevant because, in practical terms, the most powerful states will be able to set the rules of the game on specific issues. Thus, asymmetric global interdependence is an instrument that augments the position of power of certain actors and such a scenario is prone to the creation of relations of domination. Hence, the notion of domination as developed in political philosophy in its republican tradition (Pettit, 2012) is key to the understanding of how power operates in the context of global governance. The notion of domination is not used for assessing when an actor has more power than another. Instead, it is applied in determining when such power should be questioned. Therefore, the ideal of non-domination is the main objective and the political value that legitimates political communities. Non-domination is the core of the republican conception of freedom: one is in a relationship of domination when an actor interferes with one’s choices without the person being able to control it. Thus, State interference is justified, and therefore its authority is more legitimate, when there is some kind of ultimate control applied by those who suffer that authority (Pettit, 2012).
If this ideal is transported to the global interactions of the GDRAs, they are seen to be prone to domination. Thus, first, many international cooperation arrangements may be biased toward more powerful states or private interests, so GDRAs are vulnerable to the arbitrary reception of regulations. Arbitrary interference may also occur in the receipt of soft law, one of the ways soft power (Nye, 2004) is expressed. It may happen, for instance, that large transnational industries end up regulating their own standards in the name of their interests, making the regulatory decision-making process biased.
Second, given the conditions of global interdependence, statist or domestic control can be a potential factor for global domination. Domestic control exercised over a GDRA can be overpowering when it involves undue political interference that results in the most powerful states seizing the advantage to impose their preferred standards on others (Verdier, 2009: 122). Finally, the greater or lesser bargaining power of a GDRA, its greater or lesser domestic institutional autonomy, or its degree of incidence in the global decision-making processes can generate power imbalances among the bodies that configure potential scenarios of global domination. It may be assumed that the bargaining power of particular GDRAs will depend on the power of the state represented by them. Moreover, some GDRAs can act as rule-makers and can only be rule-takers, amplifying an already asymmetric scenario.
The problem of inclusion
The inclusion problem means that many decisions made by GDRAs affect citizens, not only in their own jurisdictions but also in many others without them or their representatives having had the opportunity to participate in the decision-making process. This issue is connected to the problem of domination, which becomes more intense when the subjects affected by the decisions of GDRAs do not have equal influence in the decision-making process. As has been stated, a GDRA belonging to one State can regulate behavior of subjects from other states or can make decisions that influence subjects from other states with no guarantee of their inclusion in the decision-making process.
The so-called demos problem thus becomes evident. It highlights the lack of congruence between those who decide and those who are subjected or affected by the decision. This lack of congruence diminishes the levels of the political legitimacy of the global-domestic authority. Among the decisions made by the BCBS, many are, in practice, the product of power asymmetries among the banks that comprise the Committee. The lack of equal voice in the Basel Committee’s decision-making processes culminates in the accordance of greater power to the most powerful states or to other, more powerful actors, to influence the Committee’s decisions, leaving a trail of “silent citizens” (Bohman, 2015: 13). Some scholars seeking solutions to the demos problem understand that if all subjects in the world suffer the consequences of decisions made for them, a global democratic model should be built in which “world citizens are included” (Marchetti, 2008: 207–208). As such, it may be time to begin considering the demos problem in the field of technical decisions, as these are not entirely apolitical.
In this context, it should be noted that although the standards of the legitimacy of DRAs contemplate the principles of public participation and deliberation, they do not seem to be sufficient in the case of GDRAs. Hence, given the demos problem, it is important to discuss how these principles should be understood and applied beyond the domestic. That is, who might be the target audience for participation and deliberation? As I elaborate below, the network perspective of political legitimacy can offer a compelling framework for addressing the question of who constitutes the demos of the GDRAs and, consequently, how to determine who should be invoked to demand adherence to legitimacy standards. In this context, it is important to remember that the main answers to the boundary problem (Whelan, 1983) are subject to criticism. Firstly, the All-affected Interest Principle, according to which: “all those affected by a political decision ought, directly or indirectly, to have a say in its making” (Näsström, 2011: 117) presents a problem of uncertainty. Secondly, the alternative answer given by the All-Subjected Principle, advocating for the inclusion of those coerced by the state or imposed with duties, fails to encompass many individuals who might be impacted by the actions of other actors, as demonstrated in some of the aforementioned examples. Building on the insights of Bohman (2015), I argue that despite their critics, both principles serve to recognize various forms of domination. Therefore, I maintain that both principles are necessary. Moreover, I suggest that the network perspective I propose can help to accurately delineate those who are affected, a topic I will explore further in the following section.
Having stressed that the problem of adequacy of the standards of legitimacy and the problem of the character of authority point to the lack of a satisfactory perspective from which to assess the political legitimacy of GDRAs, in the next section I will elucidate why the networked perspective of political legitimacy that I posit is more suitable.
A networked perspective of political legitimacy
The networked perspective intends to overcome the problems mentioned in previous sections. Although this concept will have to be further developed in future work, the notion of political legitimacy assumed by this perspective is briefly outlined here along with its defining elements and its advantages.
A networked perspective of political legitimacy is informed by the science of networks and its methodologies. It recognizes that GRAs are evaluated and normatively judged in the context of a networked polity. In this framework, authority isn’t solely defined by territorial boundaries but also by connections within the network, leading to a diverse form of authority. Consequently, according to this viewpoint, GRAs exert authority through their interactions, shaping the social network that comprises various global citizen groups. The network perspective aims to offer a method for evaluating what I call the plural authority of GDRAs.
In this proposed perspective, the notion of political legitimacy is interpreted as the right to rule in a non-correlativist sense because, like international institutions, many decisions made or received by GDRAs do not claim coercive and exclusive political authority. Thus, the notion of legitimacy posited in this perspective continues to be relational, although it is understood in a scalar sense. With this notion in mind, a GDRA has political legitimacy if it is morally justified to make or receive regulatory decisions by virtue of its global interactions. Thus, those whose behavior is regulated have greater moral reasons for either accepting that GDRAs can enforce the decisions or that they do not interfere with them. Also, although the networked perspective is fundamentally methodological, it is necessary to link it to an ideal, given that it is intended to evaluate the legitimacy of GDRAs. Thus, this perspective embraces the democratic ideal of political legitimacy so that the moral justification of the global-domestic authority is only possible when the decision-making process adheres to democratic values.
Three elements make it possible to characterize this perspective. First, it is part of a broader category of legitimacy called relational legitimacy, according to which domestic/international interactions affect the legitimacy of an authority. For the relational perspective, global interconnections should allow the recognition that citizens assess the legitimacy of their states by taking into consideration their judgment of international and supranational institutions (DeBardeleben and Hurrelmann, 2007: 18). Something similar is proposed by the reciprocal legitimacy approach (Buchanan, 2011), according to which neither the domestic nor the international level can be legitimate without the other. However, the networked perspective goes beyond the reciprocal insofar as it does not divide authority levels into domestic and international, thereby overcoming the problem of the character of authority. The networked perspective starts from a factual understanding of the world: the global-domestic authorities operate fundamentally in a networked society where the logic of the power relations changes. Thus, according to the networked perspective, we live in a networked governance (Eilstrup-Sangiovanni, 2017) or in a network state (Castells, 2010). In this way, in a networked perspective, GDRAs are evaluated and normatively judged from the notion that they are part of a networked polity configured to solve policy problems. This view makes it possible to recognize that in a networked society, authority does not respond to the existence of territorial levels, but to the connections within the network that form a plural form of authority.
Thus, in the second instance, the networked perspective feeds on the science of networks to cognize the power that is at the base of plural authority: how power operates in and of networks (network power). The network theory allows us to see that network power has two faces: I call the first institutionalized network power, and the second, democratic network power. In the first, power is relational: it reveals the existence of a current interaction or asymmetric potential from which an actor exercises control over the behavior of others (Knoke, 1990: 3). For its part, democratic network power is based on a different conception of power: one that is given by the capacity of individuals and institutions to act with others so as to achieve a common goal. It implies the reorganization of the public sphere that has democratic implications, in the sense of empowering citizenship (Benkler, 2006: 465). This notion of power has been defended in political philosophy by women such as Arendt (1970), in the theory of organizations by Follett (1918), and it has recently been adopted by Slaughter (2017) in the theory of international relations.
Thanks to the notion of institutionalized network power, the networked perspective recognizes that authority is exercised through a plural character. Thus, the authority of the GDRAs is not determined solely by their individual domestic authority, but also by their interactions. Levels of individual authority are interconnected. From this interconnection arise other types of authority that are different from the domestic, supranational or international authority. They are forms of authority that do not depend on the level at which they are located; rather, they are defined by the way in which their connections are established. This power does not respond to hierarchical structures such as the state; instead, it answers to network structures that go beyond a territory. Recognizing such a plural character allows scholars to evaluate a single actor, understanding at the same time that this player’s political authority is transformed and constituted with the global interactions that occur within a network of actors or decision processes. It could thus be claimed that GDRAs exercise their authority by virtue of their interactions and that these interactions influence the social network formed by different constellations of world citizens.
Third, this perspective realizes that democratic power can also be exercised within a network, which opens up the possibility of embracing a standard of democratic legitimacy for the global-domestic authority. The concept of democratic network power invites the imaging of global networks of citizens providing a counterbalance to GDRAs, corporate lobbies, etc. In a networked society, it is possible to connect citizens so that they, too, can influence and give direction to public decisions, just like traditional lobbies. Thus, future research initiatives should focus on strategies so that this democratic network power can serve as popular control over institutionalized network power. For now, let’s turn to the question of the constituents of this democratic network power, namely the constituencies of the GDRAs. I argue that the perspective I propose offers a valuable way forward. The network perspective, with its methodological and normative contributions, allows us to assess the impact of decisions. If a network of actors exists for every public policy domain, the initial task is to identify and understand their positions within the network. Subsequently, we can delineate the extent to which a public decision affects them, considering the level of influence each actor holds within the network. The “rule of three degrees of influence” outlined by Christakis and Fowler (2009) may prove useful in this regard. This rule shows that an actor has influence over me even if I am not directly connected to him. If we apply this rule to the behavior of political actors, we could determine the affectedness of a decision based on this rule. For example, if an actor is three degrees away from the authorities of my state, it is most likely that the content and form in which he makes his decisions will have an important degree of influence, and in this sense I, or my representative, should be included in the degree of influence of the decision made by that actor. In this sense, the constituencies cease to be the citizens of the state to which the DRAs belong and become, depending on the policy area in question, a determined and determinable constellation of global citizens.
Finally, this perspective is satisfactory because it is nourished by the science of networks and their tools, therefore offering a method of judging the plural authority of GDRAs. Sociology has, in particular, contributed greatly to social network analysis (SNA). Researchers using the SNA approach comprehend that the connections between actors exert effects on the whole system and also on the individual behaviors of each actor. It is an approach that is the opposite of methodological individualism. It thus takes into account the interactions between actors and the structures of their relationships (Patty and Penn, 2017: 2). In this manner, scholars applying the network perspective can assess the degrees of influence exerted by actors within a network and can evaluate the degree to which each actor is influenced by other actors in the network. The outcome of this network analysis can serve as a guide for the interpretation of possible standards for global-domestic legitimacy, as well as their weights and the degrees of exigency that should be accorded to each. Thus, it is not enough to elucidate that a decision-making process must, for example, be transparent and participatory; rather, the networked perspective can help to determine the particular actor or node in the network that should bear the highest onus of transparency or the one that should shoulder the greatest burden of participation.
Similarly, the networked perspective makes the construction of a
Given these qualities, the network perspective on political legitimacy appears to effectively address the legitimacy challenges faced by GDRAs. Arguably, the most complicated challenge is domination, given the persistent nature of power asymmetries within networks. International power imbalances pose significant challenges to the impartiality of regulatory decision-making processes. Both the actors with whom the GDRAs interact globally and the actors within their own State, have the potential to arbitrarily interfere in the decision-making process. If these asymmetries lead to domination, the legitimacy of GDRAs could be significantly diminished. It is therefore crucial to ensure that these imbalances within the networks are transparent in order to keep them under control.
Conclusions
While GDRAs remain domestic actors, it seems necessary to assign them a character that is different from one that is purely domestic. GDRAs are global-domestic authorities. Such a conception is important because its consequences cannot be denied. GDRAs interact globally and generate new legitimacy challenges. Since current perspectives of democratic political legitimacy are insufficient for the assessment of the legitimacy of GDRAs, I have proposed a networked perspective of political legitimacy. This perspective is normatively sound because it recognizes the absence of individual authority. It is able to apprehend that discrete types of authority emerge from global interconnections. In this sense, the posited perspective provides a sounder basis from which to define the principles of global-domestic legitimacy.
Footnotes
ORCID iD
