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The Concept(s) of Accountability: Form in Search of Substance

  • DANIELLE HANNA RACHED
Abstract

Accountability has become a cornerstone of current discussion on the prospects of legitimate and effective global governance. In spite of its rather high currency, accountability does not partake in the select group of first-order political ideals: democracy, human rights, constitutionalism and rule of law have all been historically uttered in much more vocal tones and still remain at the forefront of public demands for legitimate authority. Rather than radiating a comprehensive legal or political vision, accountability supplies a power-constraining toolbox that allows for a variety of more or less attractive permutations. This rather commonplace story, though, tells very little about the concrete configurations, underlying values and ends of accountability. The concept of accountability remains unstable because, among other things, its descriptive and normative aspects lack a clearer articulation; traditional taxonomies fail to precisely illuminate its political and extra-political instantiations, and their respective connection with law; the relevant descriptive variables that shape accountability arrangements are not yet systematized in a comprehensive way; the specific normative goals that lurk behind the calls for more accountability tend to be taken for granted, and the trade-offs or internal tensions that necessarily occur are usually camouflaged. Conceptual clarification, thus, is indispensable whenever one comes across such multifaceted umbrella terms. The article attempts to diagnose such shortcomings, to elucidate a minimalist concept of accountability and to provide a large analytical map that can aid both the description and the critical assessment of accountability arrangements in light of their potential purposes. This analytical exercise is a pivotal starting point if accountability is to get a better grip on the debates about the improvement of global governance.

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1 Mashaw, J.L., ‘Accountability and institutional design: some thoughts on the grammar of governance.’, in Dowdle, M. (ed.), Public Accountability: Designs, Dilemmas and Experiences (2006), 115, at 131. In the same vein, he also maintains: ‘We all feel ourselves accountable in one way or another to scores of other people and institutions.. . . The ubiquity of accountability regimes, and our entanglement in scores if not hundreds of them simultaneously, complicates the task of sorting regimes by family, genus and species’ (Ibid., at 118).

2 The literature on accountability is manifold. It ranges from political science to public administration, from administrative law to international law and international relations. A comprehensive sample of this extensive literature will come up along the dissertation. For an overview, see R.G. Mulgan, Holding Power to Account: Accountability in Modern Democracies (2003). As Mulgan himself has put it: ‘“Accountability” and “accountable” are buzzwords of our era’ (Ibid., at 1). Or Rubenstein: ‘accountability is often treated as a buzzword that is good in and of itself’. Rubenstein, J., ‘Accountability in an Unequal World’, (2007) 69 The Journal of Politics 616, at 620.

3 This ‘assistance’ to more salient political ideals is already implied, for example, by the 1789 French Declaration of the Rights of Man and Citizen, Art. 15: ‘Society has the right to require of every public agent an account of his administration’ (‘La société a le droit de demander compte à tout agent public de son administration’).

4 See R.B. Stewart, ‘Accountability, Participation, and the Problem of Disregard in Global Regulatory Governance’, (2008) NYU, IILJ International Legal Theory Colloquium (available at www.iilj.org/courses/documents/2008Colloquium.Session4.Stewart.pdf); Kingsbury, B. and Stewart, R.B., ‘Legitimacy and Accountability in Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations’, in Papanikolaou, K. and Hiskaki, M. (eds.), International Administrative Tribunals in a Changing World (2008); and Mashaw, supra note 1. The concern with clarity of this ‘appealing but elusive concept’ (Bovens, M., ‘Analysing and Assessing Accountability: A Conceptual Framework’, (2007) 13 European Law Journal 447, at 467) is overwhelmingly spread over the literature on accountability. Schedler echoes it: ‘accountability represents an underexplored concept whose meaning remains evasive, whose boundaries are fuzzy, and whose internal structure is confusing.’ (Schedler, A., ‘Conceptualizing Accountability’, in Schedler, A., Diamond, L. and Plattner, M. (eds.), The Self-Restraining State: Power and Accountability in New Democracies (2009), 13). That elusiveness, for example, is what made Dubnick draw the distinction between ‘accountability-the-word’, with all its rhetorical overtones, and ‘accountability-the-concept’. M. Dubnick, ‘Seeking Salvation for Accountability’, (2002) Paper for the 2002 Annual Meeting of the American Political Science Association, August 29– September 1.

5 This dichotomy evokes the basis on which a substantial part of the famous jurisprudential debate between Hart and Fuller was constructed. See Hart, H., ‘Positivism and the Separation of Law and Morals’, (1958) 71 Harvard Law Review 593; Fuller, L., ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, (1958) 71 Harvard Law Review 630.

6 See Dubnick, supra note 4; Dubnick, M., ‘Accountability and the Promise of Performance: in search of the mechanisms’, (2005) 28 Public Performance & Management Review 376.

7 Ferejohn and Keohane have, respectively, furnished a minimalist and a maximalist concept of accountability. For Ferejohn, there are two basic archetypes of accountability: political and legal. The former is practiced through silent and arbitrary voting, a crude choice that does not need to be publicly justified. Election is the main example of such a mechanism. Legal accountability, in turn, consists in a constraint of public reason-giving based on general norms that judges must discharge (J. Ferejohn, ‘Accountability in a Global Context’, (2007) IILJ Working Paper 2007/5 1). Keohane widens the compass and offers a comprehensive picture of eight accountability types. The first four derive from an act of delegation of powers, on the basis of which the delegator has the authority, through various means, to control the delegate. They can be hierarchical; supervisory; electoral; and fiscal. The remaining four types are imbued with what Keohane calls participation. They assign to different actors the possibility of constraining others’ decisions by having leverage, though sometimes short of formal entitlements, in the activities of others. They can be legal, market, peer, and lastly, public reputational. See Keohane, R., ‘The concept of accountability in world politics and the use of force’, (2002) 24 Michigan Journal of International Law 1121; Keohane, R. and Grant, R., ‘Accountability and Abuses of Power in World Politics’, (2005) 99 American Political Science Review 1.

8 For the sake of terminological clarity, it is useful to distinguish between ‘international’ and ‘transnational’ or ‘supra-national’ law even though this distinction is one of degree rather than of kind. Whereas the former captures the traditional horizontal agreements – either bilateral or multilateral – among states, the latter illuminates some thicker modes of regulating states’ behaviour. These terminological choices do not significantly deviate from general usages of the international law literature, despite the linguistic variation that still remain.

9 Philp maintains: ‘avoiding overloading the definition of accountability, should alert us to the multiple ways in which international organisations and their members are, in fact, accountable’ (Philp, M., ‘Delimiting Democratic Accountability’, (2009) 57 Political Studies 28, at 46).

10 See, for example, Bovens and his distinction between accountability as a ‘mechanism’ and as a ‘virtue’ (Bovens, M., ‘Two Concepts of Accountability: Accountability as a Virtue and as a Mechanism’, (2010) 33 West European Politics 946). Philp also claims: ‘we have to be clear about when an accountability relationship exists before we ask whether that relationship satisfies certain other principles or values’ (supra note 9, at 48); Or as Stewart and Kingsbury maintain: ‘demands are made for greater accountability without serious analysis of precisely what it consists in, how it can be achieved, and what its goals are’ (supra note 4, at 10).

11 Schmitter argues: ‘accountability cannot be captured by a single variable due to its “complex dimensionality”’ (‘Political Accountability in “Real-Existing” Democracies: Meaning and Mechanisms’, (2007) Paper presented at the European University Institute, at 19).

12 The exception, for sure, would be a dystopian totalitarian regime, where nothing is left out of the sphere of the political, where the ‘extra-political’ is inconceivable because the respective political culture does not have any default criterion to exclude something from the realm of politics.

13 See Mashaw, supra note 1, at 118.

14 Mashaw is also pointing to such structural commonality when he warns, for example, against ‘overselling’ the dissimilarities between different types of accountability (Ibid., at 130). Philp is also concerned with distinguishing the core, definitional or necessary parts of the concept from its contingent and supplementary components (supra note 9, at 48).

15 ‘Extra-political’ should not be equated with ‘non-political’ or ‘anti-political’, as if some issues were always and necessarily outside any allegedly essential boundaries of politics. Because the sphere of politics fluctuates, some issues that today are extra-political can be politicized tomorrow, and vice-versa. Ian Shapiro advances such insight, by claiming that politics is ‘both nowhere and everywhere’: ‘They are nowhere in that there is no specifiable political realm; . . . Politics are everywhere, however, because no realm of social life is immune from relations of conflict and power’ (Shapiro, I., ‘Optimal Deliberation?’, (2002) 10 The Journal of Political Philosophy 196, at 206).

16 See G. Dines and W. Murphy, ‘SlutWalk is not sexual liberation’, The Guardian, 8 May 2011. A further example thereof is Stuart Mill's identification of the lack of sufficient check on the conduct of men towards women: ‘There is no check but that of opinion, and such men are in general within the reach of no opinion but that of men like themselves’ (Mill, J.S., ‘The Subjection of Women (1869)’, in Collected Works of John Stuart Mill (1984) Vol. XXI, at 323).

17 At the most general normative level, being accountable to others may even be seen as a central feature of a moral life (M. Dubnick, ‘A moral being is an accountable being: Adam Smith and the Ethical Foundations of Accountable Governance’, (2010) Paper for the 68th Annual Meeting of the Midwest Political Science Association, Chicago IL, May 22--25).

18 Schedler also draws the distinction between private and political accountability (supra note 4, at 21).

19 Onora O'Neill raises this question before indicating solutions that combine trust and trustworthiness: ‘In areas of concentrated specialisation and expertise, including medicine, science and biotechnology, how then can inexpert patients, citizens or customers judge the experts’ (O. O'Neill, Autonomy and Trust in Bioethics (2004), 118); Thompson also points, for example, to the role of collegiality in professional accountability (D. Thompson, Restoring Responsibility: Ethics in Government, Business, and Healthcare (2004), 59).

20 A recent example of how a company becomes accountable to investors and shareholders was the debut of Facebook in the financial market by opening its capital: ‘Whether it likes it or not, Facebook will now be accountable to a lot of people who do not share its values’ (B. Stone, ‘Facebook, Wall Street: Friends with Benefits’, Businessweek, 1 February 2012).

21 Onora O'Neill delineates the formal structure that accountability relations share: ‘Systems of accountability are highly varied, but they have a common formal structure. They are used to define, assign and help enforce second-order obligations to account for the performance (or non-performance) of primary or first-order tasks or obligations’ (O. O'Neil, Rethinking Informed Consent in Bioethics (2007), 167).

22 Bovens clarifies: ‘Explanations and justifications are not made in a void, but vis-à-vis a significant other’ (supra note 10, at 951).

23 For Bovens, accountability is supposed to be a ‘reflective discursive encounter between accountor and accountee’ (Ibid., at 953).

24 See Dubnick, supra note 4, at 5.

25 Stewart (supra note 4) and Mashaw (supra note 1), among others, resort to fairly similar formulations of such a structural question to explain accountability.

26 The two poles of an accountability relationship, according to a common terminology, are the ‘power-holder’ and the ‘account-holder’ (see Keohane, R., ‘Global Governance and Democratic Accountability’, in Held, D. and Koenig-Archibugi, M. (eds.), Taming Globalization: Frontiers of Governance (2003), 130). The contrast, however, is somewhat misleading. It insinuates that the former holds power at the expense of the latter. Disempowered account-holders, nonetheless, are no account-holders at all. To be sure, both actors are empowered in distinct ways and to a certain degree. The relationship may, indeed, be asymmetrical. Still, constructing an accountable relationship is to empower a previously disempowered actor, however soft or arguably insufficient that empowerment might be. To avoid this mischaracterization, I will henceforth use the terms ‘accountee’ instead of ‘power-holder’, and keep ‘account-holder’ or ‘accountor’ for the other side of the equation. When appropriate, I will still use ‘power-holder’ if the very question of whether such actor is accountable is uncertain or simply not at stake. But that, again, does not at all mean that the ‘account-holder’ is not a ‘power-holder’ as well.

27 By ‘contingent’ I mean the historical and shifting borders of the realm of politics (Shapiro, supra note 15).

28 ‘General interest’ is admittedly a rather vague and inevitably volatile definition of the realm of politics, but it should suffice for the current purposes. ‘Common good’, ‘collective good’ or ‘public good’, without further qualification, would do no better, because different traditions of thought and different moments of political history would read them in different ways.

29 The idea that a polity lies in the background of political accountability gets more complicated when the very existence of a polity is contestable, like on the supra-national level of governance.

30 On the ‘sense of trust’ as a pre-condition for meaningful accountability, see Philp, supra note 9.

31 The borders may actually be more porous than strict classifications might suggest. Mashaw emphasizes the permeability between different regimes of accountability, which ‘flow and blend into each other’ despite the differences in kind between public governance, market and social accountability (supra note 1, at 127).

32 As Schmitter asserts, the ‘ordinary cycle of accountability’ revolves around ‘exchanges of information, justification and judgment’ (Schmitter, P., ‘The Ambiguous Virtues of Accountability’, (2004) 15 (4)Journal of Democracy 47, at 49). Political accountability, in other words, ‘implies an exchange of responsibilities and potential sanctions between rulers and citizens’ (Ibid., at 47).

33 Bovens, M., Schillemans, T. and Hart, P., ‘Does public accountability work? An assessment tool’, (2008) 86 Public Administration 225, at 227.

34 Schmitter mentions, for example, the accountability mechanisms that may exist in sultanistic autocracies, military dictatorships or even absolute monarchies (supra note 32, at 48). Mashaw also points to a ‘monarchical model of accountability’: ‘Officials were accountable to the monarch and the monarch to God. We know little about how God kept his accounts, but monarchs rapidly developed rudimentary systems of auditing’ (Mashaw, J., ‘Judicial Review of Administrative Action: Reflections on Balancing Political, Managerial and Legal Accountability’, (2005) Revista Direito GV 153, at 155).

35 A power-holder, whoever he happens to be, is hardly exempt from any accountability relationship. This proposition does not, though, equate accountability with every single power relationship. It is not incompatible, thus, with a proposition that contends that there are unaccountable power relationships. The power-holder A, for example, may exercise raw and naked power against the actor B, and this would configure an altogether unaccountable power relationship. It would neither be reflective nor discursive. Still, A would almost certainly be accountable to other actors, even if those other actors were not the ones we wish them to be (neither the ones normative theories recommend).

36 The typologies are multi-coloured. Some important examples of typologies are offered by Schedler (supra note 4), Keohane (supra note 26), Keohane and Grant (supra note 7), Ferejohn (supra note 7), Stewart (supra note 4) and Morgan, B., ‘Technocratic v. Convivial Accountability’, in Dowdle, M. (ed.), Public Accountability: Designs, Dilemmas and Experiences (2006), 243.

37 The idea of ‘co-ordinates’ that I develop here echoes and, to some extent, replicates and expands the use made by Walker, N., ‘Out of Place and Out of Time: Law's Fading Co-Ordinates’, (2010) 14 The Edinburgh Law Review I.

38 Schmitter, for example, is sceptical towards a non-institutionalized form: ‘However complex it may be, political accountability must be institutionalized if it is to work effectively. This means that it has to be embedded in a mutually understood and pre-established set of rules’ (supra note 32, at 48).

39 The mainstream literature on the rule of law explains what these basic qualities are. See, for example, L. Fuller, The Morality of Law (1968); MacCormick, N., ‘The Ethics of Legalism’, (1989) 2 Ratio Juris 2. O'Neill, however, provides significant examples to show that setting the optimal degree of formalization is a controversial enterprise: ‘Formalisation has advantages that are constantly mentioned by its advocates: mutual clarity of expectations, clear performance targets, defined benchmarks of achievement, enhanced accountability. But there is also the danger that more formalised procedures may deepen the distrust they seek to remedy’ (supra note 19, at 130).

40 See Mashaw, supra note 1, at 119.

41 The dichotomy is proposed by Ferejohn (supra note 7). I avoid following this contrast between political accountability (election) and legal accountability (adjudication) because law actually disciplines and institutionalizes both elections and adjudication, however differently. That dichotomy runs the risk of underscoring both the presence of law in elections and the presence of extra-legal elements in adjudication. It seems to me that it helps to obscure rather than clarify.

42 This lies close to the typology proposed by Keohane (supra note 26): on the one hand, accountability would be internal, based on an act of superior delegation, authorization and support; on the other, it would be external, based on participation of those who bear the impact of decisions. Keohane and Grant slightly rephrase the dichotomy into ‘delegation v. participation’ (supra note 7). The World Bank is one of their examples of the simultaneous downstream and upstream dimensions operating at a single institution.

43 To be sure, a sensible perception of the ‘phenomenology of authority’ indicates that a pure top-down pyramidal model usually misses part of the phenomenon. Mashaw reminds of this important feature of power relations when he claims that bureaucratic hierarchies, for example, rather than sheer pyramids, operate through ‘dense networks’ of influence and persuasion (supra note 1, at 123).

44 The concept of horizontal accountability was crucial for G. O'Donnell to single out what genuinely representative democracies had that ‘delegative democracies’ lacked: ‘Delegative democracies rest on the premise that whoever wins election to the presidency is thereby entitled to govern as he or she sees fit, constrained only by the hard facts of existing power relations and by a constitutionally limited term of office’ (‘Delegative Democracy’, (1994) 5 Journal of Democracy 55, at 99). The species of ‘delegative democracies’, by having only the vertical type, falls short of consolidated democracies: ‘In institutionalized democracies, accountability runs not only vertically, making elected officials answerable to the ballot box, but also horizontally, across a network of relatively autonomous powers (i.e., other institutions) that can call into question, and eventually punish, improper ways of discharging the responsibilities of a given official’ (Ibid., at 101).

45 See Keohane, supra note 7, at 1129. Keohane shares Derek Bok's view, according to which individual accountability, rather than making the members of Congress collectively responsible, would expose them to ‘the centrifugal pressures of special interests and constituent groups’.

46 This will vary, of course, according to the kind of electoral and party systems that shape the electoral representation.

47 See Bovens, Schillemans and Hart, supra note 33; Shapiro, M., ‘“Deliberative”, “Independent” Technocracy v. Democratic Politics: Will the Globe Echo the EU?’, (2005) 68 Law and Contemporary Problems 341.

48 This type may be practised, for example, within a technocratic body, in which there is a hierarchical division of labour.

49 This can be seen in the classical accountability relationship between constituents and elected parliamentary representatives, which is usually called ‘electoral accountability’.

50 This evokes the traditional tension between technocracy and democracy and may be seen, for example, in the relationship between regulatory technocrats and the people generally conceived (See Shapiro, supra note 47).

51 Though this type might sound too stylized, it suits our ordinary understanding of the relationship between a legislator (presumably ‘lay’) and a court in charge of judicial review of legislation (the ‘constitutional expert’). Even if one could claim that the legislator is supposed to be no less prepared than judges to handle legal and constitutional matters, as critical accounts on the legitimacy of judicial review have recalled, it is the opposite assumption that one of the mainstream arguments in favour of judicial review of legislation is grounded upon.

52 For Keohane accountability relates to agency, that is, power-holders have significant choices to make, not just superior orders to follow. Therefore, genuine accountability relationships would presumably be closer to the ‘truster-trustee’ rather than the strict ‘principal-agent’ relationship. Keohane has clarified this as follows: ‘Cast in the language of power, an accountability relationship is a relationship in which an actor making a normative claim that it should have influence over another actor actually has such influence; and in which the actor subject to influence has significant discretion’ (supra note 7, at 1125). Philp shares this point: ‘Paradoxically, where the discretion or latitude of the office holder is eliminated in this way, he or she has nothing to explain or justify – nothing to account for!’ (supra note 9, at 37).

53 Philp, supra note 9, at 43.

54 Philp contends: ‘We trust people to do things under their own initiative and discretion and we use accountability for feedback and evaluation, but the accountability is parasitic on that trust’ (Ibid., at 41).

55 These two modes of control in the hands of account-holders (reasoning and voting) can be analogized with the distinction between ‘voice’ and ‘exit’ advanced by Hirschman, A., ‘“Exit, Voice, and Loyalty”: Further Reflections and a Survey of Recent Contributions’, (1980) 58 Health and Society 430. Voice and exit, for Hirschman, are ways for a customer to protest against an economic organization. Keohane also resorted to this distinction in order to exemplify market accountability (supra note 7, at 1131), but the analogy can be further explored in the realm of politics. One should not confuse this distinction, however, with the one between reason-giving and voting proposed by Ferejohn (supra note 7). Ferejohn's account considers reason-giving only as a burden that some non-elected power-holders (especially judges) have to handle and, in that precise sense, as a pattern of reasoning that would enhance accountability. Ferejohn does not emphasize any special role of reason-giving as a means for account-holders themselves to challenge the power-holders (which Hirschman's ‘voice’ would entail). This emphasis, therefore, overlooks a dialogic role that reason-giving can play as an accountability mechanism, and focuses only on a monological angle.

56 Reason-giving, for Schedler, would turn monological power into dialogic, would make ‘both parties speak’. It is therefore ‘opposed not only to mute power but also to unilateral speechless controls of power’ (supra note 4, at 15). There is, for him, only a partial overlap between accountability (to someone, with duty to account) and responsibility (for something): ‘while accountability forces power to enter into a dialogue, the notion of responsibility permits it to remain silent’ (Ibid., at 19). Accountability, thus, goes beyond ‘attributing responsibility’ and comprises the act of ‘giving an account’.

57 Schedler underlines the importance of transparency for accountability. Transparency would tackle the ‘black-box of politics’ and the ‘opacity of power’ (Ibid., at 20). He also reminds, though, that politics may have ‘legitimate realms of secrecy’ (Ibid., at 20). See also Thompson, supra note 19, at 130.

58 It would be misleading to put transparency as a co-ordinate of accountability on the same analytical level of the other co-ordinates. This is so because transparency is actually a specification of the procedural co-ordinate: most of the time, a necessary specification from the normative point of view, but not from the descriptive point of view. After all, there are wicked accountability arrangements that lack transparency and could be criticized for that reason, but that criticism should not fail to realize the very existence of accountability. O'Neill elaborates on the insufficiency of sheer transparency: ‘Since transparency is only a matter of disclosure or dissemination, it may limit secrecy, yet fail to ensure successful communicative transactions with others’ (supra note 21, at 178). And later, she concludes: ‘Speech acts that need not engage with audiences – such as disclosing, distributing, disseminating, or even publishing – do not provide enough for those who seek to place or refuse trust’ (Ibid., at 180).

59 Schmitter considers that the temporal perspective captures the accountability relationship and the ‘rhythms’ of democracy better than the spatial one (vertical and horizontal). For him, the temporal dimension comprises three movements: ‘overture’ (before), ‘intermezzo’ (during) and ‘finale’ (after). (supra note 32, at 54) In another article, he emphasizes the centrality of the temporal perspective: ‘what determines the outcome of “recursive cycles of mutual accountability” may be more a matter of when than where’ (supra note 11, at 14).

60 There is some measure of disagreement in the literature with respect to this temporal dimension. For Keohane and Grant (supra note 7), among others, accountability is chiefly a matter of ex post control. Mashaw, however, asserts that ‘ex post sanctioning is likely to be evidence of a poorly functioning accountability system, not a successful one’. For him, the ‘crucial purpose of accountability is really forward-looking or prophylactic’ (supra note 1, at 132).

61 Keohane and Grant (supra note 7) set out this definition, which has also been adopted by Rubenstein (supra note 2). Bovens also distinguishes three stages, but in a slightly different way. They comprise information, interrogation and judgment (supra note 10, at 952).

62 See Rubenstein, supra note 2, at 618.

63 See Schmitter, supra note 32, at 49.

64 Sanctions may also include the curtailing of budget, the curbing of jurisdiction, among others (see Ferejohn, supra note 7). Although Keohane believes that sanction must be presupposed by an accountability relationship, he has a flexible approach to it. His understanding of accountability of the Supreme Court exemplifies it: ‘The reputations of particular justices rise and fall depending on these evaluations. For justices of the Supreme Court of the United States, a devastating critique of an opinion may surely constitute a sanction’ (supra note 7, at 1134). Mashaw also recognizes the significant range of possible sanctions: ‘sanctions range from removal to simple displeasure, or perhaps ostracism from the inner councils of the ruling elite’ (supra note 1, at 121). For Rubenstein, ‘bad publicity constitutes a sanction in its own right’ (supra note 2, at 626).

65 Like the agents that are deprived of significant ‘potestas’ and heavily depend on ‘auctoritas’ in order to be followed.

66 Schedler problematizes this ‘tight coupling’ between accountability and sanction and argues that, however weaker it might be, accountability can prosper without proper sanction (supra note 4, at 16–17).

67 Rubenstein elaborates on the adequate amount of sanction: ‘the sanction must be neither too mild nor too severe: if is too mild it will function not as an effective deterrent, but rather as an additional cost that the power wielder must bear . . . If the sanction is too severe, it might dissuade power wielders from taking worthwhile risks’ (supra note 2, at 620).

68 One could certainly try, as a rhetorical strategy, to retain the term ‘accountability’ for describing and demanding thicker arrangements. One would evade the risk of legitimating, through using that term, too thin relationships. But, as far as the concept is concerned, it seems coherent to classify as instances of accountability those relationships in which the applicable sanction is too light.

69 For Philp, sanctions are not part of the core concept. This opposite view, for Philp, ‘muddles the object of description’ (supra note 9, at 35).

70 For Stewart, accountability is either thick (with possibility of sanction) or it is something else. Expanding the concept to capture other sorts of relation would damage its ‘integrity and utility’ (supra note 4, at 3 and 9). Keohane and Grant are slightly less demanding. For them, accountability necessarily involves the right of account-holders to judge and punish the power-wielders. Besides, it occurs only after the fact, but can exert some ex ante (supra note 7, at 29–30). Schedler is more flexible. Accountability, for him, has three dimensions – information, justification (answerability) and punishment (sanction) – but they do not have to be fully present for accountability to exist (supra note 4, at 20).

71 Mashaw, for example, draws a comparison between ‘public governance’ and ‘market’ accountability in a way that, however less comprehensively, echoes the co-ordinates here systematized. In the former type, obligations would flow mostly in one direction (unidirectional). It would also be formalized, structured and collective. The latter, in turn, would be decentralized, informal and individualized, and comprise a more co-ordinate structure, based on mutual obligations (supra note 1, at 128).

72 As O'Neill implies, accountability is a second-order phenomenon (supra note 21, at 167).

73 A normative defence of accountable authority implies a notion of legitimacy, a statement of why it has sufficient moral standing to deserve compliance. The relation between accountability and legitimacy, thus, is subtle. Whereas it might be possible to claim that there is some overlap between, for example, the notions of democratic accountability and democratic legitimacy, there is no overlap between the concept of accountability broadly conceived and legitimacy. An institutional design might be democratically legitimate as long as its accountability arrangements (its particular permutation of co-ordinates) pursue the democratic function. This is a common claim of several authors. See, for example, Schmitter, supra note 32, at 49.

74 That is exactly why Philp advances a ‘parsimonious’ or ‘stripped-down’ concept of accountability, so as to distinguish its core from its occasional supplementary ingredients. Not doing that would ‘fail to distinguish between what something is (the nature of the component) and what is necessary for that component to produce a specific result’ (supra note 9, at 32).

75 Accountability, as it has been argued, has a close affinity with a multiplicity of uplifting terms. As Bovens maintains, it would be synonym for several ‘loosely defined political desiderata, such as good governance, transparency, equity, democracy, efficiency, responsiveness, responsibility, and integrity’ (supra note 10, at 946).

76 Stewart, for example, contends that accountability is just one of the three mechanisms of governance, all of which aim, ultimately, to the promotion of participation and responsiveness (supra note 4, at 2).

77 As Schmitter reminds: ‘some of its positive properties may be incompatible with each other or, at the very least, involve complex tradeoffs’ (supra note 11, at 17).

78 Managing rather than solving inevitable tensions is the fate of the institutional designer, as Mashaw has insightfully put. He shows, for example, how the tasks of managerial effectiveness and political responsiveness may become ‘strongly competitive’ (supra note 34, at 160). And he adds: ‘But, this is a design problem that can only be managed, not solved. For, it entails maintaining an appropriate balance among competing forms of accountability’ (Ibid., at 154).

79 The dark side of the normative coin, or the spurious accountability relationships (anti-constitutional, anti-democratic and so forth), will be not elaborated here, but can be taken as the opposite of each of these rationales, what they try to combat. A different negative side of accountability devices, however, is their occasional dysfunctionality, which will be better elaborated below.

80 Bovens, Schillemans and Hart (supra note 33) and Bovens (supra note 10) came up with a slightly similar approach and grasped three different roles that these mechanisms might have: constitutional, democratic and learning.

81 See Schedler, supra note 4, at 19.

82 The constitutionalist project, to be sure, is not only concerned with limits (its defensive or negative side), as others have forcefully shown, but also and firstly with empowerment itself (its constructive and positive aspect). On what can be called ‘positive constitutionalism’, see S. Barber, Welfare and the Constitution (2003); Waldron, J., ‘Constitutionalism: A Skeptical View’, (2010) NYU Public Law & Legal Theory Research Paper Series n. 10–87. I will focus only on the limiting and negative property of ‘constitutional’.

83 A term conventionally used in US administrative law. See Stewart, R.B., ‘The Reformation of American Administrative Law’, (1974) 88 Harvard Law Review 1669; J. Mashaw, ‘Structuring a “Dense Complexity”: Accountability and the Project of Administrative Law’, (2005) Issues in Legal Scholarship, article 4.

84 Inclusion, representation, participation and responsiveness are, among some others, derivative virtues that underlie rhetorical appeals to democracy.

85 Ferejohn (supra note 7), for example, believes that this distance from electoral sources of authority can be compensated by a more stringent duty of reason-giving (like the one courts face), and this would still fit a democratic framework.

86 For a sceptical view of the too quickly assumed ‘promise of performance’ embedded in new reforms of public administration, see Dubnick (supra note 6). The plausible possibility that accountability devices make power more competent does not necessarily lead to the empirical conclusion that power-holders will be actually willing to be held accountable.

87 See Bovens, supra note 10, at 954. This ‘learning dimension of accountability’, for Bovens, co-exists alongside the democratic and constitutional dimensions.

88 Rubenstein highlights the epistemic dimension that springs from the exercise of judgment: ‘The back-and-forth instigated by the power wielder's explanation can be a source of mutual learning and compromise and distinguishes accountability from mechanical enforcement of rigid rules’ (supra note 2, at 619).

89 Mashaw, for example, claims that there is an inherent demand of competence within democratic politics: ‘Indeed, in some significant sense, electoral politics cannot produce responsive government unless it is harnessed to technically competent administration. And incompetence is politically dangerous’ (supra note 34, at 168).

90 As explained earlier, the epistemic promise is here understood as the expectation that accountability arrangements are instrumental, among other things, for producing good decisions.

91 That is, the procedures could be tainted by abuse and lack of transparency, but, at the same time, could deliver a reasonable and defensible output, or vice-versa.

92 There is no need to embark in this tricky theoretical controversy here. For a general explanation of the parallel formal and substantive aspects of democracy and constitutionalism, see Dworkin, R., Constitutionalism and Democracy’, (1995) 3 European Journal of Philosophy 2. One could still claim that, whereas the constitutional and democratic ideals have a substantive ambition of a negative sort (that is, to avoid abuse and impermeability), the substantive aspect of the epistemic expectation would be positive (to find the best answer). This would come closer to what I intend to convey by the epistemic point.

93 For Stewart, in a similar vein, the problem of disregard and the goal of accountability have both a procedural and a substantive aspect: the former is related to fairness – ‘to help ensure that the affected are fairly and appropriately treated in the decision made’; the latter is related to justice – ‘it may not be sufficient to satisfy the procedural regard . . ., if the decision itself treats the affected with manifested injustice.’ For him, this does not make procedure collapse into substance because substantive requirements still provide decision-makers with considerable ‘latitude in striking the balance’ (supra note 4, at 5–6).

94 Or, in Mashaw's words, regimes are ‘regulators of institutional performance’ (supra note 1, at 154).

95 The epistemic promise should not be confused with the distinction between ‘technocratic’ (or ‘expertocratic’) and ‘lay’ authorities, drawn in the previous section. The epistemic mission, generally conceived, can be pursued either through a technocratic or a lay authority, either by experts or non-experts. Its plausibility will depend, for sure, of what is the decisional issue under consideration and the respective institutional arrangement designed to handle it.

96 See Mashaw, supra note 1, at 116.

97 The term ‘populist’ has ambivalent meanings, some ostensibly pejorative and others more neutral and analytical. For an example of the former, see Couso, J., ‘Los desafíos de la democracia constitucional en América Latina: entre la tentación populista y la utopía neoconstitucional’, (2010) Anuario de Derechos Humanos, who describes the ‘populist temptation’ of current presidential regimes in Latin America as a danger of authoritarian regression and personalistic cult of a single leader. For an example of the latter, see Dahl, who contrasts ‘Madisonian’ democracy to what he calls ‘populistic’ democracy, a regime in which ‘majorities have unlimited sovereignty’ (R. Dahl, A Preface to Democratic Theory (2006), at 37). The meaning stipulated here is closer to the latter, although I do not enter the specificities of majority rule.

98 See Keohane, supra note 26, at 15.

99 It would help ‘satisfy disappointed claimants’, to use Mashaw's words (supra note 1, at 141). See also Dubnick, supra note 4, at 5. Although trustworthiness cannot guarantee that actual trust will be earned, it gives good reasons for trust to be deserved by institutions. As O'Neill argues: ‘Good reasons for rejecting blind trust are not good reasons for rejecting intelligent trust’ (supra note 21, at 164). She further argues: ‘Good systems of accountability . . . can improve trustworthiness, and may offer helpful evidence for placing and refusing trust intelligently. But they do not and cannot supersede trust’ (Ibid., at 163).

100 One should not mistake this populist aspect of accountability, however, with the pre-existing trust that should arguably obtain in order for accountability relationship to take hold. For Philp (supra note 9), trust is an underpinning feature of accountability, not the product of it. This tension, however, should not be regarded as a binary ‘chicken-and-egg’ question. Rather, both aspects (namely, trust as a pre-condition, or trust as a product) can be seen as mutually reinforcing, as both cause and consequence.

101 As Mashaw contends: ‘No institution really serves only one purpose or goal, and, therefore, no institution should be expected to be responsive to only one form of accountability regime’ (supra note 1, at 153).

102 Ibid., at 130 and 147.

103 There is a significant literature on the inconsistencies, distortions or excesses of accountability arrangements. See Bovens (supra note 4 and supra note 10) and two works of Koppell, J.G.S., ‘Pathologies of Accountability: ICANN and the Challenge of “Multiple Accountabilities Disorder”’, (2005) 65 Public Administration Review 94, and World Rule: Accountability, Legitimacy, and the Design of Global Governance (2010). Dysfunctionality would refer to an arrangement of those expected functions that cannot be minimally met because of the wrong calibration of each chosen device.

104 As Bovens claims: ‘more accountability does not necessarily produce better government. Accountability overkill discourages innovative and entrepreneurial behaviour in public managers’ (supra note 10, at 953). See also Koppell, supra note 103, on ‘multiple accountability disorder’.

105 Among the decisional flaws that might emerge, authors pay particular attention to ‘tunnel vision’, ‘ritualization’, ‘defensive routines’, ‘mutual stereotyping’ and ‘hostile behaviour’ (Bovens, Schillemans and Hart, supra note 33, at 228; Bovens, supra note 10, at 954). A traditional pathology is the overemphasis on conformity to strict rules, which reduces discretionary judgment. This is a typical epistemic dysfunction: the decision-maker prioritizes the avoidance of punishment at the expense of making creative judgments, and instead of thinking on what the good decision is, she gets primarily concerned with minimizing the risk of being penalized.

106 Or, alternatively, ‘radial concept’, as Schedler would prefer. Schedler explains: ‘They are continuous variables that show up to different degrees, with varying mixes and emphases’ (supra note 4, at 17).

107 The institutional purpose logically precedes, of course, the question of how accountable this institution should be. As Mashaw remarks: ‘much of the dispute about accountability is a dispute about what particular institutions are meant to do, not how accountable they are in the doing of it’ (supra note 1, at 117). For him, the question of how accountable an institution should be is ‘parasitic on beliefs about the true purposes of the program’ (Ibid., at 155).

108 As Schmitter puts it: ‘some of its “positive properties” may be incompatible with each other, or at least may involve complex tradeoffs. High levels of individual participation may not be so benevolently linked to subsequent attention and sense of obligation’ (supra note 32, at 56).

109 See Mashaw, supra note 1, at 116.

110 See Bovens, Schillemans and Hart, supra note 33, at 226: ‘It is an evocative concept that is all too easily used in political discourse and policy documents because it conveys an image of transparency and trustworthiness. Moreover, “accountability” often serves as a conceptual umbrella that covers various other, often highly contested, concepts’.

111 See Schmitter, supra note 32, at 48. Similarly, for Keohane, ‘not all forms of accountability are intrinsically democratic. It is an essential aspect of democracy, but it exists, in some forms, in all political regimes’ (supra note 7, at 1131). Rubenstein gives a similar example: ‘it is perfectly comprehensible to say that Hitler held his underlings accountable for failing to follow Nazi protocol’ (supra note 2, at 618).

112 That is what Mashaw means when he calls accountability a ‘protean concept’, a ‘placeholder for multiple contemporary anxieties’ (supra note 1, at 115).

113 Philp has forcefully urged on the drawing of this distinction: ‘whether (and in what forms) an accountability relationship exists is a descriptive claim; whether we want more or less of it, or different types or additional dimensions of it, will be driven by normative commitments, and we should not run the two together’ (supra note 9, at 32).

* LLM and PhD in Public International Law, University of Edinburgh. Post-doctoral Fellow at the International Relations Institute, University of São Paulo []. I owe special thanks to Conrado Hübner Mendes for sharing his views on the topic. I would also like to thank the reviewers for their helpful comments on this article. Finally, I would like to acknowledge the institutional support received from FAPESP (Fundação de Amparo à Pesquisa do Estado de São Paulo).

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Leiden Journal of International Law
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