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- Alfred C. Aman Jr.
- Democratic Rule of International Law | European Journal of International Law | Oxford Academic
Alfred C. Aman Jr. O'Byrne Professor of Law. Aman graduated from the University of Rochester in and the University of Chicago in , where he was executive editor of University of Chicago Law Review. Aman then served as a clerk to Elbert P.
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Tuttle , on the U. Court of Appeals, 11th Circuit from — In he became a faculty member at Cornell Law School , and worked there until In , Aman took the position of dean of the Indiana University School of Law - Bloomington, a position which he held until He is the author of four books and numerous articles on administrative, regulatory, and deregulatory law, especially as it relates to the global economy, and serves as a faculty editor of the Indiana Journal of Global Legal Studies.
One premise of this book is that the primary purpose of public law, and administrative law in particular, is to ensure that citizens can influence and take responsibility for the new public-private partnerships that are the main institutional effect of globalization in the United States. This means more than providing negative rights and remedies for injustices, or even making private providers accountable for their actions. Traditionally, public law such as administrative and constitutional law is the law that applies primarily to governmental institutions.
For this to occur, public law must supply procedures and forums to enable citizens effectively to participate in the shaping of the policies and structures of the private and semiprivate regulatory regimes that now govern what was once public. Some of these procedures and forums already exist, and others do notalthough some basic principles exist in law to serve as guidelines for their invention.
Alfred C. Aman Jr.
Another premise of this book is that social justice and the political change it requires necessitates a proactive, future-oriented role for law. Law is not just an instrument of command or control but is also a highly flexible idiom for creation and innovation.
For these reasons, I regard law as essential to the creation of a new politics by which concerned citizens might debate real alternatives to the means and ends of the privatized and, as we shall see below, internationalized institutional structures within which many legal and economic policies are produced today. In the context of globalization, debates regarding the role of law typically borrow their form from debates over federalism.
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This means that law is seen in hierarchical terms as if power were entirely a top-down affair; a supremacy clause is tacitly assumed. Accordingly, debates over the. How much sovereignty do we give up by delegating decision-making authority to international organizations such as the WTO? How do we harmonize domestic law with the law as mandated by international organizations?
As we shall see below, international organizations are important decision-making sites affecting citizens at the local level, and they raise important issues for domestic law. More importantly, as we shall see in later chapters, underlying this debate about the role of law in a global economy are assumptions about democracy and legitimacy. As noted above, some theorists envision law and markets as rival forms of governance, law being the form of governance belonging to the state, and markets being the form of governance belonging to democratic society.
At the risk of oversimplification, one might further describe such theories as based on an assumption that the differences between law and markets essentially involve a zero-sum relation, strengthening one implying a weakening of the other. For some theorists, the answer is in the models themselves. The market, imagined as an open field of products supported or rejected by potential consumers who are free to choose for themselves, would seem to be the very image of perfect freedom.
Meanwhile, law, imagined as a restrictive product designed by specialists, would seem to be democratic only to the extent that the lawmakers can legitimately claim to be acting on behalf of those people they represent. From their point of view, election is a specialized indirect form of market selection and, wherever possible, government action should be replaced by the market in the more direct sense. This ideal is based on a model of pure democracy as an open market in which individuals can assert their own interests. For some theorists who hold to this view, all interests are essentially economic interests.
But in this, they do not distinguish between markets and metaphorical marketsa distinction that will be important to our discussion later. Be that as it may, relative to such open competitive arenas as these theorists imagine the marketplace to be for individuals and,. Scenarios such as these are not difficult to find in the marketplace and in politics.
Markets are sometimes more open than public office and politicians are sometimes venal or corrupt. But more fundamentally, these very theories have guided the development of markets and political institutions in the United States for twenty-five years or more. This being the case, it is especially important to note some deep flaws in these metaphors and models that define markets as if they were a general or natural state of affairs in relation to which law could be only an intrusion or diversion from efficiency.
First, markets and law are neither internally unified nor stable. Markets and law are institutions and, as for all institutions, this means that they are dynamic social processes, not monolithic entities.
Democratic Rule of International Law | European Journal of International Law | Oxford Academic
Even within the United States, which is only one player, albeit a powerful one, markets and legal systems are plural and internally diverse, shaped by their own mechanisms of inclusion and exclusion and prone to change. Second, markets and law do not function in a zero-sum relation.
Strengthening one does not necessarily weaken the other. Nor does enhancing a persons power as a consumer imply empowerment in democratic terms, since the former is inevitably reactive one can only choose from among available options and the latter is ideally proactive and deliberative, as well as electoral. Democracy is not merely about freedom of choice but also about participating in the creation of new options, among other things. Third, the federal structure is not a straightforward hierarchy that increasingly distances power from the people through incrementally attenuated systems of representation but is, rather, a system for allocating powers between states and the federal government, and also for regulating the borders including a large gray zone between the public and private sectors.
Fourth, in the same vein, the global is a reference not to domination of or by foreign countries or international organizations whether by market power or legal rules but to the nexus of transnational institutions and processes on which the pragmatic autonomy of individual states is contingent. The terms of current debates on these issues have been set largely by public choice theorists. In simplified form, the theory goes something like this: perhaps the democracy of the market is the best democracy of all, since collective action risks cooptation by special interests with the most to gain or to lose.
But if there is to be public action, citizens should be as close to the decision makers as possible. The greater the distance, the more likely it is that special interests will prevail over the collective good. For the same reason, local community decisions are better than state decisions, and state decisions are better than national decisions.
Moreover, whatever the decisions, they gain their legitimacy from procedures that adhere to formal models of democracy, that is, that depend primarily on the actions of elected legislators and executives. The state, in other words, is a formal institution, the very formality of which is the warrant of its democratic legitimacy. There is much to be said for the skepticism that the public-choice model expresses relative to public law making.
In the legislative process, there are indeed powerful interests at work, and it is in their interest to lobby as effectively as they can. But it is easy to carry this analysis too far, becoming more cynical than analytical about the ways in which public policy is made. More important, the overall thrust of this skepticism errs in imagining bright-line distinctions between states and markets, states and civil society, among states, and between states and nonstate entities.
The turn to the private sector as the primary protector of the public interest not only idealizes the market but also fails as an analysis of globalization. As we shall see later, the problems of democracy deficit to be addressed in this book stem not from the cooptation of the state by private interests butif anythingfrom the inverse: the infusion of the private sector by public-service functions. Nor are the solutions to the problems of globalization to be found primarily outside the state in civil society and markets, as if these were also distinct and separate realms of social life.
Rather, we shall see that public and private are mutually intertwined and that deregulation in favor of markets is itself a potent form of legal regulation. A strictly hierarchical conception of law perpetuates the fiction that globalization is out there, like a force of nature, the result of the economy at work. In contrast, drawing on recent history, I will argue that globalization is embedded in all of our local institutions, public and private.
The primary manifestations of this embeddedness are the governments use of markets and private providers to produce and distribute.
Today, the roles and functions of public and private actors are now so enmeshed as to make any bright lines between them, for purposes of addressing issues of accountability or transparency, artificial and even counterproductive. The democracy deficit results not from too much public decision making but from too little. Markets, unchecked or unfettered by law, simply do not offer the transparency and accountability necessary for a vibrant democratic society.
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By taking into account the global dynamics in which domestic institutions operate as both key players and affected parties, we can develop new approaches to law and policy. I present these in terms of some basic principles of administrative lawadministrative law being the main body of law that establishes both positive and negative rights for citizens confronting questions about the relationship of states to markets.
Those principles place primary emphasis on citizens having the information necessary to understand issues of public significance. I extend those principles to include the private sector, where the private sector is performing public functions, as well as to international bodies. More than deepening public awareness and understanding, the reform agenda I propose also includes the expansion of public participation in shaping those issues and outcomes.
Thus, I also consider political and economic forums both old and new available to citizens and other stakeholders for the effective and timely expression of their views and preferences, regardless of the label attached to the decision makers involved.
I do not claim that the reforms I propose will answer to all the needs for democratizing globalization, or for calling public and private institutions to fuller account; however, they would widen the arenas for public involvement and state accountability at the institutional junctures where globalization comes home, so to speak. Law remains relevant in privatized and deregulated settings, and there is existing law to apply. The democracy problem inherent in globalization invites a debate over more than which public institutionthe court, the executive, or the legislatureis best suited to decide which legal issues.
More fundamentally, it involves coming to grips with the fact that private entities carrying out public tasks must be held accountable for their performance. Citizen responsibility for private actions requires more than deference to a single legislative decision to privatize or an executive determination to contract out governmental responsibilities.