Democratic Legitimacy and Non-Majoritarian Institutions: Reflections on the Functional and Democratic Legitimacy of International Adjudicative Bodies and Independent Regulatory Agencies

Abstract

The growing role of international adjudicative bodies, regulatory agencies driving public policies in areas such as telecommunications, health, energy and antitrust, and independent central banks running monetary policies are among the numerous signs of the empowerment of non-majoritarian institutions (“NMIs”) that carry out public policy without being accountable to the people through electoral and political processes.1 Despite being subject to tighter procedural rules, their development is increasingly raising questions of legitimacy as they are, just like “conventional” political authorities, blamed for not having delivered the promises that justified their creation. In In Whose Name? A Public Law Theory of International Adjudication, Armin von Bogdandy and Ingo Venzke reconsidered the basic purposes of one particular type of NMIs: international jurisdictions.2 Claiming that neither the original consent nor the functional goal is sufficient to settle their legitimacy and representation concerns convincingly, the authors tried to find universal standards for the democratic legitimacy of these institutions. The frontier between universalism and skepticism being thin,3 “any contribution that purports to be conceived as universal should be