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The Circumstances of Democracy: an Investigation of Global Constitutionalist Scholarship

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The Circumstances of Democracy: an Investigation of Global Constitutionalist Scholarship Durham E-Theses The Circumstances of Democracy: An Investigation of Global Constitutionalist Scholarship HOUGHTON, RUTH,ALICE How to cite: HOUGHTON, RUTH,ALICE (2018) The Circumstances of Democracy: An Investigation of Global Constitutionalist Scholarship, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/12539/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 The Circumstances of Democracy: An Investigation of Global Constitutionalist Scholarship Ruth Alice Houghton A thesis presented for the degree of Doctor of Philosophy Durham Law School University of Durham October 2017 1 The Circumstances of Democracy: An Investigation of Global Constitutionalist Scholarship Ruth Alice Houghton Abstract A conceptual understanding of democracy is missing from global constitutionalist discourse. Whilst there are heated debates on the plausibility of transferring democracy to governance systems beyond the state, the discourse lacks grounding in democratic theory. There are discussions on improving participatory or deliberative processes and the mechanisms of accountability, but without further reflection on what makes these processes and mechanisms democratic, the global constitutionalist literature on democratisation falls short of striving towards democracy. The current debate on democracy spans across two waves of global constitutionalist thought. The first is an organisational wave, which builds on international legal frameworks, and the second is a principled wave that takes theories of constitutionalism as its starting point. The thesis examines the approach to democracy in international legal scholarship and the two waves of global constitutionalist literature, to expose the fragmented nature of the current debates. In response to this fragmentation, this thesis directs the scholarship towards democratic theory as an alternative starting point, whilst also demonstrating the importance of engaging with the relationship between constitutionalism and democracy. This is done by using a new matrix, the Circumstances of Democracy (the Who, What, When, Where and How), which builds on democratic theory to explore the components of democracy. Current global constitutionalist approaches inconsistently prioritise certain components and sidestep others, constructing mere proxies for democracy. Using the Circumstances of Democracy ensures that all the components are considered. Ultimately, this thesis redirects the global constitutionalist literature towards the concept of democracy. 3 Contents The Circumstances of Democracy: An Investigation of Global Constitutionalist Scholarship ................................................................................................................... 3 Abstract ........................................................................................................................ 3 Table of Cases .............................................................................................................. 7 Table of Statutes ........................................................................................................... 7 Table of International Legal Instruments ....................................................................... 7 List of Abbreviations .................................................................................................... 10 Statement of Copyright ............................................................................................... 11 Acknowledgements ..................................................................................................... 12 Chapter 1: Introduction ............................................................................................... 13 1.1 Democracy in Global Constitutionalist Scholarship ....................................... 13 1.2 Research Question ....................................................................................... 21 1.3 Methodology ................................................................................................. 22 1.4 Structure of the Thesis ...................................................................................... 26 1.5 Preliminary Issues ............................................................................................. 31 1.5.1 Demos, The People, The Nation: ascertaining the people and their power in multi-disciplinary scholarship ............................................................................... 31 1.5.2 Constitutionalism, Constitutionalisation and Constitutional .......................... 36 1.5.3 Global Constitutionalist Scholarship ............................................................ 38 1.6 Conclusion......................................................................................................... 45 Chapter 2: The Circumstances of Democracy ............................................................. 47 2.1 Introduction........................................................................................................ 47 2.2 Democracy and Constitutionalism ..................................................................... 50 2.2.1 The Relationship between democracy and constitutionalism: Tension or Co- original? ............................................................................................................... 52 2.2.2 Constituent Power and Democracy ............................................................. 59 2.3 The Circumstances of Democracy ..................................................................... 68 2.3.1 How the Circumstances of Democracy Work .............................................. 75 2.3.2 Who ............................................................................................................ 80 2.3.3 What ........................................................................................................... 91 2.3.4 When .......................................................................................................... 97 2.3.5 Where ....................................................................................................... 103 2.4 How ................................................................................................................. 109 2.4.1 Accountability ............................................................................................ 110 2.4.2 Representation .......................................................................................... 112 2.4.3 Participation .............................................................................................. 115 2.5 Conclusion....................................................................................................... 118 4 Chapter 3: International Legal Scholarship and Democracy ...................................... 123 3.1 Introduction ..................................................................................................... 123 3.2 International Legal Scholarship and Democracy .............................................. 126 3.3 The Circumstances of Democracy and International Legal Scholarship .......... 130 3.3.1 Who .......................................................................................................... 130 3.3.2 What ......................................................................................................... 140 3.4 Conclusion ...................................................................................................... 153 Chapter 4: Democracy in the Organisational Wave of Global Constitutionalism ........ 155 4.1 Introduction ..................................................................................................... 155 4.2 Aspects of Current Discourse in the Organisational Wave ............................... 159 4.2.1 Disciplinary Challenges ............................................................................. 159 4.2.2 The Legitimacy Deficit ............................................................................... 174 4.3 The Circumstances of Democracy ................................................................... 177 4.3.1 Who .......................................................................................................... 177 4.3.2 What ......................................................................................................... 191 4.3.3 When ........................................................................................................ 196 4.3.5 How .......................................................................................................... 207 4.4 Chapter Conclusion ......................................................................................... 213 Chapter 5: Global Constitutionalism and Democracy: A Principled Approach ........... 217 5.1 Introduction
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