Matters of Preference: Tracing the Line Between Citizens, Democratic States, and International Law

• Position: Associate Professor, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law; Adjunct Graduate Faculty, Park University School of Business
• Pages: 03

Associate Professor, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law. Adjunct Graduate Faculty, Park University School of Business and Hauptmann School for Public Affairs, Ph.D. (Economics and Political Science), University of Missouri-Kansas City; J.D., Seattle University School of Law; M.B.A., Rockhurst University. The authors wish to thank Jeff Boersma, Jeff Horen, and Robert Menanteaux for their comments to earlier drafts of this Article.

Page 419

In this Article, we assess the role that the aggregation of citizen preferences into the foreign policy choices of a democratic country might play in the legitimization of international law. After addressing some of the theoretical and empirical issues of such an approach, we use a variation of an anticipated reaction model to show that even in large democracies there are mechanisms through which citizen preferences can be and are reflected in the policy choices of their representatives. Incumbents and candidates for public office take policy positions in hopes of maximizing their future election chances. Although policymakers each have their own personal policy preferences, those preferences must be balanced against those of the electorate to optimize the prospects for future election. Rational, well-informed policymakers anticipate future electoral consequences of public opinion and adjust their present policy positions accordingly. We then discuss the implications of such an approach for the principle of subsidiarity and the participation of states in multilateral institutions, in particular the International Monetary Fund. We argue that there is reason to believe that citizen preferences remain relevant in decisions whether to centralize or decentralize and in decisions whether a state will support or undermine the mission of international institutions. Those preferences must be considered as those institutions make their own substantive and procedural choices.

Page 420

I Introduction

The current international economic crisis underscores the difficult problem of the legitimacy of international law, as decisions made on the international level impact individuals, families, and communities worldwide. There have been several responses to this challenge. ¹ Among them is the claim that the legitimacy problem is ameliorated to the extent that a nation state enjoys a democratic form of government, in which citizens have some say in the adoption of laws and regulations that bind them. This Article explores one aspect in which that claim is true by modeling situations in which the preferences of citizens in a democracy are reflected in the decisions of policymakers, who then try to influence decisions on the international level. This Article acknowledges the theoretical and empirical limitations of this approach. Nonetheless, there is value in describing formally what a number of scholars have observed, that at times, foreign policy issues become sufficiently important to citizens that policymakers must consider the preferences of even diffuse citizen groups when they formulate and advance solutions to various international issues. This observation, of course, is only half of the equation since the mere fact that citizens have some impact on foreign policy decisions on the national level could mean little when decision- making moves to the international level. Nevertheless, understanding what happens within a democratic state serves as a starting point from which to assess what happens as states interact and try to influence international decisions.

This Article consists of three substantive parts. In Part II, it describes the underlying legitimacy problem and situates, within an array of possible responses, the democratic state's answer to that problem. Certain replies to the legitimacy problem rely on the state as the intermediary through which consent to be bound by international law and accountability by international bodies to citizens occur. It is appropriate then to ask whether such consent and accountability represent, in any meaningful way, actual citizen preferences about such issues. If they do, the democratic state is a relatively strong response to the legitimacy problem.

The remainder of Part II identifies and discusses theoretical and empirical challenges of such an approach. Among these challenges are the limits of an aggregative understanding of democracy, and concerns whether Page 421 the public has any interest in foreign policy matters and whether leaders respond to the public in any case. Such limits and concerns are significant. However, with respect to aggregation, there are reasonable responses to challenges to the basic assumptions of any social-maximizing approach, including beliefs about human behavior and the formal problems raised by collective action. Furthermore, although legitimacy has several facets, one powerful claim is that legitimate governments are those that respond to the wishes of their citizens. With regard to citizen impact, our review of the literature indicates that although the public often leaves foreign policy matters to elected leaders and experts, there are times when the public does care about foreign policy. Under such circumstances, elected officials often do respond to that concern.

In Part III, this Article makes a more formal argument by adopting an anticipated reaction model, which describes policymakers' decisions in relation to the preferences of voters. The model that this Article adopts assumes that, as rational actors, policymakers make policy decisions with the expectation of maximizing future election chances. While policymakers have their own personal policy preferences, those preferences must be balanced against those of the electorate. Thus, whether out of political expediency or out of a desire to represent the interests of their constituents, rational and well-informed policymakers anticipate the future electoral consequences of public opinion and adjust their present policy positions accordingly.

In Part IV, this Article explores some of the implications of the model and directions for further research. With regard to the latter, the most important task-expressing formally how norms might be adopted at the international level after a democratic state adopts its own norms through the process described here-must be left for another time. However, at this point, this Article argues that, at a minimum, the model has implications for two areas of international law. First, a model that takes seriously the possibility for citizen impact on foreign affairs helps better assess subsidiarity, which itself has been proposed as a criterion for the legitimacy of international law. Second, such a model lends support to arguments for broad state participation in multilateral organizations and in other international governing bodies.

II Democratic States As A "Solution" To The Democratic Deficit

A The Problem and Its Solutions

Over the past two decades, it has been so widely accepted that democracy is the primary source of legitimacy of government and of law that some scholars speak of an emerging international right to democracy. ² As this Page 422 consensus was emerging, the scope of international law was already expanding both its reach and penetration into areas traditionally reserved to states. These two trends raise a troubling question: if democracy is the primary source of the legitimacy of government and law, what does this mean about the legitimacy of international law arising from institutions and methods of governance that can be far from democratic? As Kumm puts it:

Citizens find themselves in a double bind: the meaning of participation in the democratic process on the domestic level is undermined as international law increasingly limits the realm in which national self-government can take place. At the same time, there are no comparable democratic institutions and practices established on the international level. ³

In a recent paper, Keohane, Macedo, and Moravcsik reviewed three conventional responses to the legitimacy problem, two of which are significant here. ⁴ The first response, based on legitimacy derived from accountability, argues that policy decisions made by international multilateral institutions are "directly accountable to [their] member states, and thus indirectly accountable to publics in the democracies among them." ⁵Keohane, Macedo, and Moravcsik point out that multilateral institutions have limited coercive powers compared to states, are largely controlled by national governments through appointments to such institutions, require supermajority votes, consensus or unanimity to act, and require national implementation of policies. ⁶ In this view, such "mechanisms add to a high level of accountability, albeit mostly indirect, and render the arbitrary exercise of power by international institutions far less likely." ⁷

The second response, grounded in consent theory, argues that the power given to multilateral institutions has been "delegated democratically and Page 423 could . . . be rescinded that way." ⁸ According to this view, ratification processes on the domestic level provide ample room for democratic deliberation and governments often retain the right to withdraw from international institutions. Thus, it is arguable that citizens indirectly give their consent to international exercises of power through their national governments. ⁹

Both the accountability-based...