Constituent Power and the Democratic Legitimacy of Institution Building in the Global Realm

The legitimacy debate in international political theory focuses on desirable end states for global governance institutions and neglects the problem of institution-building. While the literature provides numerous blueprints for legitimate international institutions, the following question is hardly considered: Who should be entitled to establish and reform international institutions and to decide on their basic features in the first place? My paper addresses this question in three steps. First, I distinguish legitimacy from justice and introduce a two-dimensional conception of democratic legitimacy according to which democracy not only entails the people’s right to self-government within a given polity but also what has traditionally been conceptualized as ‘constituent power’: the entitlement to establish institutions of public authority. Second, I discuss the legitimacy of institutional politics beyond the state. I consider and reject the intergovernmentalist account that promotes states as the legitimate agents of supranational institution-building (Pettit, Christiano). The executive-centered account is based on the assumption that the establishment of international institutions does not trigger considerable participation requirements because the constituent documents of international institutions are nothing more than intergovernmental contracts. Against this, I argue that the traditional distinction between treaty-making and constitution-making under contemporary conditions no longer holds. Just like state constitutions, the constituent documents of international institutions provide the legal basis for the exercise of public authority. Hence, we should conceive of institution-building beyond the state as a form of constitutional politics that should be subject to democratic control. Third, I consider what the dualist conception of democratic legitimacy can contribute to a theory of legitimate supranational institution-building. Drawing on the major contributions to the emerging debate on constituent power beyond the state (Habermas, Cohen, Besson), I present tentative answers to the following questions: What is constituent power beyond the state? Who holds it? And how could it be legitimately exercised?