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The democratic potential of systemic pluralism

Published online by Cambridge University Press:  15 July 2014

Department of Political Science, Stockholm University, Södra Huset, Universeitwagen 10 F, Plan 5, Stockholm, Sweden 106 91


This article analyses how, and under what conditions, a systemically-pluralist structure of international law provides a springboard for global democratization. I argue that contestation and deliberation – core values of democracy – can and do arise within systemic pluralism. Specifically, I contend that institutional heterarchy between legal orders and forum shopping by different actors provide a means to engender these democratic values. I maintain that democratization can be sought on both horizontal and vertical planes: the former being the sphere of multilateral negotiations; the latter being governance which links individuals directly to sites of public power. In making this argument, I analyse recent developments within global intellectual property law, establishing and treating the multiple jurisdictions in this issue-space as an instantiation of systemic pluralism. This article thus provides a normative strategy for ongoing democratization of international law. Systemic pluralism must still prove its merits in terms of stability, the rule of law, and other values. However, I provide a method to advance transnational democracy that takes seriously empirical realities and competing normative visions.

Research Article
Copyright © Cambridge University Press 2014 

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7 MacCormick, N, ‘Risking Constitutional Collision in Europe?’ (1998) 18 Oxford Journal of Legal Studies 528–32. Krisch, Beyond Constitutionalism (n 1). MacCormick uses the phrase ‘radical’ pluralism, which I take to be coterminous with ‘systemic’ pluralism.

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11 On the methodological point, see AL George and A Bennett, Case Study and Theory Development in the Social Sciences (Belfer Center for Science and International Affairs, Massachusetts, 2005).

12 Though, to be sure, democratic legitimacy relates strongly to these other factors.

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18 Krisch, ‘Who is Afraid of Radical Pluralism?’ (n 4) 387. Alec Stone Sweet has also documented a position called ‘constitutional pluralism’, which is similar to institutional pluralism. I leave it off the list to avoid confusing terminology. See Sweet, A Stone, ‘The Structure of Constitutional Pluralism’ (2013) 11 International Journal of Constitutional Law 491500.

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24 See JL Dunoff, ‘The Politics of International Constitutions: The Curious Case of the World Trade Organization’ in Dunoff and Trachtman (n 16) 178–205.

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29 On the US case, see D Halberstam, ‘Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States’ in Dunoff and Trachtman (n 16). For the EU, see M Poiares Maduro, ‘Europe and the Constitution: What If This Is As Good As It Gets?’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press, Cambridge, 2003).

30 Over time, the US has become more constitutionalized and hierarchical, even though ultimate authority is left ambiguous.

31 Krisch, ‘Who is Afraid of Radical Pluralism?’ (n 4) 387.

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35 For a similar view in political theory, see C Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford University Press, Oxford, 2003).

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37 Krisch, Beyond Constitutionalism (n 1) esp ch 8. This article begins to build upon and test Krisch’s claim about the democratic potential of systemic pluralism.

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45 This is especially relevant given that electoral mechanisms seems a distant, and perhaps even undesirable, mode of democratic politics beyond the state. Macdonald and Macdonald, ‘Non-Electoral Accountability in Global Politics’ (n 6) 89.

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48 de Búrca, ‘Developing Democracy Beyond the State’ (n 5) 129.

49 Scholte, ‘Reinventing Global Democracy’ (n 14) 1. I employ the term ‘the people’ to refer to affected individuals who deserve democratic standing in decision-making procedures. See below for a more extensive discussion.

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55 Pettit, ‘Depoliticizing Democracy’ (n 54) 61. Although this quote refers specifically to the public power exercised by a government, it could equally well refer to any site of authoritative rule-making.

56 Bohman, ‘Cosmopolitan Republicanism’ (n 50) 176.

57 N Urbinati and M Warren, ‘The Concept of Representation in Contemporary Democratic Theory’ (2008) 11 Annual Review of Political Science 407. Of course, this is also true within the state.

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64 C May, ‘The World Intellectual Property Organisation and the Development Agenda’ (2008) 22 Global Society 97–113. Though, to be sure, national systems were often highly self-contained.

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67 Ruth Okediji argues that although the relationship is not formally hierarchical, in practice the WTO has supremacy. See RL Okediji, ‘WIPO-WTO Relations and the Future of Global Intellectual Property Norms’ (2008) 39 Netherlands Yearbook of International Law 69–125. This claim is contested – rightly, in my view – by KJ Strandburg, ‘Evolving Innovation Paradigms and the Global Intellectual Property Regime’ (2009) 41 Connecticut Law Review 861–920.

68 WTO-WIPO cooperation agreement, <>, accessed 15 October 2013.

69 WHO, WIPO, WTO Trilateral Cooperation on Public Health, Intellectual Property, and Trade, <>, accessed 10 October 2013. On domestic legal acceptance of that policy, see ‘Promoting Access to Medical Technologies and Innovation: Intersections between public health, intellectual property and trade’, <>, accessed 10 October 2013, 229.

70 Krisch, Beyond Constitutionalism (n 1) 294.

71 J de Beer, ‘Defining WIPO’s Development Agenda,’ in J de Beer (ed) Implementing the WIPO’s Development Agenda (Wilfrid Laurier University Press, Ottawa, 2009) 1–23. See also ‘Overview of the Development Agenda’, <>, accessed 10 October 2013.

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75 Brazil, Thailand, South Africa and especially India have successfully adopted this tactic. See D Dionisio, ‘Trade and Access to Medicines: Things the WTO Should Consider’, <>, accessed 31 January 2014.

76 Helfer, ‘Regime Shifting’ (n 10) 42.

77 For an argument concerning the coercive nature of TRIPS compliance, see PK Yu, ‘The Objectives and Principles of the TRIPs Agreement’ (2009) 46 Houston Law Review 979–1046.

78 There was, almost exactly, a tenfold reduction in staff employed in the sector in the early 2000s. See Thayer, JD, ‘The Trade of Cross-Border Gambling and Betting: The WTO Dispute between Antigua and the United States’ (2004) 3 Duke Law and Technology Review 112.

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83 Helfer, ‘Regime Shifting’ (n 10) 42.

84 Helfer, ‘Regime Shifting’ (n 10) 34.

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88 Bohman, Democracy across Borders (n 53).

89 Isiksel, ‘Global Legal Pluralism as Fact and Norm’ (n 2) 177.

90 Of the now 22 signatories, only Japan has ratified ACTA. This occurred in 2011. In a notable shift, the EU Parliament rejected ACTA in 2012.

91 2004 was the same year that Brazil and other developing countries made public the pursuit of a Development Agenda in the WIPO.

92 PK Yu, ‘ACTA and Its Complex Politics’ (2011) 3 WIPO Journal 1–16.

93 For an early statement in this vein, see SK Sell and A Prakash, ‘Using Ideas Strategically: The Contest between Business and NGO Networks in Intellectual Property Rights’ (2004) 48 International Studies Quarterly 143–75. See also Kapczynski, ‘The Access to Knowledge Mobilization and the New Politics of Intellectual Property’ (n 66).

94 D Drezner, ‘The Power and Peril of International Regime Complexity’ (2009) 7 Perspectives on Politics 65–70.

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96 See, for instance, the Open letter from La Quadrature du Net, ‘ACTA: A Global Threat to Freedom’, <>, accessed 19 February 2014.

97 A Dür and G Mateo González, ‘Public Opinion and Interest Group Influence: How Citizen Groups Derailed the Anti-Counterfeiting Trade Agreement’ (2013) Working Paper available at <>, accessed 12 February 2014.

98 Dür and Mateo González, ‘Public Opinion and Interest Group Influence’ (n 97) 5.

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104 SK Sell, ‘TRIPS Was Never Enough: Vertical Forum Shifting, FTAs, ACTA, and TPP’ (2011) 18 Journal of Intellectual Property Law 449.

105 Joint Press Statement of the Anti-Counterfeiting Trade Agreement Negotiating Parties, <>, accessed 18 October 2013.

106 Gutmann and Thompson, Democracy and Disagreement (n 61).

107 Dür and Mateo González, ‘Public Opinion and Interest Group Influence’ (n 97) 20.

108 Indeed it was an implicit argument that high IPR standards would generate these benefits.

109 Yu, ‘ACTA and Its Complex Politics’ (n 92) 7. Moreover, because the DSB has ruled several times in favour of weaker states, developing states are increasingly unable to wield the ‘stick’ of trade sanctions.

110 Habermas, The Postnational Constellation (n 62).

111 O Solon, ‘Netherlands Rejects ACTA, and Forbids any Similar Legislation’ (2012) <>, accessed 6 March 2014.

112 Dür and Mateo González, ‘Public Opinion and Interest Group Influence’ (n 97) 20.

113 M Ermert, ‘Unprecedented Vote: EU Parliament Trade Committee Rejects ACTA’ (2012) <>, accessed 18 October 2013.

115 La Quadrature, ‘ACTA’ <>, accessed 2 March 2014.

116 IP-Watch, ‘ACTA Debated at WTO; Petitions and Letters Fly in Brussels’ (2012) <>, accessed 7 March 2012.

117 IP-Watch, ‘ACTA Debated at WTO; Petitions and Letters Fly in Brussels’ (2012) <>, accessed 7 March 2012.

118 P Lamy, ‘WTO Responds to Concerns of the European Parliament on ACTA’ (2010) <>, accessed 8 March 2014.

119 F Gurry, ‘Historic Treaty Adopted, Boosts Access to Books for Visually Impaired Persons Worldwide’ (2013) <>, accessed 29 February 2014.

120 Krisch, Beyond Constitutionalism (n 1) 280.

121 This case, happening largely within South Africa and sub-Saharan Africa, would be particularly useful to test normative theories away from the traditional Western locations.

122 See, for instance, Stevenson, H and Dryzek, JS, ‘The Discursive Democratisation of Global Climate Governance’ (2012) 21 Environmental Politics 189210.

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123 Hoffman, MJ, Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, Oxford, 2009).

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124 A normative assessment of either the horizontal or vertical level on its own may be plausible but, in my view, is insufficient for remedying the democratic deficit.

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