Democracy and Globalization

Over time, globalization has deeply affected western liberal democracies, impairing their social fabric and undermining their legal and political foundations. Such an impact can, however, be wholly appreciated only if the nature of those democracies is first understood. With this aim in view, in this chapter a genealogy of the concept of liberal democracy is outlined and its heterogeneous character, resulting from the historical encounter of the distinct traditions of liberalism and democracy, is underscored. As a result, liberal democracy emerges as a compromise which globalization has now put under severe strain. More specifically, in this perspective globalization represents an outgrowth of the liberal, individualistic component of that compromise which has largely subverted—from the inside, as it were—the balance on which liberal democracy rested. This has driven the democratic elements in the compromise to seek new outlets to voice their concerns and claim their interests. No matter how much at odds with the liberal-democratic tradition, so called “populism” appears to be one of those outlets. If so, populism should be regarded as a still “democratic” symptom of an issue that, due to its largely unprecedented nature, now requires new measures to be addressed.

Global law is said to be the paradigmatic case for a law beyond democracies because it transcends the veil of the national state. At the same time, this transcendence initiates a search for adequate representations of legitimacy beyond the relatively stable frame of sovereignty. In legal and philosophical discussions on the legitimacy conceptions for a new global order, the concept of “democracy” takes a central place. Yet, this raises the question how are we able to conceptualize democracy without the clear territorial frontiers that the national state had to offer. This article surveys of the use of democratic vocabulary in theoretical sketches of global law. It aims to show that in these debates there is no clear unified concept of democracy. Rather, it argues that all uses of democratic vocabulary in the law beyond the state exhibit certain “blind spots” which render it difficult to associate the use of the term democracy with the qualified term in the political theory of the nation state.

The analytical framework outlined in this chapter assumes that the character and the scope of states are partly determined by the technological environment in which they exist. If the invention of gunpowder, railways and internal combustion engines have led to fundamental transformations of the way communities are organized, then it would be outlandish to assume that digitization will leave the nation-state within which it unfolds essentially unchanged. Thus, our analytical framework attempts to assess the impact of digitization on public law (and therewith on the nature of the state) by developing an understanding of the state as a means to a transaction cost problem. According to this understanding, the state is a cluster of institutions whose continued existence could not be explained if there were no transaction costs. Digitization, according to this approach, is a driver for structural changes in transaction costs. The strength of this approach lies in its ability to encompass all fields of regulation and all technologies, which are summarised under the collective term “digitization”, in a coherent analysis. The insights of this approach will also be transferable to the jurisprudential and policy-oriented impact assessment of new and unknown technologies and their applications.

This contribution deals with state sovereignty over Internet content regulation at the eve of the 4th industrial revolution. The author argues that the territorial state has taken a central role in regulating Internet content spread on international Internet platforms. The increasing body of state regulation has led to conflicting norms, authorities, and interest. Some state regulation has extraterritorial effects limiting the sovereignty of other states to regulate internet content to their liking. This raises questions about what ‘sovereignty over the Internet’ means. This contribution explores what the role of the state should be in regulating Internet content. Departing from what is often referred to as Westphalian sovereignty, the author argues that this conception of sovereignty offers clarity of what regulation is authoritative. Westphalian sovereignty offers a territorial delineation of rules and authority. Westphalian sovereignty also enables political communities to establish their own rules appropriate to their situation without external interference. Westphalian sovereignty, in other words, offers a pluralistic account of Internet content regulation. On the Internet, a clear delineation in different jurisdictions is, however, not easy to be made. Therefore, the author discusses seven different models of Internet content regulation that take the global nature of the Internet into account. The models discussed vary from no state intervention at all to far-reaching state control over the Internet resulting in fragmentation of the Internet in local networks to ensure the effectivity of state regulation. In discussing these models, the relationship between different states is discussed but also the relationship between state- and private actors require attention. The author reviews propositions to bring Internet content regulation under the control of international organisations such as the United Nations. As this contribution shows, human rights law offer only so-far direction in regulating Internet content. The legal and cultural norms on what is perceived acceptable on the Internet differs between jurisdictions. Fragmentation of the Internet in national networks is the ‘most Westphalian’ solution to conflicts arising between regulation of different states. Requiring Internet platforms to ‘align’ their policies to the jurisdiction where they offer their services to users offers the best trade-off between the unique tenets of Westphalian sovereignty and the specific features of the Internet. There is, however, a downside. Different states may enact different—and even conflicting—norms which may lead to a patchwork of legislation. Because Internet platforms often issue their community guidelines internationally, it is almost impossible for Internet platforms to abide by all national laws. In regulating Internet platforms, the author suggests that cooperation between states—harmonising the law that regulates Internet content—may offer a solution. This contribution also emphasises that state laws should not be enacted lightly and that it must be questioned how state regulation impact the sovereignty of other states.

In the age of digitalization and globalization, the issue of how ‘fake news’ affects democracy has attracted attention. Some governments have begun to regulate disinformation, but the tension between these measures and freedom of speech, which is the cornerstone of a democratic society, raises concerns. This chapter aims to show that the approach of militant democracy helps analyse the dilemma of disinformation regulation. In this perspective, I use Taiwan, a democracy that is facing the challenge of the ‘China Factor’, as a case study to understand the development and issues of disinformation regulation. This study aims to use the example of Taiwan to illustrate the lessons that militant democracy can impart to democracies dealing with disinformation.

The theory of militant democracy is based on Weimar Germany’s experience of ineffectually trying to fight an antidemocratic enemy. Some democratic governments adopted this militant attitude in their legal system, as shown by the German Basic Law. On the grounds of the defence of democracy, some freedoms were restricted. However, the development of militant democracy also emphasizes that the design of these legal tools must be humble, and the identification of the ‘enemy’, as well as the judicial review mechanism, must be prudent. In this chapter, I propose that, if a threat to democracy caused by disinformation is identified, the theory of militant democracy can provide some guidance on how the government should deal with disinformation.

By introducing the background of Taiwan’s democratic development, I aim to suggest that we should resort to the perspective of militant democracy in the discussion of Taiwan’s disinformation issue. Then, the chapter goes on to outline the government’s strategy. In addition to the overall strategy, several provisions of specific laws are introduced. However, this study also points out controversies concerning these regulative measures, including the basis of intervention, reviewers, review standards, and possible impacts from the perspective of the democratization process of Taiwan. It then reviews the regulatory struggle from the perspective of militant democracy and makes suggestions regarding legal certainty as well as the scope and means of disinformation regulation in Taiwan.

In this study, I argue that, from the perspective of militant democracy, it may be feasible—but dangerous—to use democratic methods to regulate speech and protect democracy. Governments must use legal tools cautiously, remembering that these regulations are restrictions on freedom of speech which, in addition, can be combined with soft measures—such as encouraging civil fact-checking mechanisms and promoting related education and training—to assist the positive development of the speech market. Disinformation is currently a serious threat to various democracies, and the case of Taiwan should be of value in this discussion.

In recent years, one of the most relevant issues in political and legal philosophy has been the relationship between democratic regimes and social media. This is because it has become clear that platforms such as Facebook and Twitter have come to play a determining role in the way politics is being handled in liberal democracies.

This chapter analyzes this relationship based on the Brazilian presidential elections of 2018. Brazil is one of the largest democracies in the world, whose population actively participates in Facebook, Twitter and WhatsApp.

Some problematic effects of social media can be pointed out: they favor the dissemination of false news and extreme visions, undermining democratic coexistence; people start to live in “bubbles”, to experience “realities” increasingly distant and to communicate less, which generates polarization. The formation of these “virtual ghettos” has drastically reduced the possibility of dialogue with differently minded people and the opportunity to perceive a common reality. To what extent could all this compromise the health of democratic regimes?

The Internet’s controversial nature accentuates the need to incorporate useful methods of analysis. Examining how the Internet’s core power structures are built and behave is a surprisingly complex endeavor. This paper explores the Spanish Act 3/2018, December 5, Data Protection Regulation and Digital Rights and an amendment, which allowed political parties to use personal data obtained from web pages and other digital open sources to carry out political activities in the electoral campaigns. Attorneys and NGOs denounced this regulation that helped political parties to profile citizens depending on their ideologies. Political parties could carry out practices like those of Cambridge Analytica—a former British-based data corporation accused of having collected the data of millions of Facebook users without their permission to hit floating voters in the US with pro-Trump adverts. Finally, the Spanish Constitutional Court ruled that such practices could lead to ideological profiling of citizens, which would undermine the very foundations of the Constitution and democracy. The decision of the Spanish Constitutional Court that unanimously declared contrary to the Constitution and void section 1 of art. 58 bis of the Election Law put a limit on politicians’ attempts to erode democracy. In this case, the rule of law was safeguarded and the individual rights saved. The fact is that the possibilities technology provides situate us within a web of knowingly-constructed power relationships which law cannot afford to ignore. The paper aims to analyze the Spanish act in order to lay bare the conceptual roots of the tension between democracy and globalization as well as the legal and political impact of the Internet. An honest debate regarding what exactly we expect out of the Internet has become of great urgency; we must submit the Internet to a real, participative, democratic process—something which has yet to occur. What do we stand to gain? And, perhaps more importantly, what do we stand to lose? Will limits also be imposed on private corporations in favor of basic rights? What is actually happening with democracy and human rights? These are questions that have very real repercussions for us all. When we devote too much of our time and attention to our screens, we may be losing sight of our immediate environment, thereby significantly hampering our ability to take advantage of the opportunities that arise.

Public and private standards are two different governance systems for the global agro-food system. The public standards are set by so called three sisters, the Codex Alimentarius Commission, the World Organisation for Animal Health and International Plant Protection Convention. Private standards are set by a wide variety of private organisations. This chapter asks the question of where the different sets of standards gain their legitimacy from and focus on participation as a way to create legitimacy. It finds that the three international organisations provide more or less transparent procedure to set their standards but a democratically control or election of the experts in the drafting committees is missing. Additionally favours the institutional setup of the organisations some interests, especially less and least developed countries and small-scale producers have difficulties to get their voice heard. So there is room for improvement. Concerning private voluntary standards the findings are also that improvement is needed. Due to the variety of different voluntary private standards a single finding apart from the fact, that also these kind of standards are not set by democratically elected and controlled bodies. The standard-setting bodies differ widely between single corporations and multi-stakeholder-initiatives. The private voluntary standards system provides options that can create meaningful participation, in particular because it can tackle issues that the WTO does not regulate such as environmental and social aspects of production and allows procedures to bring all relevant stakeholders together. However, the voluntary private system has also some flaws, mainly that it depends on the willingness of powerful corporations to improve the participation in the system. In the end, I argue that both governance systems can complement each other, but much improvement is needed in both systems to come to well-functioning solution.

This chapter focuses on the role of experts in creating regulations and policies on the global level. The questions that should be answered are what role do experts actually play, what do they represent, how are they elected, and how accountable are they. The analysis will start by presenting M. Foucault’s and D. Kennedy’s arguments regarding knowledge and the role of experts. It will be argued that experts not only represent ‘knowledge’ but also different intuitions and presumptions. They are subject to various institutional pressures, to interests combined with values and to the politics of daily life. We should be aware of that and to see that the dichotomy of knowledge and politics collapses, that there is no longer pure knowledge that is detached from politics. Unfortunately we are not aware of that, especially when experts use the language that supports the outcome that is desired. In effect, they preserve the private law actors-public law actors dichotomy, because it serves, for example, the interests of multinational corporations, not to expand the scope of their responsibility. In the light of this we can say that changing our understanding of knowledge should also change our understanding of law as separate from politics, as mirroring a reality thanks to those that know best. With this in mind, we can start to look for better ways of holding experts accountable for what they do and to try to ensure transparency in the process of the creation of regulation and policy formation.

From climate change to digitalisation, from pandemics to political polarization, many globally felt phenomena create unprecedented needs for scientific solutions and technical expertise in decision-making. However, despite the undeniable importance of expert knowledge in a complex world, this chapter argues that for democratic institutions to function, the plurality of particular viewpoints which arise in the concrete life of citizens must be given its due share in political activity. Taking its cue and inspiration from such political philosophers as Hannah Arendt, Leo Strauss, and Michael Oakeshott, this chapter attempts to outline a spectrum of ‘common sense’, or a sphere of practical, non-scientific knowledge as opposed to technical, scientific knowledge. Moreover, the chapter problematizes the power of expert specialization by arguing that overt reliance on experts in modern society may unduly favour the latter sort of knowledge—that is, abstract, technical knowledge—at the expense of practical, or concrete, knowledge. Finally, taking this notion a step further, the chapter suggests that technical knowledge, being based on the idea of scientific progress, may lead decision-makers to inadvertently favour reform, as opposed to preservation, as a course of political action.