The Future of Democratic Sovereignty and Transnational Law

This essay examines the rise of legal cosmopolitanism in the period since the UDHR of 1948 as it gives rise to two very distinct sets of literature and preoccupations. The mainly negative conclusions drawn by conventional political theory about the possibility of reconciling democratic sovereignty, are contrasted with a transnational legal order to the utopianism of contemporary legal scholarship that projects varieties of global constitutionalism with or without the state.

The author argues that transnational human rights norms strengthen rather than weaken democratic sovereignty. Distinguishing between a ‘concept’ and a ‘conception’ of human rights, I claim that self-government in a free public sphere and free civil society is essential to the concretization of the necessarily abstract norms of human rights. Benhabib's thesis is that without the right to self-government, which is exercised through proper legal and political channels, we cannot justify the range of
variation in the content of basic human rights as being legitimate. She names processes through which rights-norms are contextualized in polities ‘democratic iterations.’

The institutionalization of human rights norms through democratic iterations that permit their revision, rearticulation and contestation, both within judicial institutions and in the larger spheres of civil society, exhibits certain ‘epistemic virtues’ and shows, in Allen Buchanan’s words, ‘public practical reason’ at work.

In conclusion, in addition to Buchanan’s thesis, the author considers Anne-Marie Slaughter’s concept of ‘transjudicial communication,’ and Judith Resnik’s model of ‘law by affiliation’. These three models, like ‘democratic iterations,’ develop modalities of thinking beyond the binarism of the cosmopolitan versus the civic republican; democratic versus the international and transnational; democratic sovereignty versus human rights law.