Evaluating Transnational NGOs: Legitimacy, Accountability, Representation

Evaluating Transnational NGOs

Also by Jens Steffek EMBEDDED LIBERALISM AND ITS CRITICS: Justifying Global Governance in the American Century LEGITIMACY IN AN AGE OF GLOBAL POLITICS (edited with Achim Hurrelmann and Steffen Schneider) CIVIL SOCIETY PARTICIPATION IN EUROPEAN AND GLOBAL GOVERNANCE: A Cure for the Democratic Deficit? (edited with Claudia Kissling and Patrizia Nanz)

Evaluating Transnational NGOs Legitimacy, Accountability, Representation Edited by

Jens Steffek Professor, Technische Universität Darmstadt, Germany and

Kristina Hahn Senior Research Fellow, Research Centre ‘Transformations of the State’, University of Bremen, Germany

Introduction, selection and editorial matter © Jens Steffek and Kristina Hahn 2010 Individual chapters © contributors 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2010 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–22871–9

hardback

This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Evaluating transnational NGOs : legitimacy, accountability, representation / edited by Jens Steffek, Kristina Hahn. p. cm. Includes bibliographical references and index. ISBN 978–0–230–22871–9 (hardback) 1. Non-governmental organizations. 2. International agencies. I. Steffek, Jens. II. Hahn, Kristina, 1975– JZ4841.E93 2010 341.2—dc22 2009048540 10 9 8 7 6 5 4 3 2 1 19 18 17 16 15 14 13 12 11 10 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents List of Figures

vii

List of Tables

viii

Acknowledgements

ix

Notes on Contributors

x

List of Abbreviations

xii

1 Introduction: Transnational NGOs and Legitimacy, Accountability, Representation Jens Steffek and Kristina Hahn

1

Part I NGO Legitimacy 2 The Debate on NGOs’ Legitimacy: What Can We Learn from the Classics? Lutz Schrader and Tobias Denskus

29

3 Legitimating INGO Advocacy: The Case of Internal Democracies Darren Halpin and Peter McLaverty

55

4 The Link between Standard-Setting NGOs’ Legitimacy and Effectiveness: An Exploration of Social Mechanisms Marianne Beisheim and Klaus Dingwerth

74

5 Assessing the Democratic Legitimacy of Transnational CSOs: Five Criteria Jens Steffek, Ralf Bendrath, Simon Dalferth, Kristina Hahn, Martina Piewitt and Meike Rodekamp

100

Part II NGO Accountability 6 These Pages Have Been Regulated for You: Issues Arising from the Governance of Markets by NGOs Jem Bendell, Phyllida Jay and Mark Bendell 7 Accountability 2.0 – In Search for a New Approach to International Non-Governmental Organisations’ Accountability Marek Havrda and Petr Kutílek v

129

157

vi Contents

Part III

Representation through NGOs?

8 Representing the People? NGOs in International Negotiations Tanja Brühl

181

9 Regulating NGO Participation in the EU; a De-Facto Accreditation System Built on ‘Representativeness’? Justin Greenwood

200

10 NGOs’ Power of Advocacy: The Construction of Identities in UN Counter-Human Trafficking Policies Kristina Hahn

220

Part IV Conclusions 11 Evaluating NGOs: A Practitioner’s Perspective Regula Heggli

245

12 Evaluating NGOs: Prospects for Academic Analysis Jens Steffek and Kristina Hahn

257

Index

265

List of Figures 4.1

From procedural legitimacy to effectiveness

5.1

CSOs as transmission belt between IOs, a global citizenry and the public sphere

103

Five elements of CSO legitimacy

117

5.2

vii

78

List of Tables 3.1 Legitimating advocacy

63

3.2 What would be gained/lost by exclusion of undemocratic INGOs?

69

4.1 Mechanisms that link legitimacy and success of private governance

79

4.2 GRI reports and adherence level by participation level

87

10.1 Typology – NGOs speaking as advocates for others

223

11.1 Features of representation and solidarity groups as distinguished by Halpin and McLaverty (Chapter 3)

254

viii

Acknowledgements The idea of publishing this volume originated at an expert workshop on the ‘Legitimacy and Accountability of NGOs in International Governance’ that we organised at the University of Bremen in October 2007. Our initial plan was to just bring together practitioners and academics from a variety of disciplinary backgrounds for discussion, and not to publish the papers tabled at that meeting. In our debate over the intertwined problems of NGO legitimacy, accountability and representation we realised, however, that a good overview volume on these issues was missing from the literature, and we embarked on this book project. In the end, not all participants of the Bremen workshop were able to contribute to this volume. We therefore wish to express our gratitude to the participants who are not represented here by their own contributions but who shared their ideas and experience with us: Anne Bichsel, Vivienne Collingwood, Wolfgang van den Daele, Marcia Grimes, Thorsten Hüller, Claudia Kissling, Beate Kohler and Johannes Moes. We also wish to thank our student assistants Sven Böhling and Clemens Haug for their invaluable help in preparing the workshop, and the Bremen International Graduate School of Social Sciences (BIGSSS) for providing the infrastructure for the event. We are also indebted to an anonymous reviewer for constructive advice on the book proposal. Viktoria Zipper has helped us greatly in preparing the final manuscript. The publication of this volume is part of our ongoing research project on ‘Legitimation and Participation in International Organisations’ at the Collaborative Research Centre ‘Transformations of the State’ at the University of Bremen. This centre is generously funded by the Deutsche Forschungsgemeinschaft (German Research Foundation) whose financial support is gratefully acknowledged. Bremen, August 2009 Jens Steffek and Kristina Hahn

ix

Notes on Contributors Marianne Beisheim is Assistant Professor at the Otto-Suhr-Institut für Politikwissenschaft, Freie Universität Berlin. Jem Bendell is Adjunct Associate Professor at Griffith University Business School (Australia) and Visiting Fellow at the UN Research Institute for Social Development. Mark Bendell is Senior Lecturer in the Department of Social and Communication Studies, University of Chester. Ralf Bendrath is Policy Advisor on civil liberties and privacy for a MEP at the European Parliament. Tanja Brühl is Professor of International Relations at the University of Frankfurt a. M. Simon Dalferth is Social Science Advisor for the Eurydice Network in Brussels. Tobias Denskus is a Ph.D. student at the Institute of Development Studies, University of Sussex. Klaus Dingwerth is Assistant Professor of International Relations at the University of Bremen and Associate Fellow with the international Global Governance Project (www.glogov.org). Justin Greenwood is Professor of European Public Policy at the Robert Gordon University, Aberdeen (UK) and a visiting professor at the College of Europe. Kristina Hahn is Senior Research Fellow at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Darren Halpin is Reader in the Department of Public Policy, Robert Gordon University, Aberdeen (UK). Marek Havrda is the Chairman at INstrategy, a Prague-based NGO, and Acting Director at Respekt Institute, an independent think-tank in the Czech Republic. Regula Heggli was Coordinator of the EU Civil Society Contact Group (www.act4europe.org) from November 2006 to January 2009. x

Notes on Contributors xi

Phyllida Jay is a doctoral candidate at the Department of Anthropology, University College London. Petr Kutilek is Director of Programme Development at the Respekt Institut in Prague, Czech Republic. Peter McLaverty is Reader in the Department of Public Policy, Robert Gordon University, Aberdeen (UK). Martina Piewitt is Research Associate at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Meike Rodekamp is Research Associate at the Collaborative Research Centre ‘Transformations of the State’, University of Bremen. Lutz Schrader is Senior Research Fellow at the Institute for Peace and Democracy, Open University of Hagen. Jens Steffek is Professor of Transnational Governance at Technische Universität Darmstadt, Germany.

List of Abbreviations AAMA

American Apparel Manufacturers Association

AEI

American Enterprise Institute

AI

Amnesty International

CATW

Coalition Against Trafficking in Women

CCC

Clean Clothes Campaign

CEDAW

Convention on the Elimination of all Forms of Discrimination Against Women

CERES

Coalition for Environmentally Responsible Economies

CONCORD

European NGO Confederation for Relief and Development

CONECCS

Consultation, the European Commission and Civil Society (EU)

CSO

Civil Society Organisation

CSR

Corporate Social Responsibility

DG

Directorate General (European Commission)

ECAS

European Citizen Action Service

ECOSOC

Economic and Social Council (UN)

EEB

European Environmental Bureau

ETI

European Transparency Initiative

ETSI

European Telecommunications Standards Institute

EU

European Union

FAO

Food and Agriculture Organisation of the United Nations

FSC

Forest Stewardship Council

GAATW

Global Alliance Against Traffic in Women

GATS

General Agreement of Trade in Services (WTO)

GMIES

Salvadoran Independent Monitoring Group

GPPI

Global Public Policy Institute

GRI

Global Reporting Initiative xii

List of Abbreviations xiii

HRC

Human Rights Caucus

IASC

International Accounting Standards Committee

IASB

International Accounting Standards Board

ICANN

Internet Corporation for Assigned Names and Numbers

ICC

International Chamber of Commerce International Criminal Court

ICFTU

International Confederation of Free Trade Unions

ICPR

International Committee for Prostitutes’ Rights

IFOAM

International Federation of Organic Agricultural Movements

IFRC

International Federation or Red Cross and Red Crescent Societies

IGO

International Governmental Organisation

IHRN

International Human Rights Network

IMF

International Monetary Fund

INGO

International Non-Governmental Organisation

IO

International Organisation

IR

International Relations

ISEAL

International Social and Ethical Accreditation and Labelling

ISO

International Organisation for Standardisation

MSC

Marine Stewardship Council

MWG

Measurement Working Group (GRI)

NCVO

National Council for Voluntary Organisations (UK)

NGLS

Non-Governmental Liaison Service (UN)

NGO

Non-Governmental Organisation

NSWP

Network of Sex Work Projects

OECD

Organisation for Economic Co-Operation and Development

OI

Oxfam International

OS

Organisational Stakeholders (GRI)

PCNC

Philippine Council for NGO Certification

Res.

Resolution

xiv List of Abbreviations

SAI

Social Accountability International

SFPs

Structured Feedback Processes (GRI)

TBT

Technical Barriers to Trade

UK

United Kingdom

UN

United Nations

UNEP

United Nations Environment Programme

UNESCO

United Nations Educational, Scientific and Cultural Organisation

US

United States of America

WPG

White Paper on Governance (EU)

WRAP

Worldwide Responsible Accredited Production

WTO

World Trade Organisation

WWF

World Wide Fund For Nature

1 Introduction: Transnational NGOs and Legitimacy, Accountability, Representation Jens Steffek and Kristina Hahn

As non-governmental organisations (NGOs)1 are playing an increasingly important role in international governance, their legitimacy and accountability have become issues of concern to academic researchers, public commentators and activists alike. While early academic studies on the influence of NGOs in world politics saw them as being – at least on some issues – ‘the conscience of the world’ (Willets, 1996, p. 11), attitudes towards these organisations have become much more sceptical. Some empirical examples may illustrate this trend. In 2007, six collaborators of the French humanitarian NGO ‘L’Arche de Zoé’ were arrested in Chad as they were about to put 103 children on a flight to France. They were charged with child abduction and sentenced to eight years hard labour by a Chadian court for the attempted airlift. Following intense diplomatic interaction with France, the President of Chad pardoned them in 2008. The NGO staff argued that the children they were attempting to ‘rescue’ were from the war-torn Darfur region in Sudan, and that they were orphans. However, officials of international aid organisations who investigated the case found most of the children to be Chadian and to have at least one living parent. The French government and other humanitarian NGOs publicly criticised the action by ‘L’Arche de Zoé’ as illegal, irresponsible and amateurish. NGO scandals have, however, not only involved small and dubious organisations such as ‘L’Arche de Zoé’. Some of the highly professionalised transnational NGO giants have also received harsh public criticism for their behaviour. The ‘Brent Spar’ affair is one infamous case that revolved around a disused oil storage platform that the multinational company Shell intended to sink in the North Atlantic in 1995. Greenpeace launched a major campaign against the disposal of the floating storage buoy, citing enormous amounts of toxic residues in its 1

2 Introduction

tanks. It later had to admit, however, that it had grossly exaggerated the amount of pollutants left in Brent Spar, while the data furnished by Shell were by and large accurate. Although the campaign was a political success in that the sinking of oil platforms and storages buoys was stopped in the North Atlantic region, the affair was a severe setback for Greenpeace, both in terms of lost reputation and donations. Transnational NGOs thrive on their noble goals and incorruptible expertise. That reputation is put at risk by public reports of misdemeanours and failure to live up to the high moral standards that they propagate. Over the last few years, many NGOs have become aware of these challenges and have reacted accordingly, formulating codes of conduct or best practice. In June 2006, for example, 11 globally active NGOs launched a joint accountability charter.2 NGOs that subscribe to the charter commit themselves to following principles such as independence from specific governments and the business sector, nondiscrimination, responsible advocacy, good governance, and transparency. Among the signatories are a number of well-known transnational NGOs, such as Oxfam, Amnesty International, and Greenpeace. Moreover, demands with regard to NGO accountability and conformity with certain standards are also formulated by public international organisations (IOs). NGOs that wish to obtain consultative status at the United Nations Economic and Social Council (ECOSOC) and gain privileged access to UN forums and conferences, for example, need to respect the principles laid down in ECOSOC Resolution 1996/31. It requires from NGOs inter alia to be representative of their members, to have democratic and transparent decision-making processes, and to be politically independent. In 2006, the non-governmental liaison service (NGLS) of the UN issued the report ‘Debating INGO Accountability’ that also focused explicitly on the democratic aspects of NGO accountability (Bendell, 2006). The empirical trend towards heightened normative standards is mirrored in the academic literature on NGOs where critical voices are getting louder. While some authors still see NGOs as legitimised by their mission and their achievements, others question their ‘representativeness’, the democratic quality of their internal procedures, and their external accountability (for overviews, see Collingwood and Logister, 2005; Charnovitz, 2006). The conditions under which NGOs can contribute to more legitimate governance on a global scale and the requirements they would have to fulfil in order to do so have been subjects of debate (Scholte, 2007; Nanz and Steffek, 2005). Some scholars contend, however, that the ‘unelected guardians of the global public good’ cannot

Jens Steffek and Kristina Hahn 3

conform to these high expectations (Florini, 2004). Others even argue that normative concepts such as internal democracy should not be criteria for judging the legitimacy of NGOs (Goodin, 2003). Another strand of critical literature looks at the service-delivery and implementation function of NGOs, especially in the North-South context. Scholars have flagged enormous North-South imbalances in NGO activity and questioned the role of transnational NGOs as ‘spokespersons’ of civil society and individuals in developing countries (for example, Edwards, 2000; Nelson, 2002; Hudson, 2000; Fisher, 1997). Against this backdrop the present book aims to provide a broad overview of the state of the art on the evaluation of transnational NGOs, from an academic as well as a practitioner’s perspective. We focus on three cornerstones of the current debate, namely the three key concepts of legitimacy, accountability and representation. The questions to be discussed in this volume are the following: What exactly do the terms legitimacy, accountability and representation mean in the context of transnational NGOs? Why exactly, and for what activities, do NGOs need legitimation? To whom should NGOs be accountable? And should we really expect NGOs to represent a clearly defined constituency? None of the three normative concepts that structure this volume is uncontested in the academic literature, but the degree of fuzziness surrounding them varies, with legitimacy probably being the most ambiguous and ill-defined of the three. As we will point out in the next section of this introductory chapter, the three theoretical concepts are also intimately related, in particular when it comes to the analysis and evaluation of vertical relations between an organisation that claims to act in the name or on behalf of somebody, and its societal constituency. We contend that many contemporary debates on transnational NGOs that come under any of the three headings in essence centre on the possibilities of monitoring and sanctioning powerful organisations ‘from below’. Depending on context, those ‘below’ might be called members, supporters, beneficiaries, stakeholders, affected persons, citizens, or the wider public. Echoing an old theme from political theory, these debates raise the twin issues of how the exercise of power might be justified and how power can be kept in check effectively. But how much power do NGOs really have? And what kind of power is it? Some scholars argue that NGOs lack the power to take authoritative decisions and, hence, they do not need to be democratically accountable, legitimate, or representative. These scholars set forth the argument that ‘as long as private actors do not decide authoritatively on public policy, they neither have to have a democratic structure nor

4 Introduction

do they have to be elected by (sectoral) demoi’ (Brühl, 2002, p. 378, referring to Beisheim, 1997). However, in the literature we also often find the assertion that NGOs exert considerable power, mostly in a more indirect way. Some scholars even speak about a ‘power shift’ between states and NGOs (Mathews, 1997). As there seems to be some disagreement over the very nature of ‘NGO power’ we need to have a closer look at the possible meanings that the concept unfolds with regard to NGOs and their specific modes of action. We may distinguish between ‘direct power’ that one person exerts over another and more diffuse power relations (see Barnett and Duvall, 2005), or between different ‘faces’ of power as – most famously – Steven Lukes has done (Lukes, 1974; see also Digeser, 1992). Lukes refers to Robert Dahl’s concept of power as a ‘first face’. According to Dahl, power means that ‘A has power over B to the extent that he can get B to do something that B would not otherwise do’ (Dahl, 1957, cited in Bell et al., 1969, p. 80). Dahl concentrates on the behaviour of individuals in decision-making processes. The notions of ‘power’ and ‘influence’ are used almost interchangeably here. Dahl sees power/influence at work, if people are able to ‘get their positions through’ in conflicts of interest. In this context, the questions of NGO participation rights and their possibilities to gain access to international decision-making processes are important. For example, by the 1990s, NGOs had secured access to virtually all UN conferences and committees (Sankey, 1996, p. 271). By now we can observe that NGOs are increasingly involved in decisionmaking processes in almost all international organisations (for an overview see Steffek and Nanz, 2008). Compared with what ordinary citizens could do, NGOs have privileged access to international policy processes, even if they do not enjoy voting rights, and their influence may be based on informal lobbying techniques. NGOs get accustomed to the rules of international organisations, and IO staff rely on the collaboration and expertise of NGOs, a process that one may describe as ‘institutionalization’ (Martens, 2005). Furthermore, there is the phenomenon that some have come to call the ‘new transnationalism’ (Dingwerth, 2007). The term refers to the fact that private actors are increasingly setting transnational standards (see Beisheim and Dingwerth; Bendell et al. in this volume). Although the resultant norms and technical prescriptions are usually not legally binding they may become authoritative as public bodies and intergovernmental organisations apply or endorse them. Nevertheless, when compared to states, the direct decision-making power of NGOs still seems to be limited. But, as Lukes explained, a concept focusing on a ‘direct’ exercise of power in decision-making

Jens Steffek and Kristina Hahn 5

processes represents only its ‘first face’ and may be too limited. Bachrach and Baratz state that it is not only revealed policy preferences in decision-making processes that should be taken into account in an analysis of power, but also what they call ‘non-decisions’ (Bachrach and Baratz, 1970). For them, one major exercise of power is to prevent issues from being set on the political agenda. Here, the concept of power shifts from the level of power between individuals and is extended towards the power that is inherent in social institutions. Their ‘second face of power’ perspective sheds light on interesting and so far under-researched aspects of NGO power. In a seminal study, Bob, for instance, analysed how local social movements attract the support of professional Northern advocacy NGOs (Bob, 2005). He showed that transnational NGOs choose the ‘clients’ for their advocacy with a view to the marketability of their cause. As transnational NGOs are ‘agendasetters’ in international politics (see, for example, Keck and Sikkink, 1999) it is important to acknowledge that they have quite some leeway in deciding which and whose concerns they are advocating, and hence are also involved in keeping issues off the international agenda. NGOs’ increasing involvement in standard setting procedures (see above) might be another important aspect in this context since certain standards prevent issues from even being negotiated. But moving on and enlarging the concept of power from the ‘first face of power’-view, Bachrach’s and Baratz’s critique of Dahl’s concept is made even more compelling by Lukes, who suggested there was yet another (third) face of power that had to be discovered. He not only focuses on overt conflicts of interests (first face), or non-decisions and covert conflicts (second face), but also critically investigates how grievances come about. For Lukes, the most important effect of power in society is the way in which people are prevented from recognising what their ‘real interests’ are, and accept the existing order of things. There is a parallel here to the work of Nye who introduced the concept of soft power which is nowadays commonly used with regard to NGOs (see, for example, Sikkink et al., 2002; Florini, 2000). For Nye, ‘soft power’ is the power to persuade and attract others – as opposed to ‘hard power’, based on coercive capacities and material resources (Nye, 1990; for soft power and NGOs, see Nye, 2004). NGOs are often said to exert or dispose of ‘soft power’, because they convince others with arguments and information. NGOs ‘frame’ issues; this term refers to ‘conscious strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action’ (McAdam et al., 1996, p. 6, cited in Keck and Sikkink, 1999, p. 90).

6 Introduction

As part of broader transnational advocacy coalitions, NGOs persuade and socialise other actors (Keck and Sikkink, 1998, p. 16). Despite some differences, the concept of ‘soft power’ and Luke’s ‘third face’ similarly focus on the power exerted over others’ interests and preferences, and not just over their behaviour.3 Seen from a third-face-of-power perspective, NGOs seem to be power ful, at least in certain regards, because they can change others’ perceptions of the world and perceptions of their own interests through persuasion. Pushing this even further, Digeser complemented the three faces of power mentioned so far with the post-structuralist concept of Michel Foucault (Digeser, 1992). By highlighting the power inherent in discourse and language, Foucault adds new aspects to a comprehensive understanding of power. According to Foucault, discourses decide what is ‘right’ and ‘wrong’. But this is not their main function, as he makes clear in his writings on productive power (Foucault, 1976; 1977). Discourses produce the issues which are talked about, as well as the subjects and their identities. Foucault shows in his studies how certain categories evolve, and how people start to understand themselves, and be understood by others, as being ‘different’. For instance, the homosexual is produced as a subject through the discourse on homosexuality; and the sick person is defined in his or her opposition to the healthy. This is implied by Foucault’s concept of ‘subjectivation’ which refers to the production of a person’s identity: people are categorised according to identities which are attached to them (Foucault, 1982). Following Foucault’s lead, one could argue that NGOs are ‘powerful’ also in a fourth dimension. NGOs engage in the discursive production of identities, for example of their ‘clients’. This can be analysed as an instance of a fourth face of power, involving diffuse and indirect power effects (see Hahn in this volume). When looking at the different dimensions of power together, it appears that NGOs can indeed be powerful in many regards, even if much of their social power may be found in diffuse (discursive) processes. Given the link between power and the need for legitimacy mentioned above, this is an argument for at least not excluding the possibility a priori that NGOs should conform to standards with regard to their legitimacy, accountability and representation (even if these might not be the same as those that apply to states). It also makes us wonder whether it is really feasible to retreat to the position that NGOs do not need to face questions of legitimacy at all because what they do is covered entirely by their right to free speech (Bob, 2007). In the three sections that follow we will take issue with each of these three

Jens Steffek and Kristina Hahn 7

normative concepts. We briefly sketch out the general theoretical debates over these concepts, and the way they are applied to the particular empirical context of transnational NGOs. Our discussion starts with the broadest and most encompassing of the three concepts: legitimacy.

Legitimacy The problem of legitimacy, some have argued, is nothing less than the master question of political research (Crick, 1959, p. 150). At the same time, legitimacy is such a multifaceted and fuzzy concept that others doubt whether it should be used at all in academic research (O’Kane, 1993). There is no room in this introductory chapter for a thorough review of the extensive theoretical and conceptual literature on legitimacy and its usages in empirical research (but see Hurrelmann et al., 2007). Nevertheless, some explanatory remarks are in order. First of all, we should recall that in the social sciences the term legitimacy is used both in a normative and an empirical sense (Beetham, 1991). In the normative sense, legitimacy refers to the conditions under which power is rightfully exercised. It is hence the scholar’s yardstick for measuring real-world phenomena against theory-guided expectations. In a purely empirical sense, by contrast, legitimacy refers to the conditions under which persons or institutions in power manage to gain acceptance and support from the people they rule over. Legitimacy in this sense is a concept that captures the beliefs of people and the actions motivated by those beliefs. Since some normative concepts extensively discussed by theorists also inform the judgments of citizens (democracy, for example), the two notions of legitimacy are obviously related. Legitimation is a term that denotes the activity of making a social institution appear to be legitimate. Legitimation often takes place through discourses (Steffek, 2003), but also through symbolic practices (Barker, 2001). Compared to the concepts of accountability and representation that also figure prominently in this book, legitimacy is the broadest and most malleable one. Quite obviously, the normative standards for assessing the legitimacy of government have changed remarkably over time. In the feudal age, legitimacy considerations revolved mainly around the descent of the monarch. In democratic times, the legitimacy of a government is determined by the correct procedures of election or appointment. Empirically, there are also many different grounds for the ascription of legitimacy to governing institutions. Citizens evaluating

8 Introduction

the legitimacy of a government may not only refer to procedures of election and decision-making but also to the concrete results that governing institutions produce. Contemporary political scientists tend to call the latter ‘output-legitimacy’, as opposed to the ‘input-legitimacy’ created by citizen participation and democratic procedure (Scharpf, 1999). It is quite likely that, empirically, both input and output criteria come into play when people assess governing institutions, or the conduct of persons in power. How does legitimacy relate to accountability? Accountability is narrower in scope than legitimacy and a somewhat more technical concept, in the sense that it is often regarded as a matter of appropriate institutional engineering (Ebrahim and Weisband, 2007, pp. 15 et seq.). This is not to suggest that there is consensus on what accountability means in theory and what it requires in practice. As we will see below, there is in fact an extensive theoretical debate on the nature and dimensions of accountability. Generally speaking, accountability refers to a process in which power-holders are required to explain and justify their conduct towards an audience who can pose questions and who have the ability to impose some form of sanction (Bovens, 2007). In the traditional publicpolitical context, accountability has been conceptualised as a relationship between elected politicians and appointed public officials on the one side, and citizens on the other (Dowdle, 2006, p. 3). This idea now brings us to the third concept: representation. In the political sense of the term, representation refers to the interrelationship between one person standing for a larger group of people whose members confer rights and obligations to him or her. Representation hence seems to be the most unambiguous of the three concepts and under certain conditions may be instrumental to both legitimacy and accountability. The three concepts in fact converge in a notion of parliamentary democracy, which stipulates that government is legitimate when it is accountable to freely chosen representatives of the citizenry. Representation in this context is key to electoral accountability and a cornerstone of democratic legitimacy. To summarise, legitimacy certainly is the most vague and ambiguous of the three interrelated normative concepts that structure this volume, and the most encompassing one. The notion of organisational legitimacy (i.e. the legitimacy of an organisation) can provide a conceptual umbrella under which accountability and representation may be subsumed. It is quite clear that accountability and representation are necessary elements, or at least important aspects, of organisational legitimacy, and it makes little sense to argue the reverse, that is, that legitimacy is an aspect of either accountability or representation.4

Jens Steffek and Kristina Hahn 9

Traditionally, the concept of legitimacy was mainly used in the context of state power, most notably when discussing the legitimacy of government (Barker, 1990). The same is true for notions of representation or representativity but not, as we will see below, for accountability. In recent years, however, legitimacy has also been used increasingly as a category for evaluating the internal structures and conduct of non-state actors, such as NGOs, and also firms. The reference to legitimacy in the context of private actors is not really new, however. In his seminal work already mentioned above, Max Weber, the founding father of the empirical approach to legitimacy, referred to many kinds of relationships of power and subordination under this heading, both in the public and private spheres (Weber, 1978, p. 213). In their contribution to this volume, Lutz Schrader and Tobias Denskus, taking Weber as their starting point, scrutinise some of the major scholarly traditions of thinking about legitimacy in order to filter out the implications for the legitimacy of NGOs. This return to the classics is particularly timely as the transnationalisation of governance has already called traditional understandings of politics into question. Despite the fact that democracy is, as they have it, the last ‘great political narrative’, it is very uncertain what democracy should mean in a denationalised, globalised world where political decisions are made at many different levels and in many different settings. They analyse Weber’s classic work on legitimacy in the modern bureaucratic state, moving on to Luhmann’s theory of legitimation as process and Habermas’s account of political legitimacy arising from communication, to Foucault’s analysis of domination and governability. None of these modern sociological and philosophical classics was centrally concerned with the question of NGO legitimacy. Yet all, as Schrader and Denskus show, can offer some interesting insights by directing our attention to the specific role that NGOs and other civil society actors play in the respective models of state and society. Given the different traditions of thinking about NGOs and their role in the political process, it is not so surprising to find that in the specialised literature on NGOs there is also no gold standard of legitimacy that authors converge upon. What is generally agreed is that the concept of legitimacy ‘cuts to the heart of ethical and legal questions about the proper role of NGOs at the international level, and how they should act’ (Collingwood and Logister, 2005, p. 178). In principle, organisational legitimacy can refer to the evaluation of almost all aspects of what an NGO is and does. We do not endeavour to suggest a neat definition of NGO legitimacy in this introductory chapter, but we contend that there

10

Introduction

are three types of issues that can structure an overview of the current debate. Slightly modifying the typology suggested by Collingwood and Logister (2005, p. 189), we distinguish the following potential sources of NGO legitimacy: the goals and principles of NGOs; their societal constituency and its involvement in decision-making; their policies and the effects that these policies have on others. Communication about these sources of legitimacy would of course in many cases be critical, rather than affirmative. Debates over goals and principles focus on the political mission that NGOs have and the values that underpin their work. Some authors see the legitimacy of NGOs as being derived primarily from the noble, altruistic, progressive goals they pursue, or the contribution they make to the common good (Charnovitz, 2006, p. 40; Risse, 2006). In such a view, it is first of all the purpose that legitimates the activity of an organisation. This debate about the legitimating function of goals and principles also extends to some definitional issues pertaining to the nature of transnational NGOs as social actors. A number of authors have conceptualised NGOs as an emancipatory and democratising force in world politics, and a counterweight to state power (van Rooy, 2004; Wapner, 1995). Starting from this presumption there is little reason to worry about the legitimacy of NGOs. Authors working in the Marxist tradition, by contrast, view NGOs as part of the ‘extended state’ (Hirsch, 2003). From such a perspective ‘NGOs contribute to the construction of the internationalised state by helping to build up the internationalised imperialist state network’ (Demirovic, 2003, p. 233). Other critics see transnational NGOs as partners rather than rivals of states when they contribute to global governance activities or create political spaces that make governing the globe possible (Bartelson, 2006; Lipschutz, 2005; Sending and Neumann, 2006). From such a critical perspective, stated noble goals and principles will definitely not suffice to legitimate the activities of NGOs. And even if one accepts that the majority of transnational NGOs are made up of well-meaning activists striving for justice, rights and progress, the thorny question of how to deal with ‘bad civil society’ remains (Chambers and Kopstein, 2001). While their absolute numbers may be small, there are transnational groups constituted of religious fundamentalists, racists, neo-Nazis, and supporters of terrorism. Clearly, not all transnational organisations qualifying, technically, as NGOs would be automatically legitimated by their goals and missions. The second major debate focuses on the constituency of NGOs (i.e. the number and geographical distribution of the persons that NGOs can

Jens Steffek and Kristina Hahn 11

claim to represent), and on the way that this constituency is involved in the decision-making process of the organisation. An underlying assumption is that the more members or supporters an NGO enlists, the more legitimate are its political activities. Critics who question the increasingly important role allotted to NGOs by governments and public administration often target the sensitive issue of representativeness. They argue that NGOs only stand for a very small number of people and their often very particular concerns (Anderson, 2000; Anderson and Rieff, 2005). Especially in global settings, inequitable representation becomes an issue because it is criticised that transnational NGOs have a discernable societal basis only in very few, mostly Northern countries. A related strand of discussion focuses on the role that the societal constituency plays in the decision-making process within an NGO. The underlying assumption is that NGOs should base their decisions on the interests and preferences of their members, and to take due account of the views of those people that they claim to work for (Steffek and Nanz, 2008; see also Hahn in this volume). At times this discussion also appears in terms of accountability, as the ‘vertical’ accountability relations between NGOs and their societal membership are at issue here. From this perspective, the legitimacy of NGOs ultimately derives from a faithful representation of the interests and wishes of their societal constituencies and the accountability of the leading personnel towards these constituencies. One of the most contested questions in the current debate is to what extent, if at all, NGOs can attain such forms of internal democratic legitimacy. In their contribution to this volume, Darren Halpin and Peter McLaverty scrutinise precisely this problem. They come to distinguish between NGOs that enfranchise a constituency whose interests are being advocated for (and who therefore practise representation), and those NGOs that seek to practise solidarity. They argue that it would be a mistake to apply the same criteria regarding internal democratic structures to both types of organisations. Only groups that can represent human constituencies should be internally democratic if they are to play a role in the policy process. Solidarity groups, by contrast, would not need to be organised democratically. Halpin and McLaverty conclude that the nature of an NGO should make a major difference with regard to its participation in global politics, notwithstanding the difficulty of empirically drawing a line between the two types of organisations. They argue that it would be unreasonable to expect solidarity groups to be organised democratically and to make their participation in world politics conditional upon it.

12

Introduction

Legitimacy debates centring on policies of NGOs usually scrutinise their behaviour in political advocacy or service provision. Sceptics often point out in this context that NGOs are strategic and essentially selfinterested actors, despite their altruistic aspirations and noble goals. As such they may choose their campaign topics with a view to their marketability rather than based on any ‘meritocracy of suffering’ (Bob, 2005). NGOs may also be found trying to manipulate the perception of their activities, by for instance, overstating their successes and dwarfing their failures. They may do so in order to win public support or to secure new funding from their donors (Cooley and Ron, 2002). Finally, debates over NGO legitimacy may focus on the effects that their actions have for those people they claim to represent, or to work for. Critics have argued that some NGOs hijack the causes of oppressed or marginalised populations to advocate their own goals. As Mallaby (2004) has argued in the case of a dam project in Africa, that in opposing funding of this project through the World Bank, transnational NGOs disregarded the wishes of the local population that favoured the construction of the dam. NGOs dispute this version and this is not the place to decide who is right. The point is simply to illustrate this particular dimension of legitimacy discourse. From this overview of approaches to NGO legitimacy, two types of questions seem to emerge. Firstly, is there a way of formulating a comprehensive theory of NGO legitimacy? And what benchmarks would we use to evaluate it? The chapter by Jens Steffek et al. in this volume tackles these questions. It is an attempt to provide a comprehensive normative yardstick, grounded in democratic theory, to assess the democratic legitimacy of NGOs. In this chapter the authors first of all defend the view that democratic legitimacy is indeed a relevant category for assessing the conduct of NGOs. They start from the assumption that transnational NGOs should function as ‘transmission belts’ between the transnational citizenry and sites of intergovernmental policymaking. This implies, firstly, that NGOs should consult their members, supporters and beneficiaries on policy-relevant decisions and, secondly, that the leadership of an NGO should be accountable to its constituency. The authors suggest a set of five criteria for analysing NGO capacity to function as transmission belts – participation, inclusion, responsiveness, transparency, and independence – and illustrate their synergistic relationship. They also provide a list of indicators to operationalise these criteria in comparative empirical research. The second major question regarding NGO legitimacy targets the connection between the normative and empirical sides of this Janus-faced

Jens Steffek and Kristina Hahn 13

concept. In the literature on NGOs it is often underscored that legitimacy is not only a normative category but also an empirical phenomenon (Risse, 2006). Legitimacy enables NGOs to successfully mobilise membership adherence, funding, and public support, while a lack of perceived legitimacy leads to disinterest or even resistance against their activities. The political influence of NGOs and their capacity to find support hinges to a good deal on an impeccable reputation and consistency between what they practise and what they preach. This seems to be particularly true for advocacy groups covering the moral high ground. ‘If NGOs are to become social actors in a global world, pushing for justice, equity, democracy and accountability, then clearly these characteristics need to be reflected in their own systems and structures’ (Edwards et al., 1999, p. 133). Thus, the normative standards of good governance that NGOs promote may become the yardstick for assessing their own organisational legitimacy. A crucial question in this respect is raised by Marianne Beisheim and Klaus Dingwerth in their chapter. Are NGOs that respect standards of good governance actually performing better than others? In their chapter they explore if procedural legitimacy of NGOs (defined in terms of inclusiveness, transparency, and deliberativeness) matters in terms of political effectiveness. They discuss three social mechanisms that may potentially produce such an effect. Firstly, feelings of ownership may be fostered when an NGO ensures inclusive, fair and representative participation. Secondly, deliberative procedures may contribute to learning and consensus. Transparency and accountability may facilitate control over the organisation and produce trust. The three mechanisms are subjected to a plausibility probe in an illustrative case study of one NGO, the Global Reporting Initiative (GRI). The GRI belongs to a particular category of NGOs known as transnational standard-setting organisations, in which non-state actors define issues, make rules, and monitor compliance with these rules. In the light of our deliberations on NGO power above, these rule-makers would certainly be organisations in need of legitimacy. The results of the case study suggest that while inclusiveness and deliberation are mostly relevant to gaining legitimacy, transparency and accountability are primarily relevant to maintaining legitimacy.

Accountability The history of the English word accountability dates back to the Middle Ages (Thomas, 2003). While for a long time it has been related to financial accounting in the narrow sense, in contemporary usage the

14

Introduction

term describes a social relationship that is characterised by a specific activity, ‘the giving and demanding of reasons for conduct’ (Roberts and Scapens, 1985, p. 447), with a view to sanctioning misconduct (Mulgan, 2000, p. 556). Accountability is a very versatile concept that may be applied to all types of social relationships, in which the ‘giving and demanding of reasons for conduct’ takes place. It is much less tied to the state and the justification of public power than legitimacy. A central and rather uncontroversial distinction has been made between managerial (or corporate) and political (or public) forms of accountability (Sinclair, 1995; Steffek, 2010). Their respective goals are quite different. In the corporate sphere, managers are held accountable chiefly for substantive outcomes in terms of utility. In the public domain, the accountability exercise is conducted with a view to preventing abuses of power by office holders and the citizens’ control of government (Thomas, 1998, p. 349). This traditional understanding of accountability as a technique for monitoring the conduct of decision-makers has been often couched into a principal-agent framework. The agent is entrusted by the principal with certain tasks and responsibilities and in return remains answerable to the principal(s). Accountability in that traditional sense is a technique of detecting and correcting misconduct or inefficiencies. A new generation of work on accountability has contested this technical, mechanistic understanding and sheds light on the complexities of accountability relationships that escape easy categorisation (Ebrahim, 2003). First of all, many social actors, and in particular transnational NGOs, face multiple accountability relationships and competing demands (Bryant, 2007, p. 170). In addition, the idea of principals and agents blurs when activities take place in networks without clear hierarchies and when actors mutually depend on each other (Ebrahim, 2003; Klijn and Skelcher, 2007). Accountability under such circumstances turns into a process of mutual justification rather than hierarchical control. What does this mean for transnational NGOs? First of all, NGOs seem to constitute an interesting hybrid between a private and a public subject of accountability. They are, as Reinalda put it, ‘private in form, public in purpose’ (Reinalda, 2001). This means that their accountability relations will not be confined to their own members and donors, but that the public at large as well as state authorities may also ask critical questions about their performance. In particular when NGOs are operating transnationally they are dealing with multiple constituencies that might have quite different expectations regarding the accountability of the organisation.

Jens Steffek and Kristina Hahn 15

The chapter by Jem Bendell et al. provides a good illustration of the special position of NGOs at the frontier between the public and the private realm, as it concentrates on the role of non-state actors in transnational standard-setting. A case study of the private International Standards Organisation (ISO) reveals how boundaries between public and private authority blur as its standards and procedures for accreditation are incorporated into public national and international law. Additional case studies focus on corporate-dominated standard setting for labour codes in clothing supply chains, and sustainable forest management in relation to the stakeholder model of the Forest Stewardship Council (FSC). The FSC case highlights the limits of stakeholder participation and accountability, in particular with regard to persistent North-South asymmetries. Taken together, these case studies show that NGOs influence and indeed govern economic activities in ways that raise major accountability problems, particularly in terms of the vertical accountability of decision makers to those affected by their decisions. Two possible remedies for this accountability deficit emerge from their discussion: firstly, there is what they call the statist approach that would give governments and intergovernmental organisations of the UN system a stronger oversight role in the transnational development of standards. Alternatively, business and NGOs could develop principles for the setting and implementation of voluntary standards in close cooperation with those affected. The overview of existing accountability problems in the transnational private context brings us to concrete tools and mechanisms of accountability. The toolkit question is indeed one of the major strands of current debate, especially in the more practically oriented literature. In their contribution to this volume, Marek Havrda and Petr Kutílek discuss possible oversight mechanisms for transnational NGOs, in particular for those that provide services. Such mechanisms of monitoring and control should, first of all, prevent leaders from abusing the non-governmental status of the NGO or the organisation from grossly underperforming in delivering services. Discussing the current state of affairs, they discard the idea that public regulation by state authorities could ever lead to effective oversight. They are equally sceptical of existing attempts at self-regulation by NGOs that outline accountability principles without monitoring their implementation. Drawing on experiences from the business world they propose a novel, web-based accountability tool as an alternative. On such an interactive platform, participating NGOs would be ranked and evaluated on their performance both by their donors and their partners, or cooperators.

16

Introduction

As disputes over the information provided on the portal are quite likely to arise, Havrda and Kutílek suggest an arbitration system to resolve them. The authors anticipate that such an accountability platform on the web would increase transparency of NGO operations and provide stakeholders with relevant and reliable information about their performance. They caution, however, that such a voluntary system would only work in practice if major donors make participation mandatory for NGOs applying for funding.

Representation The concept of representation – similar to legitimacy – is typically applied to questions of state power and government. In its most general sense, representation refers to one person standing for another; in the political context, representation makes citizens’ voices, opinions, and perspectives ‘present’ in public policymaking (Pitkin, 1967). Historically, the debate on representation focused mainly on the question of whether representatives should act as ‘delegates’ or ‘trustees’ (Stanford Encyclopaedia of Philosophy, 2006). Under the delegation model, representatives follow the expressed preferences of their constituents. Under the trustee model, representatives enjoy much more leeway for formulating their own ideas of what should be done. The traditional ‘standard account’ of representative democracy has four main features (Urbinati and Warren, 2008, p. 389). Firstly, representation is often understood as a form of principal-agent relationship. The principals are conceptualised as constituencies formed on a territorial basis, and these constituencies elect their representatives as ‘agents’ who stand for and act on their interests. Secondly, electoral representation makes it possible to identify the sovereignty of the people with state power. Thirdly, electoral mechanisms of representation are said to guarantee some measure of responsiveness to the people’s wishes by their representatives. Fourthly, electoral representation based on the principle of ‘one-person, one-vote’ is crucial for realising political equality. In times of globalisation and political denationalisation, this standard account of electoral representation has come under strain. It is challenged by a redefinition of political constituencies on a functional rather than territorial basis, by new models of transnational network governance and by the increasing complexities of global political problems and interdependencies. Interestingly, intergovernmental and transnational actors such as international organisations and NGOs increasingly make representative claims (Urbinati and Warren, 2008, p. 390).

Jens Steffek and Kristina Hahn 17

These actors very often do not claim to represent territorially defined constituencies, but their constituents consist of ‘groups’ that share different characteristics. In the academic literature on representation, feminist scholars especially highlight the importance of a constituency (like women or minorities) that is not defined by territorial boundaries. Feminists have criticised the standard account of representation for not taking sufficiently into account the question of who the representatives are (women or men, for example) and the inherent discrimination of women (see Phillips, 1998). According to these critiques, the formal understanding of representation fails to take into account the injustices experienced by marginalised groups, and whose members often do not trust representatives who do not share their experiences (Mansbridge, 1999; Williams, 1998). Members of marginalised groups can bring a specific perspective based on their experiences into the political discourse (Williams, 1998). This critique refers to the famous distinction by Hanna Pitkin who complemented the formalistic view on representation (including the notions of electoral authorisation and accountability) with three other models of representation. She introduced the notions of symbolic representation (representation via personification/symbolisation of the constituents by a political leader, for example), descriptive representation (the extent to which a representative resembles those being represented), and, finally, substantive representation that focuses on the activities of the representative and investigates whose interests he or she furthers (Pitkin, 1967). Following this broader concept of representation, feminist scholars mainly refer to the second dimension, namely descriptive representation or ‘mirror representation’, the way in which representatives share the experiences of their constituency and are part of the same ‘group’ (Phillips, 1998, p. 226). This issue is highly relevant with regard to NGOs and the question of their ‘representativeness’, because empirical contestation of NGOs’ right to representation often centres on the notion of descriptive representation. Instead of being elected by formal vote, NGOs often claim to be competent stand-ins for other, vulnerable populations. This claim is challenged when conflict arises between NGOs who act as advocates ‘in the best interest’ of disadvantaged persons and groups that are composed of these persons, such as child workers, prostitutes etc., who may contest being represented by others and claim their own voice, based on common experiences. While not explicitly taking issue with the concept of representation, the chapter by Kristina Hahn deals exactly with such a conflict, albeit from a power-theoretical perspective.

18

Introduction

She suggests turning to a Foucauldian concept of power that critically analyses the identity attributions that take place in every discursive process. These identity attributions of NGOs to their beneficiaries come to the surface when they are contested and even rejected by (parts of) the beneficiaries, which was the case in the discourse on human trafficking within the UN. Here, two big NGO coalitions present the fates of their ‘clients’ differently to the international audience, for example during the negotiations leading to the UN protocol to prevent, suppress and punish trafficking in persons. Whereas one NGO group aims at trafficked persons’ empowerment, the other relies more on a discourse that represents them as ‘vulnerable’ and ‘victims’. This latter representation was contested by self defence groups of prostitutes who criticised their advocates for ‘muting’ them, claiming it should be them (and not the NGOs) whom states consult when drafting new anti-trafficking policies. While feminist scholars extended the concept of representation from a focus on formal representation to include descriptive representation in particular, another strand of critique (often overlapping with the feminist perspective) is rooted in deliberative theory. Deliberative approaches to the concept of representation do not only focus on formal mechanisms through which representatives are conferred rights and obligations by their constituents, but on arguments and positions which are represented in public discourse. Hereby, they do not only challenge the ‘classic’ understanding of the constituency based on territory, but also the classic distinction between the concepts of representation and participation. Traditionally, these two concepts were seen as being in opposition to each other (Stanford Encyclopaedia of Philosophy, 2006). One can speak about a classic ‘division of labour’ between those theorists of democracy who work within the standard account of representation on the one hand and those concerned with participation and inclusion on the other (Urbinati and Warren, 2008, p. 391). This ‘division of labour’ is challenged by those authors who combine elements of participative processes in which deliberation is likely to occur with representative elements (Mansbridge, 1999). As Young puts it, ‘citizens can only legitimately authorise representatives and hold them accountable if there are many avenues and institutions through which they engage both with each other and their representatives’ (Young, 2000, p. 8). The deliberative approaches are better able to cope with new models of governance than approaches focusing only on formal representation because non-state actors’ claims of ‘representativity’ are not based on their assertion to be direct representatives of certain populations,

Jens Steffek and Kristina Hahn 19

but on their reputation as channelling a variety of concerns into international arenas (Sikkink et al., 2002, p. 311). They do not so much claim to be stand-ins for other persons, but for certain viewpoints and arguments and therefore can be referred to as ‘discursive representatives’ (Urbinati and Warren, 2008, pp. 403 et seq.). In this regard, NGOs seem to be particularly important, since they have the reputation of broadening the scope of arguments present in international decisionmaking forums and help to include a variety of voices, from the developed as well as the developing world. More than other actors, they are considered as being stand-ins for the arguments and concerns of disaffected and marginalised populations otherwise excluded from political decision-making. With regard to this widespread assumption Tanja Brühl’s chapter takes a more sceptical perspective on the role of NGOs in international decision-making, investigating the geographical background of NGOs that are accredited to the United Nations institutions. She states that only one third of these NGOs are based in the Global South and that these organisations often face severe problems in terms of resources, access to relevant data and language. She, hence, challenges the role of NGOs as being spokespeople for people in developing countries and maintains that voices of Southern civil societies are often not heard due to this unbalanced representation of NGOs and the prevailing power structures between Southern and Northern NGOs. Brühl also examines how NGOs participate de facto in international decision-making and cautions that NGOs are often excluded when relevant decisions are taken. Brühl thus challenges the idea that NGOs could in any meaningful sense represent ‘the people’ in global politics and contribute to the legitimacy of international governance. While Brühl’s critique targets NGOs and their role as well as the role of international institutions that are often not willing to cooperate fully with NGOs, Justin Greenwood’s chapter concentrates on the latter aspect. He challenges the existing policy of the European Commission to cooperate only with ‘representative’ institutions while excluding those organisations that are not based in a variety of member countries. He contests that ‘representativeness’ can be a standard against which all types of NGOs could be evaluated. He distinguishes those NGOs that represent a geographic constituency of paying members from those that speak for interests derived from causes (such as the environment, human rights etc.). Greenwood maintains that this latter type of NGO is likely to receive secondary treatment under a regime founded on requirements for group representativeness, an outcome which may also emerge from

20

Introduction

settings other than the EU. Greenwood examines an alternative formulation, based on developing norms of external group accountability, including the development of such norms in self-regulatory schemes at the global level and in ‘compact’ formulae in use at the national level. Taking a different perspective to the other two chapters, Greenwood, thus, warns us against raising the standards for NGOs and their representativeness too high, showing the possible dynamics of exclusion associated with such standards once they are implemented in practice. The final two chapters of this volume are intended as a brief reflection on the theoretical issues and practical problems discussed by the contributors. Firstly, Regula Heggli adopts the practitioners’ perspective and discusses the implications for transnational NGOs. Drawing on her practical experience as coordinator of the ‘EU Civil Society Contact Group’ in Brussels, she outlines the contradicting, sometimes even paradoxical demands that NGOs face. She points out, for instance, that the European Commission uses NGO involvement in policymaking to legitimate its own activity, while at the same time repeatedly challenging the legitimacy of NGOs. European institutions also request rapid reactions from NGOs but expect their internal decision-making to be accountable, transparent and democratic. There are, as she points out, tensions between what is desirable and what is feasible in practice. Secondly, Jens Steffek and Kristina Hahn as academic editors of this book identify a number of issues that need further clarification and debate among their colleagues. Given the hybrid character of NGOs that are ‘private in form, but public in purpose’ and given the large variety of activities that NGOs are involved in, the authors plead for refined typologies classifying NGOs. It largely depends upon the ‘type’ of an NGO what kind of normative demands to place on it. Steffek and Hahn furthermore emphasise the necessity of establishing a ‘threshold’ with regard to NGO activities: it makes a difference whether NGOs are involved in activities with far reaching consequences for others (such as the setting of standards) or whether NGOs are merely raising their voices against injustice in the world and therefore doing no more than exerting their right to ‘free speech’.

Notes 1. We understand NGOs to be non-state and non-profit organisations that have clearly stated purposes, legal personality in at least one country, and pursue their goals in non-violent ways. Most of the NGOs under scrutiny in this book are transnational NGOs, which are registered and/or active in more than one state. 2. See www.ingoaccountabilitycharter.org.

Jens Steffek and Kristina Hahn 21 3. In this context, Lukes recently named Nye’s concept a ‘cousin of what I called power’s “third dimension”’ (Lukes, 2007, p. 90). 4. But note that Grant and Keohane (2005, p. 29) argue that accountability works on the assumption that the authority of the parties to the accountability relationship is accepted as legitimate.

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S. Charnovitz (2006) ‘Accountability of Nongovernmental Organizations in Global Governance’ in L. Jordan and P. Van Tuijl (eds) NGO Accountability: Politics, Principles and Innovations (London: Earthscan), pp. 21–41. V. Collingwood and L. Logister (2005) ‘State of the Art: Addressing the INGO “Legitimacy Deficit”’, Political Studies Review, 3, 2, pp. 175–92. A. Cooley and J. Ron (2002) ‘The NGO Scramble: Organizational Insecurity and the Political Economy of Transnational Action’, International Security, 27, 1, pp. 5–39. B. Crick (1959) The American Science of Politics: Its Origins and Conditions (Berkeley: University of California Press). A. Demirovic (2003) ‘NGOs, the State, and Civil Society: The Transformation of Hegemony’, Rethinking Marxism, 15, 2, pp. 214–35. P. Digeser (1992) ‘The Fourth Face of Power’, The Journal of Politicism, 54, 4, pp. 977–1007. K. Dingwerth (2007) The New Transnationalism: Transnational Governance and Democratic Legitimacy (Houndmills, Basingstoke: Palgrave Macmillan). M. W. Dowdle (2006) ‘Public Accountability: Conceptual, Historical, and Epistemic Mappings’ in M. W. Dowdle (ed.) Public Accountability: Designs, Dilemmas and Experiences (Cambridge: Cambridge University Press), pp. 1–29. A. Ebrahim (2003) ‘Accountability in Practice: Mechanisms for NGOs’, World Development, 31, 5, pp. 813–29. A. Ebrahim and E. Weisband (eds) (2007) Global Accountabilities: Participation, Pluralism, and Public Ethics (Cambridge: Cambridge University Press) M. Edwards, D. Hulme and T. Wallace (1999) ‘NGOs in a Global Future: Marrying Local Delivery to Worldwide Leverage’, Public Administration and Development, 19, 2, pp. 117–36. M. Edwards (2000) NGOs Rights and Responsibilities (London: The Foreign Policy Center). W. F. Fisher (1997) ‘Doing Good? The Politics and Anti-Politics of NGO-Practices’, Review of Anthropology, 26, pp. 439–64. A. M. Florini (ed.) (2000) The Third Force. The Rise of Transnational Civil Society (Tokyo: Japan Center for International Exchange and Washington DC: Carnegie Endowment for International Peace). A. M. Florini (2004) ‘Is Global Civil Society a Good Thing?’, New Perspectives Quarterly, 21, 2, pp. 72–6. M. Foucault (1976) Überwachen und Strafen. Die Geburt des Gefängnisses (Frankfurt/ Main: Suhrkamp). M. Foucault (1977) Der Wille zum Wissen. Sexualität und Wahrheit, Band 1 (Frankfurt/Main: Suhrkamp). M. Foucault (1982) ‘The Subject and Power: Afterword’ in H. L. Dreyfus and P. Rabinow (eds) Michel Foucault: Beyond Structuralism and Hermeneutics (London: Harvester Wheatsheaf), pp. 208–26. R. E. Goodin (2003) ‘Democratic Accountability: The Distinctiveness of the Third Sector’, Archives Européennes de Sociologie, 44, 3, pp. 359–96. R. Grant and R. O. Keohane (2005) ‘Accountability and Abuses of Power in World Politics’, American Political Science Review, 99, 1, pp. 29–43. J. Hirsch (2003) ‘The State’s New Clothes: NGOs and the Internationalization of States’, Rethinking Marxism, 15, 2, pp. 238–61.

Jens Steffek and Kristina Hahn 23 A. Hudson (2000) ‘Making the Connection. Legitimacy Claims, Legitimacy Chains and Northern NGOs’ International Advocacy’ in D. Lewis and T. Wallace (eds) New Roles and Relevance: Development NGOs and the Challenge of Change (Bloomfield, CT: Kumarian Press), pp. 89–97. A. Hurrelmann, S. Schneider and J. Steffek (eds) (2007) Legitimacy in an Age of Global Politics (Houndmills, Basingstoke: Palgrave Macmillan). INGO Accountability Charter (2009) available at www.ingoaccountabilitycharter. org (homepage), date accessed 18 August 2009. M. Keck and K. Sikkink (1998) Activists beyond Borders: Transnational Advocacy Networks in International Politics (Ithaca, New York: Cornell University Press). M. Keck and K. Sikkink (1999) Transnational Advocacy Networks in International and Regional Politics (Paris: UNESCO). E.-H. Klijn and C. Skelcher (2007) ‘Democracy and Governance Networks: Compatible or Not?’, Public Administration, 85, 3, pp. 587–608. R. D. Lipschutz (2005) ‘Global Civil Society and Global Governmentality’ in G. Baker and D. Chandler (eds) Global Civil Society: Contested Futures (London: Routledge), pp. 171–85. S. Lukes (1974) Power: A Radical View (London: Macmillan). S. Lukes (2007) ‘Power and the Battle for Hearts and Minds: On the Bluntness of Soft Power’ in F. Berenskoetter and M. J. Williams (eds) Power in World Politics (Abingdon, New York: Routledge), pp. 83–97. S. Mallaby (2004) ‘NGOs: Fighting Poverty, Hurting the Poor’, Foreign Policy, 144, pp. 50–9. J. Mansbridge (1999) ‘Should Blacks Represent Blacks and Women Represent Women? A Contingent Yes’, Journal of Politics, Spring, available at http://www. hks.harvard.edu/wappp/research/working/mansbridge99.pdf, date accessed 10 July 2009. K. Martens (2005) NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (New York: Palgrave Macmillan). J. T. Mathews (1997) ‘Power Shift’, Foreign Affairs, 76, 1, pp. 50–67. R. Mulgan (2000) ‘“Accountability”: An Ever-Expanding Concept’, Public Administration, 78, 3, pp. 555–73. P. Nanz and J. Steffek (2005) ‘Assessing the Democratic Quality of Deliberation in International Governance: Criteria and Research Strategies’, Acta Politica, 40, 3, pp. 368–83. P. J. Nelson (2002) ‘Agendas, Accountability, and Legitimacy among Transnational Networks Lobbying the World Bank’ in K. Sikkink, J. V. Riker and S. Khagram (eds) Restructuring World Politics: Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press), pp. 131–54. J. Nye (1990) ‘Soft Power’, Foreign Policy, 80, pp.153–71. J. Nye (2004) Soft Power: The Means to Succeed in World Politics (New York: Public Affairs). R. O’Kane (1993) ‘Against Legitimacy’, Political Studies, 41, 3, pp. 471–87. A. Phillips (1998) ‘Democracy and Representation: Or, Why Should it Matter Who Our Representatives Are?’ in A. Phillips (ed.) Feminism and Politics (Oxford: Oxford University Press), pp. 224–42. H. F. Pitkin (1967) The Concept of Representation (Berkeley and Los Angeles: University of California Press).

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B. Reinalda (2001) ‘Private in Form, Public in Purpose: NGOs in International Relations Theory’ in B. Arts, B. Reinalda and M. Noortmann (eds) Non-State Actors in International Relations (Aldershot: Ashgate), pp. 11–40. T. Risse (2006) ‘Transnational Governance and Legitimacy’ in A. Benz and Y. Papadopoulos (eds) Governance and Democracy (London: Routledge), pp. 179–99. J. Roberts and R. Scapens (1985) ‘Accounting Systems and Systems of Accountability – Understanding Accounting Practices in their Organisational Contexts’, Accounting, Organizations and Society, 10, 4, pp. 443–56. J. Sankey (1996) ‘Conclusions’ in P. Willets (ed.) The Conscience of the World: The Influence of Non-governmental Organizations in the UN System (Washington DC: Brooking Inst.), pp. 270–6. F. W. Scharpf (1999) Regieren in Europa: Effektiv und demokratisch? (Frankfurt a. M.: Campus). J. A. Scholte (2007) ‘Civil Society and the Legitimation of Global Governance’, Journal of Civil Society, 3, 3, pp. 305–26. O. J. Sending and I. B. Neumann. (2006) ‘Governance to Governmentality: Analyzing NGOs, States, and Power’, International Studies Quarterly, 50, 3, pp. 651–72. K. Sikkink, J. V. Riker and S. Khagram (eds) (2002) Restructuring World Politics. Transnational Social Movements, Networks, and Norms (Minneapolis: University of Minnesota Press). A. Sinclair (1995) ‘The Chameleon of Accountability: Forms and Discourses’, Accounting, Organizations and Society, 20, 2–3, pp. 219–37. Stanford Encyclopedia of Philosophy, first published on 2 Jan 2006, online available at http://plato.stanford.edu/entries/political-representation/, date accessed 10 July 2009. J. Steffek (2003) ‘The Legitimation of International Governance: A Discourse Approach’, European Journal of International Relations, 9, 2, pp. 249–75. J. Steffek and P. Nanz (2008) ‘Emergent Patterns of Civil Society Participation in Global and European Governance’ in J. Steffek, C. Kissling and P. Nanz (eds) Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Houndmills, Basingstoke: Palgrave Macmillan), pp. 1–29. J. Steffek (2010) ‘Public Accountability and the Public Sphere of International Governance’, Ethics & International Affairs, 24, 1, pp. 45–67. P. G. Thomas (1998) ‘The Changing Nature of Accountability’ in B. G. Peters and D. Savoie (eds) Taking Stock: Assessing Public Sector Reforms (Montreal: McGill-Queen’s University Press), pp. 348–93. P. G. Thomas (2003) ‘Accountability’ in B. G. Peters and J. Pierre (eds) Handbook of Public Administration (London: Sage), pp. 549–66. N. Urbinati and M. E. Warren (2008) ‘The Concept of Representation in Contemporary Democratic Theory’, Annual Review of Political Science, 11, pp. 387–412. A. van Rooy (2004) The Global Legitimacy Game: Civil Society, Globalization and Protest (New York: Palgrave Macmillan). P. Wapner (1995) ‘Politics beyond the State: Environmental Activism in World Politics’, World Politics, 47, 3, pp. 311–40.

Jens Steffek and Kristina Hahn 25 M. Weber (1978) Economy and Society, Vol. I., (eds) Guenther Roth and Claus Wittich (Berkeley: University of California Press). P. Willetts (ed.) (1996) The Conscience of the World: The Influence of NonGovernmental Organizations in the UN System (Washington DC: Brooking Inst.). M. S. Williams (1998) Voice, Trust, and Memory. Marginalized Groups and the Failings of Liberal Representation (Princeton, NJ: Princeton University Press). I. M. Young (2000) Inclusion and Democracy (Oxford: Oxford University Press).

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Part I NGO Legitimacy

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2 The Debate on NGOs’ Legitimacy: What Can We Learn from the Classics? Lutz Schrader and Tobias Denskus

Economic globalisation still determines the current constitution of the world. How the ‘global community’ will be structured politically, that is, normatively, institutionally and judicially, is still a highly contested debate. Rather than following a prefabricated blueprint the future political arrangement of globalisation will be the result of debates and altercations in which not necessarily the most powerful actors alone will be successful, but those with the most convincing arguments and concepts. It seems almost certain that any global order that will count as legitimate, has to comply with democratic principles. In the political struggles of the past decades and centuries, democracy has established itself as the last ‘great political narrative’ that has been able to convey meaning and identity across nations and continents. But what marks a democratic modus of legitimate will-formation and decision-making under the conditions of trans-boundary and global governance and problem-solving? To answer these kinds of key questions at the crossroads of social and political developments, we are used to consult the ‘classics’ of political thought. The reflection of modern societies in the mirror of the theories of the ‘Meisterdenker’ makes it possible to tackle problems and their possible solutions within the horizons of the theoretically conceivable and normatively acceptable. However, the classics would not count as such, if their texts, which have been explored to the last footnote, did not disclose undiscovered solutions and perspectives in the light of new questions. Thus the following chapter will critically revisit some of the most influential theories of legitimacy which, although they approach the 29

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subject matter from very different meta-theoretical, normative and disciplinary perspectives, are nonetheless complimentary: – the empirical legitimisation theory of the understanding or interpretive sociology of Max Weber, – the functional legitimisation concept of the sociological systemic theory of Niklas Luhmann, – the normative communication-theoretical legitimisation theory of Jürgen Habermas, – the legitimisation theory of Michel Foucault, developed by means of historical- and political-philosophical discourse theory. These theories span the entire era from the beginning of modernity until the present day. They stand for different changes of paradigm in politicalsocietal organisation that repeatedly and profoundly changed the conditions of political domination and its legitimisation since the second half of the nineteenth century: from the pre-modern to the modern bureaucratic state (Weber), from hierarchical to the increasingly horizontal societal governance (Luhmann), from the territorially constituted state to communicatively mediated transnational political processes (Habermas) as well as from the hierarchical state to a highly fragmented form of domination and governance extended even into the individual (Foucault). The works of these four authors are only evaluated under the aspect of their explanatory power in regard to the basis and sources of the claim for validity of civil society actors in the trans-boundary and global political processes. For lack of space, a portrayal and appraisal of the different philosophical and sociological conceptual designs and legitimisation theories will not take place. The examination of the individual approaches will be conducted along four questions: (1) Which social and political processes and structures can claim legitimacy? (2) What statements are made with regard to the bases of legitimacy of civil society actors? (3) How are the causes and driving forces of change of the foundations, methods and rules of legitimacy conceptualised? (4) What do the theories say about patterns and modes of construction of legitimacy outside of the national political system? The objective is not to create a new, comprehensive theory. It is rather to try to comprehend a highly complex subject more fully by casting it from different perspectives. It would be a success if it were possible to place future research on legitimacy of civil society actors, which is generally content just to differentiate between input and outputlegitimisation, onto a more substantial theoretical foundation.

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Max Weber – civil society organisations as charismatic agents of change We owe the insight that it is impossible to ascertain the legitimacy of a system in accordance with an external normative measure to Max Weber. He stated that it ‘is guided exclusively by the factual existence of such a power of command’ (Weber, 1968a, p. 948). Domination is legitimate, if ‘the authority which is claimed by somebody is actually heeded to a socially relevant degree’ (ibid.). Prerequisite for this allegiance is that the ‘legend of legitimacy’ (Lemke, 2001, p. 80), that has its source in the ‘generally observable need of any power […] to justify itself’ (Weber, 1968a, p. 953), is believed and internalised by the subjects to such a degree that they experience the authority as ‘natural’ (Weber, 1968a, p. 954). Therefore the test of political legitimacy occurs not according to ‘the truth of the philosopher, but the belief of the people’ (Schabert, 1986, p. 102; quoted in Clark, 2003, p. 80). According to Weber, the legitimacy of political domination in modern civil societies mostly depends on the belief of citizens in the rationality of an order, constituted by agreed or imposed rational rules of positive law (Weber, 1968a, p. 954). This empirical belief in legitimacy is sustained on the one side by the ‘chances of gratification of the interests of the majority of society’ and on the other by the ‘extent of willingly endorsing participation of the populace, which allows for a legally constituted system of authority’ (Heidorn, 1982, p. 49). The belief in the legitimacy of rational and legal domination is additionally supported by traditional and charismatic sources and assets of legitimacy. Weber’s analysis shows that several conceptions of order and legitimacy always coexist, overlap and complement each other, while also competing for validity (Weber, 1968a, pp. 33 et seq.). Heidorn refers to the belief in the legitimacy of a legal authority as a ‘resultant that is composed of the legitimising effects of traditional familiarisation, the charismatic prestige of political “leaders” and “statesmen” and the actual belief in legality’ (Heidorn, 1982, p. 43). Along with the three generally conversant sources of legitimacy, Weber introduces a little recognised fourth: the value-rational legitimisation.1 As examples he names natural law and protestant ethic.2 That makes it possible to assign a congruent facility for substantiation of the legitimacy of an authority or activity to every determining reason of social action defined by Weber (instrumental-rational, affectual, traditional and value-rational) (Heidorn, 1982, p. 42). Weber’s disregard of the dimension of values is grounded in his deep scepticism in regard

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of the development of capitalist society, for which he envisaged a normative ‘loss of soul’ and a ‘mechanised petrification’ (Weber, 1975, pp. 188 et seq.). In the light of the dissolution and fragmentation of the socially binding value basis, he sees the tendency to attempt to guarantee the cohesion and the capacity for action in the political and economic sphere with an invariable enforcement of the law and a drastic bureaucratisation. The ‘devaluation of all values’, therefore, unfailingly leads to the dominance of a new type of legitimacy: legality (Heidorn, 1982, p. 40). Tradition, natural law and Christian ethics are replaced by the allegedly formal, self-perpetuating logic of the law as a value-rational foundation of legitimacy. The rationale of function and value are combined. A characteristic feature of Weber’s theory of authority and legitimacy is his distinctive ambivalence towards the modern bureaucratic authority. On one side, he believes its enforcement to be inescapable; on the other he faces this perspective with unmistakable reluctance. Consequently, he looks for ways and means to evade the general levelling of society according to the imperatives of an ever-present instrumental rationality. As a counterpoint to the widely perceived state- and elite-centred sociologist, another Weber appears. His criticism of the teleological inevitability of the ‘iron cage of bondage’ and his conceptual consideration open an alternative line of view into the inner dynamics of the development of modern capitalist societies. Centring the reflection onto the relationship of citizen and state seems surprisingly normative for such a confirmed empiricist as Weber. It signals a conceptual approach that reaches far beyond his time. The sketch of a theory of civil society exceeds both the liberal and the communitarian project (Kim, 2000, p. 214). It understands civil society not as a quasinatural pendant of an institutionally stabilised democratic state. In fact, a democratically guaranteed civil society, based on emancipated citizens, becomes the indispensable prerequisite to every form of national or transnational state authority prone to bureaucratic exaggeration. Some authors regard these critical reflections even as one of the central themes of Weber’s work (Hennis, 1996; Goldman, 1988; 1992; Strong, 1992). In their understanding, Weber poses the question of whether there is any possibility for the individual to avoid an existence as ‘cog in a machine’ and the retreat into a passive conformism (Kim, 2000, p. 210). Under the massive pressure of legal and bureaucratic rationale to homogenise, Weber sees in the charismatic leader or group the only instance that is capable of facilitating ‘a completely new orientation of all attitudes and directions of action with a completely new orientation

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of all attitudes toward the different problems of the “world”’ (Weber, 1968a, p. 245). In the political sphere he assigns charismatic leaders the task of providing the political apparatus and bureaucracy with values and goals (Heidorn, 1982, p. 59). In his view, leadership personalities possessed of charisma form an indispensable, even ‘revolutionary’ counterbalance and corrective to the bureaucratically settled ruling structures. Therefore, he does not understand charisma primarily as a god-given or natural gift, but as the expression of the willingness of the individual to assert himself against the pressure of subordination and disciplination, and to set morally demanding goals for his own life and that of the group.3 It would be mistaken to read this conclusion as the expression of a pro-mythical, illiberal meander (Kim, 2000, p. 197). In Weber’s line of thought, charisma and ‘individually differentiated conduct’ form the antipole to discipline as universal requirement of the economic and political rationalisation (Weber, 1968a, p. 1156). But behind that is not the intention to celebrate the free, resistant individual as such. His deliberations aim further. He ties the chances of survival of an active democracy to the opportunity for self-determination of a specific type of subject: How is it at all possible to salvage any remnants of individual Bewegungsfreiheit [freedom of movement] in any sense? […] How is democracy even in this restricted sense to be at all possible? (Weber, 1994, pp. 156 et seq., quoted in Kim, 2000, p. 213) The social space in which this could be made possible – Weber hopes – is an ideal type of civil society. He became acquainted with its role model on his travels in the US (1904). As opposed to the conventional and well-adjusted German societal culture, he experienced civil society as a ‘disciplinary and (trans)formative site in which certain moral traits and civic virtues are cultivated via collective emphasis on individual achievements and ethical qualities’ (Kim, 2000, p. 208). In these voluntary associations the individual not only ‘seeks to maintain his own position by becoming a member of the social group’ (Weber, 1985, pp. 10 et seq.), the individual also adjourns to a social surrounding ‘that constantly probes and reinforces the ethical standard that individual members should apply to their everyday life’ (ibid., p. 208). Civil society organisations are, in this manner of understanding, not only shelters in which discerning moral attitudes, bearings and convictions are conservable. In their organisational exclusivity and their normative particularism

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they can generate the capacity to defy the inclusive and universal routine of bureaucratic rule (ibid., p. 199). Weber does not explicitly comment on the legitimatory status of civil society associations. He does, however, leave no doubt that every power, every individual, every group – ‘every chance of life’ – has the need for self-justification and, for the price of self-determination, must be made credible vis-à-vis its social environment (Weber, 1968b, p. 491).4 To associations as a special form of ‘social order’ validity can be ‘attributed’ both by their members and their social environment. The four sources were already mentioned above: a) tradition: valid is that which has always been; b) affectual, especially emotional, faith: valid is that which is newly revealed or exemplary; c) value-rational faith: valid is that which has been deduced as an absolute; d) positive enactment which is believed to be legal. (Weber, 1968a, p. 36) Obviously, with regard to civil society associations of the American type the value-rational faith prevails. The members commit themselves to an ‘ethical rigor(ism)’ (Weber, 1985, p. 579) and a ‘wilfully chosen subjection to an autonomously chosen purpose’ (Kim, 2000, p. 211). Associations effectually require to a much higher degree than state rule an ‘inner’ value-rational guarantee on the part of their members. The inner justification of the associations is based on the actions of the members in accordance with the internal measures of value (Weber, 1975, pp. 132, 191 et seq., quoted in Kim, 2000, p. 210). Looking from the social environment, legitimacy is attributed also primarily by virtue of the ‘ethical qualities’ of the organisation (Kim, 2007, n. 41). Finally, when civil society organisations can rely on a convincing value-rational credibility and exemplary qualities – in short: on a strong group charisma – they have as representatives of ‘negatively privileged groups of human beings’ a good chance to contest the legitimatory ‘myth of the highly privileged’ (Weber, 1968a, p. 953). Starting from the ubiquitous desire for self-justification of every social actor, the reconstruction of Weber’s theory reveals both the aspect of power and reciprocity of every kind of legitimatory arrangement. In the social interaction between different aspirants to power, the party will prevail which achieves to assure validity and credibility for its ‘legitimatory myth’ and ‘principles of legitimisation’. This insight offers a multitude of conceptual toeholds to understanding the processes of formation, crisis and change of legitimate domination and governance

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as they are found nowadays in trans-nationally constituted political processes. Nevertheless, Weber’s theory has also a blind spot. His concept of ideal types does not explain how legitimate political arrangements occur or disappear. It does not answer the question of why some traditions are appropriate to bolster legitimacy and others not, why, in a specific historical constellation, only certain individuals rise to the role of charismatic leader and why a specific system of values finds favour and approval, whereas others remain more or less unnoticed (Heidorn, 1982, p. 50). To answer these questions, the socio-structural conditions and the cultural determinants, among others, must be examined more closely. This aspect of analysis and conceptualisation is noticeably disregarded in Weber’s characteristic preference of the dimension of actors.

Niklas Luhmann – civil society organisations as immune system of modern societies Niklas Luhmann directly connects to Weber. His interests lie in how the ‘binding power’ of the decisions of a few people in the political or judicial system spreads through the entire society (Luhmann, 1983, p. 27). Because he believes that in highly complex modern societies, stability and legitimacy cannot be procured out of a ‘basic stock of rigid, commonly prevalent belief in legislature’, he shifts his focus to the structural and procedural dimension. Variably structured proceedings of political and judicial decision-making (ibid., pp. 252 et seq.) take the place of older rationale of natural law or exchange based methods of consensus forming (ibid., p. 30). Establishing legitimacy turns into a function of the political system. It has to ensure that ‘its decisions are persistently perceived as binding’ (ibid.). This takes place when the political and judicial system provides procedures, which are suitable to effectively restructuring the social expectations of the subjects in relation to authority and thereby transforms ‘variability into stability’ (ibid., p. 252; Schliesky, 2004, p. 157). Incrementally, a social climate is formed which institutionalises acceptance of self-evident binding decisions (Luhmann, 1983, p. 34). However, it is prerequisite that all participants must be able to act on the assumption of a principally ‘fair proceeding, not predetermined by the use of power’, in which there is the ‘prospect of solving controversies by reasonable consensus of all concerned’ (Luhmann, 2000, pp. 124 et seq.). The gap between system and individual is closed by the concept of procedural role. As actors in intra-system procedures, individuals

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become agents of the function- and communication requirements of the respective subsystem. Everybody, whether as professional decision-maker or subject to decision, is forced into a certain rationale of behaviour. For them the participation in the communicative process is only possible upon adoption of the required role. Otherwise – and here, the power of procedure appears – the former would lose their profession or at least their reputation and the latter would fail to achieve their goal or even be excluded from proceedings. But the respective role also protects the participants against possible consequences of their role behaviour from other systems and their accordant roles in it (Luhmann, 1983, p. 48).5 If everything runs according to procedure, even outsiders have to accept the independent legality of the procedure and its results. Participants can only be reproached if they did not comply with the stipulations of the respective social procedure. Therefore, ‘the relative autonomy of the procedure on the level of role and behaviour contributes to the social generalisation of the result’ (ibid., p. 49). Such generalisations are in turn a major condition for the legitimisation of decisions, ‘as the individual can only accept with the help of social support’ (ibid.). From this perspective, legitimacy is a contingent, only empirically detectable social fact, which is reproduced respectively within every subsystem and in the communication between the different subsystems. Luhmann’s narrowly defined production of legitimacy as ‘genuine political substance (power and legality)’ disregards the developments of the political system during the 1970s (Lange, 2003, p. 140). As Luhman (2000) himself describes, the communication between ‘politics’ and ‘judiciary’ and the other subsystems in the increasingly horizontal governance of highly complex Western communities runs no longer hierarchically, but reciprocally and horizontally. The different subsystems are substantially involved in the weakening or strengthening of the legitimacy of the whole societal system by more or less optimised operations (Heidorn, 1982, p. 106). Here, a discrepancy between the legitimisation theory of the earlier and the societal theory of the later Luhmann emerges. The ideal form of equally communicating societal subsystems postulated in the theory of society is depicted by the ‘real type of pure legitimacy of procedure’ (Lange, 2003, p. 140) as a kind of one-way road of communication through the procedure of vote, legislature and jurisdiction. It is only a ‘halved theory of legitimacy’ (ibid., p. 139). To complement this ‘self-legitimisation of politics’ a ‘counter-current of securing legitimacy’ has developed. The ‘unofficial circuit of power’ builds ‘on the direct influence of the organised public

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on the state administration’ (ibid.). Even established proceedings are changed into the interplay of the two power circuits, and new procedures with more open role definitions emerge. Non-state actors change from the side of passive public and subjects to decision-making to that of protesters, experts and co-deciders. Luhmann was made aware of his theory’s shortcomings by the extraparliamentary opposition of the student movement, which reached its peak just in the year of the first edition of his book ‘Legitimation durch Verfahren’. The public was no longer willing to be limited to the role of uncritical subject to decisions, which only ‘condones the institutional process of political-judicial decision-making’ (ibid, p. 138): The reason for this protest was precisely the non-consideration and marginalisation of the political beliefs of the students through the structural specifications and material decisions in the factual proceedings of the constitutional state. [...] The foreshortening of communication of political power to the traditional proceedings of the ‘official’ political system obviously led to the underestimation, if not even to the denial of that political power which can be communicated outside of the political system. (ibid., p. 397) The mature Luhmann has repaired this weak point in his theory through the re-evaluation of social movements and the introduction of the centre-periphery differentiation of the political system (Luhmann, 1996, p. 200). The function of a quasi system-immanent corrective is ascribed to protest movements as parts of the outer periphery of the political system. They trigger learning processes and contribute to immunising the highly functionally differentiated societies against ‘congealing in entrenched, but no longer environmentally adequate patterns of behaviour’6 (Luhmann, 1984, p. 507). As subsystems only observe their environment from a certain point of view, problems that do not fall into their scope of responsibility are not perceived by them7 (Hellmann, 1996, p. 23). Thanks to their capacity of system-wide observation and reflection, protest movements can compensate deficits of regulation of modern societies ‘that do not find regard elsewhere’ (Luhmann, 1993, p. 143). When the superior measurement for the legitimacy of a social system in parts and as a whole is the conservation of its operational and learning capacity, then social movements can claim to be a part of the legitimacy-generating mechanism.

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The emphasis of the systemic dimension in Luhmann’s work goes hand in hand with the disregard for the agency and the normative dimension. Individual and collective actors are only regarded when they, like the new social movements, make an unmistakable appearance on the societal stage. Even if to these new actors is simply assigned the quality of social systems, the hole in Luhmann’s theory is not so easily patched. Especially in times of crisis and change, the neglect of actors and the normative emptying of political legitimacy turn out to be difficult problems to solve within the framework of system theory. The systemic approach leaves open how the system as a whole – apart from a mostly trial-and-error procedure of information selection – can obtain balance and cohesion. Where, in Luhmann’s theory, can the motivation for a change in the system be found? Who determines, and with what arguments, whether procedures with their well-rehearsed distribution of roles are still up to date or, respectively, when the time has come for new procedures with different role descriptions? The disregard for actors with their ideas, convictions and capacities to act, causes the driving force of social change to disappear from the theoretical radar of the researcher (Reese-Schäfer, 1999, p. 94).

Jürgen Habermas – civil society organisations as representatives of the public in the ‘post-national constellation’ In the famous controversy with Luhmann around the legitimacy and legitimability of modern democratic and capitalistic states, Jürgen Habermas’ design of a ‘material democracy’ (Habermas, 1973, p. 55) ties the legitimacy of the modern state to the institutionalised guarantee of a democratic discourse, in which all citizens must be able to participate on an even standing. He follows the tradition of the enlightenment of Rousseau and Kant, who had the intention of founding a ‘formal principle of reason’, through which ‘conditions and procedures of mutual consent themselves receive legitimising power’ (Mittelstraß, 1995, p. 563). For Habermas the process of decision-making turns into the crucial criterion of democracy. While, for Luhmann, democracy and legitimacy arise quasi behind the back of the individuals as a result of successful communication between the subsystems of a society, Habermas ties the democratic quality of procedure down to the free and fair participation of all affected by the subject and the consequences of the deliberation. More than that: the

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discourse constituted in such a way becomes the means to determine what can count as rational in a society. The rationality and therefore the legitimacy of decisions are thereby fed back to the possibility of criticism and justification of claims of validity within the discourse (Habermas, 1997, p. 27). With this universal design of democracy, Habermas responds to the ‘loss of validity of traditional cultural motivation for compliance and performance’ (Mandt, 1998, p. 387) as well as to the governance crisis of the contemporary state. In the search for contemporary legitimatory bases of political order, Habermas widens the conceptual circle of liberal theory, which exclusively recognises elections, referendums and parliaments as institutions producing legitimacy. In his view, there are no longer any good reasons to exclude citizens from the forming of political opinion and will, once the election has ended. Their participation mediated by public debate rather becomes the legitimising quality of the democratic procedure. The aim and goal of this process of public deliberation are the validation of common interest expressed without misrepresentation (Habermas, 1973). With the formulation of an ambitious normative reference, Habermas addresses the political process in the wider sense, which he describes as ‘the interplay of a public sphere based in civil society with the opinion- and will-formation institutionalized in parliamentary bodies’ (Habermas, 1998, p. 371; emphasis in the original). The idea of people’s sovereignty is reformulated discoursetheoretically and materialises through the possibility of the universal and non-repressive inclusion of all concerned and thereby guarantees the input of all positions into the political system. This is because ‘disregarded points of view are liable to deprive rendered decisions of legitimacy’ (Niesen, 2008, p. 8, Fn. 18; Forst, 2001). Civil society functions as a filter of suggestions and as a generator of communicative power in influencing political decisions as well as to limit and control political power. The source of this communicative power is public communication mediated by civil society. It is sustained by a ‘far-flung network of sensors that react to the pressure of societywide problems and stimulate influential opinions’ (Habermas, 1998, p. 300). To the degree that decisions are discussed in the public, they undergo a process of discursive rationalisation: Rationalization means more than mere legitimation but less than the constitution of power. The power available to the administration alters its aggregate condition as long as it remains tied in with a democratic opinion- and will-formation that does not just monitor

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the exercise of political power ex post facto but more or less programs it as well. (ibid.) Therefore, legitimate decisions are generated within the active interplay between political system and the public or civil society. The boundaries between them are clearly and distinctly defined by Habermas. Only the political system can ‘act’ – ‘it is a subsystem specialized for collectively binding decisions’ (ibid.). In contrast, public opinion that ‘is worked up via democratic procedures into communicative power’ can not ‘rule of itself’. It ‘can only point the use of administrative power in specific directions’ (ibid.). Although, according to Habermas, civil societies do not have any executive political power in the strictest sense, referring to Arato and Cohen (1992) he does grant them the possibility to simultaneously pursue ‘offensive and defensive’ goals in a form of ‘dual politics’, which can considerably influence conditions of and possibilities for governmental action, especially in times of crisis and upheaval. ‘Offensively’, they try to bring up issues relevant to the entire society, to define ways of approaching problems, to propose possible solutions, to supply new information, to interpret values differently, to mobilise good reasons and criticise bad ones. Such initiatives are intended to produce a broad shift in public opinion, to alter the parameters of organised political will-formation, and to exert pressure on parliaments, courts, and administrations in favour of specific policies (Habermas, 1998, p. 370). Conversely, they would operate ‘defensively, when they attempted to maintain existing structures of association and public influence, to generate subcultural counter-publics and counter-institutions, to consolidate new collective identities, and to win new terrain in the form of expanded rights and reformed institutions’ (ibid.). The capacity of civil society organisations ‘to act’ is dependent on effective guarantees of constitutional institutions as well as the obligingness of cultural traditions and social patterns, on the political culture of a populace used to freedom (Habermas, 1990, p. 45). Addressing the challenge of globalisation, Habermas has outlined a framework for the transfer of his originally state-centred design of democracy to the emerging ‘post-national constellation’. As an ‘alternative to the forced cheerfulness of a “self-dismantling” neoliberal politics’ (Habermas, 2001, p. 61), he considers a democratically designed multilevel system, which consists of ‘three arenas with three types of collective actors’: supranational or global organisations, continental regimes and

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nation states (Habermas, 2005, pp. 334 et seq., emphasis in original). He counterbalances intergovernmental actors with transnational public and civil societies for the guarantee of democratic self-governance, to bring about a change of direction towards a ‘global domestic policy without a global government’ (Habermas, 2001, p. 62). Transnational constituted parties, interest based associations, NGOs and civil movements should create the normative and institutional conditions for the limitation of global commercial and communicative networks in the sense of ‘democratic self-control’ (ibid.) of society. In search for ‘functional equivalents’ for arrangements of democratic self-governance on the transnational and global level he formulates several entry points (Habermas, 1998): (1) effective public administrations, (2) congruence of decision-making forums through the inclusion of potentially affected persons and regions, (3) efficiently working public and generally accessible deliberative processes of opinion- and will-formation, (4) social integration and common identity of all citizens through an inclusive democratic process,8 as well as (5) the guarantee of social justice and political and judicial equality for all citizens of the state respectively of politically constituted communities. According to Habermas, in such a post-national democratic configuration – conceived as complementing ‘conventional procedures for decision-making and political representation’ (Habermas, 2001, p. 111) – the theoretical requirements for legitimate democratic politics change as well. The conceptual ties ‘between democratic legitimacy and the familiar forms of state organization’ (ibid.) are loosened. The ‘constitutive differences between state and society’ are being eroded. Departing from these theoretical premises, it is possible to conceptualise the ‘change from hierarchical to horizontal, decentral or sectoral models of policy exchange’. The associative modus is becoming apparent as the complement to the traditional national structure of legitimate politics (see Cohen, 1996; Cohen and Sabel, 1997): Supposedly weak forms of legitimation then appear in another light. For example, the institutionalized participation of non-governmental organizations in the deliberations of international negotiating systems would strengthen the legitimacy of the procedure insofar as mid-level transnational decision-making processes could then be rendered transparent for national public spheres and thus be reconnected with decision-making processes at the grassroots level. (Habermas, 2001, p. 111)

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This opens a possible perspective for theorising the democratisation of political structures and institutions on a global scale (Schmalz-Bruns, 2005, pp. 93 et seq.). By widening Habermas’ approach to the analysis and evaluation of trans-boundary and global political processes, an immanent limitation of the concept of deliberative democracy becomes even more visible: adopting a Western understanding of rationality and democracy as universal, incompatible rationalities and democratic modi are – at least implicitly – excluded as irrational and undemocratic. The discourseethical concept of democracy categorically fails in the evaluation of the legitimatory qualities of procedures and decisions which did not originate through deliberatory ways. Experience shows that more deliberation does not necessarily lead to more democracy and legitimacy, that is, acceptance of the subjects of decisions (Jakobi, 2000). For reasons of its normative orientation, the approach does not possess the theoretical-analytical sensorium to appropriately capture and portray the empirical dimension of legitimacy. This includes for example non-cognitive aspects of legitimacy such as charisma or the attribution of authority, for example through aesthetic properties, which are not explainable as the results of rational proceedings and agreements (Peters, 1994, p. 53).

Michel Foucault – civil society organisations as contact points in the network of governmentality Given the specific strengths and shortcomings of the recapitulated theories, a conceptual framework is sought, which can combine their strengths and overcome their blind spots. Such a concept needs to integrate the different aspects and dilemmas of theory formation – actor and structure/system, empiricism and norm, contingency and universality – into a more coherent architecture. A promising framework to satisfy these needs is the political theory of Michel Foucault. The starting point of his approach is the criticism of the dichotomy of individual and system, power and domination, democracy and dictatorship as well as the tendency towards generalising typically Western normative and institutional patterns. He aims to overcome the fixation of the analysis on the state and the political sphere in a narrow sense, which has ‘dragged on’ from Weber ‘to newer concepts of legitimisation theory (such as Luhmann’s and Habermas’)’ (Heidorn, 1982, p. 67). Foucault criticises especially a mostly ‘juridical and negative perception’ of power, which is expressed in terms like law, prohibition, freedom and sovereignty (Foucault, 1977,

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p. 112). Further characteristics of the negative conception of power are – according to Foucault – the strict distinction between the allowed and the forbidden as well as the Christian conditioning of subjectivation (Foucault, 1987a), through which individuals are integrated in relations of power and dominance in order to ensure their compliance. Foucault’s concept blurs the line between relations of power and state of dominance. Domination becomes a particular manifestation of power. In his definition, domination is a lasting asymmetrical exercise of power institutionalised by economic, political and military means. Hence, domination is characterised by blocked relations of power (Foucault, 1985; Lemke, 2001, p. 89). Foucault does not only use power in the negative sense of coercion. It can also manifest within the promotion and structuration of options of action and forms of subjectivation. In this view, ‘government’ changes from a clearly defined institutional place into society-wide ‘contact points’, where ‘the techniques of the self are integrated into structures of coercion or domination’ (Foucault, 1993, p. 203): The contact point, where individuals are driven by others is tied to the way they conduct themselves, is what we can call, I think, government. (ibid.) In that sense the process of governing people is a ‘reciprocal relation of productivity’, where power and domination are linked (Foucault, 1978, p. 134). Thus, power and, respectively, domination are unthinkable without the ‘versatile equilibrium, between techniques which assure coercion and processes through which the self is constructed or modified by himself’ (Foucault, 1993, pp. 203 et seq.).9 For Foucault, the ‘techniques of the self’ and the corresponding ‘techniques of power and domination’ are dependent on culture. Through the change of perspective from a Western influenced normative and substantial understanding of power to a relational form of power,10 Foucault designs a framework of analysis and interpretation suitable for generalisation, within which the alleged universality of the Western model of democracy can be understood as a singular form. To integrate this link between the inner and outer dimension of domination, he creates the term ‘governmentality’ (Foucault, 1991). Accordingly, government is a universal form which is filled depending on culture and mentality. Every action of governance claims rationality for its decisions and results. Thus rationalities are ‘historical practices, in whose context

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strategies of perception and evaluation are created’ (Lemke, 2001, p. 88). They constitute a ‘political-epistemological space’ – a ‘field of possibilities’ – which allows a range of different answers, reactions, manners of conduct et cetera (ibid.). The acceptability of claims of validity is dependent on the respectively prevailing rationalities, that is to say on the respective actual historical practices in whose context strategies of perception and evaluation are generated (ibid.). Foucault, unlike Weber, is not taking the fact of acceptability for granted. He aims at revealing the ‘conditions of acceptability’ (Foucault, 1987b, p. 254, quoted in Lemke, 2001, p. 88). His interest lies in the conditions of the production of this ‘acceptance of legitimacy’ (Weber, 1968b, p. 470). Unlike Habermas he is not concerned with the question of relation of practices and (normative) rationality, its correspondence or non-correspondence in the sense of a ‘distortion of rationality’ (Lemke, 2001, p. 88). It is also not his intention to describe, like Weber, a universal process of rationalisation, but to reconstruct specific rationalities and their historical transformation and mutual relation with regard to concrete subject matters. Foucault’s ‘main problem’ is not whether practices follow the principles of rationality or not, but to find out which type of rationality they adopt (Foucault, 1988, p. 58). Therefore the concept of rationality does not imply a normative valuation, but has above all ‘an instrumental and relative meaning’ (Foucault, 1994a, p. 26). In this view legitimacy is a characteristic of every relationship of power and domination in which the interplay of techniques of rule and power (‘government by others’) on one hand and techniques of the self (‘self-government’) on the other reproduce, transform and combine strategies of perception and evaluation in such a way that the area of tension between possibility and realisation is acceptable for all parties involved. Legitimacy in the sense of social validity of the origin, implementation, constitution, movement and outcome of relations of power and states of domination is no longer given when the parties involved do not accept the applied rationalities any longer, or even oppose them and express the will to not be ruled in such a way (Foucault, 1992, pp. 54 et seq.). Those who succeed in procuring acceptance for the rationalities they claim against antagonistic rationalities, exercise power or domination respectively. Furthermore, they have to succeed in presenting these rationalities with the use of adequate discourse-political strategies (‘politics of truth’) even in the face of conflicting claims as ‘true’ and make them acceptable for those concerned and involved time and again by reproduction and transformation. In this sense, legitimacy is a dynamic social construct.

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The multifaceted concept of power and domination has important implications for the legitimacy of civil society organisations. Environmental, feminist and other initiatives have found a lot of inspiration and encouragement in Foucault’s work of ‘how relations of domination between women and men, and between different peoples, can be changed’ (Flyvbjerg, 1998, p. 225). Starting from his ‘decentred understanding of power’ (ibid., p. 214), Foucault does not bother asking how civil society organisations may participate in the practices of governance, but which possibilities they have to analyse, criticise and control them. He is primarily interested in their ability to prevent ‘every abuse of power, whoever the author, whoever the victims’ (Miller, 1993, p. 316). Civil society engagement must therefore primarily aim towards social change in general and the alteration of specific arrangements of dominance (Dean, 1994). Within this consistently micro-political and bottom-up approach the societal and political legitimacy of civil society organisations accrues according to how and to what degree they succeed in eluding the co-optation by the disciplination- and subjectivationtechniques of state and economic sphere. On their own part, they may contribute towards the limiting of dominance and the strengthening of freedom and democracy both within civil society and in terms of the whole society (Flyvbjerg, 1998, p. 224). This is the reason why Foucault views the ‘state-distant’, ‘civil society’ or ‘informal’ concepts of authority and control, which are mainly based on consensual forms of willforming, ‘rather as a transformation than an abolition of traditional forms of domination’ (Foucault, 2005, pp. 722 et seq., quoted in Lemke, 2006, p. 45). In this way, consensual forms of action and networks formed by relations of power can function so that they cause comprehensive effects of domination and power (Foucault, 1994b, p. 707). Against this theoretical background the liberal concept of parliamentary representation proves itself to be as inappropriate as Habermas’ ideal of a general consensus of those affected by decision-making. Both concepts stand for a state-centred top-down logic. They are not fit to be markers of differentiation between legitimate and illegitimate relations of power and states of domination. The dissolution of the dichotomy of state and individual in the Foucauldian concept creates space for the insight that the activity of governance covers all relations of the society: of self to self, self to others, between institutions and social communities. On all these levels the question of the quality of the (reciprocal) representation of individual and group interests is posed. The rule of measure in a concrete situation and context is just determined by whether an individual or group experiences a gain or loss of freedom and democracy

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through the affiliation with a greater societal body. Thus, a legitimatory dilemma emerges for civil society actors: they can either participate as a part of ‘the government’ in the (re)production of the legitimacy of dominance. Or they can gain their legitimacy from their engagement as a corrective and countervailing power to the political and economic arrangements and instruments of domination. Civil society actors always operate within this field of tension between (co)dominance and independent volition. In the end, it is essential to alter the ways and means of governance and domination in a more democratic direction.

Conclusions Adding up the findings of this journey through the very different, but nevertheless complementary theories on legitimacy of the four classical thinkers, important elements, characteristics and dimensions of the legitimacy of civil society actors and action can be deduced: (1) The political dimension: The gestalt change of political domination from the more or less hierarchical national government to the horizontal, highly fragmented ‘trans-statehood’ of cross-boundary and global governance presents the question of legitimacy in a new light. To the extent to which the boundaries in cross-boundary political networks between ruling positions and positions of power between state and non-state actors are blurring the ubiquitous need of every actor for context-dependent self-justification is strengthened. The particular distinction of legitimacy of state actors proves itself to be a time-contingent expression of primarily nationally and hierarchical constituted political systems. The insight into the common origins of all social and political legitimacy creates a basis for scrutinising the genuine elements of legitimacy of civil society actors. It is suggested in a first approach to distinguish between the ‘weak’ legitimacy of civil society actors and the ‘hard’ legitimacy of governmental institutions and their representatives. ‘Hard’ legitimacy derives primarily from the established political and legal norms, proceedings and institutions, as well as the appropriate conduct of the political, administrative and judicial elites. Looking at the institution-bound state legitimacy, the impression can still arise that their legitimacy is a fixed property of these institutions and their representatives. This perception is quickly dispelled by the example of civil society actors. They are a case in point, that legitimacy can only be granted and revoked within the relation

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of different actors: it is produced and transformed in a specific situation and context. (2) The empirical dimension: To understand when actual, empirical recognition is gained by political leaders and institutions, Weber’s typology of legitimate domination is still authoritative. In general, the approval of legitimacy on part of the subjects to political decision-making occurs when these procedures and institutions act upon normative values and rules regarded as steadfast and binding and when the responsible actors behave accordingly. Additionally, institutions gain legitimacy when they obtain a traditional quality due to long-term successful practice and/or when they are represented, implemented and administered by leaders distinguished by charisma and prestige. The ‘ingredients’ of such a legitimising ‘form’ are always the same: consensus of value, judicial order, traditions, charismatic and exemplary persons and groups which are concurring within a more or less clearly defined constituency. This form is filled with actors from the different societal spheres: business, state and civil society. Connecting to Weber and Foucault, the specific source of legitimisation of civil society actors consists of their capacity for self-management in accordance with the specific context and situation. Civil society activists and organisations can claim and expect legitimacy to the extent that they are successful in formulating and pursuing their own values, aims and goals vis-à-vis to the instrumental-rational logic of state and economy. A measure of this is their self-assertion as well as the pursuit of aims dedicated to individual and collective emancipation, social change and democracy. The guarantee of conditions for development and self-assertion of free autonomous personalities and actors becomes the prerequisite for legitimate democratic states and sustainably administered enterprises. (3) The normative dimension: The concept of distinguished and conflicting normative rationalities that has been introduced by Weber and expanded by Foucault makes it possible to understand both the dependency of the social validity of specific political order upon the dominant political discourse and the dynamic of change of a given form of legitimacy. As a specific order of knowledge, the dominant discursive construction of rule structures and legitimises the techniques of domination, power and subjectivation which are for the most part regarded as normal and without alternative. The discovery of this connection poses the question: why does the belief in the legitimacy of a political rule – on the part of its

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subjects – appear in certain conditions, but not in others? In short, why do different strategies of legitimisation not catch on equally? What had seemed immovable and permanently binding proves to be the result of political altercations and negotiations – especially in times of historical crises and upheaval. The source of change of a discursive dominant pattern emerges. Actors participating in a concrete context of governance come into focus as agents and inventors of distinguished, often clashing rationalities. In contention with the ‘politics of truth’ of governmental and economic institutions, civil society actors can, by using their communicative power, influence and avert the well-rehearsed communication circuitry of the general public. Consequently, the ‘problem solving mode of the entire system’ can change step by step (Habermas, 1992, p. 460). Under their pressure, with their aid and assistance, new patterns of legitimisation introduce themselves by their sequential manifestation and through incremental affirmation. Finally, these patterns can become dominant norms and procedures. Once established as accepted standards and rules of political and economic governance, they unfurl their objectified validity as self-evident procedures of integration and exclusion. (4) The procedural dimension: Notwithstanding their different theoretical approaches, Habermas’ and Luhmann’s theories allow for the formulation of important criteria of the legitimacy of transnational and global political arrangements. Both try to find a new adequate mode of legitimation in a society characterised by deflation and fragmentation of social meanings and values. According to them the only salvation to ensure society-wide acceptance and recognition of processes and results of will-formation and decisionmaking lies in the procedural dimension. Habermas opts for the redemption of the prototypical idea of democracy, whereby the subjects of legislation must understand themselves as its originators. Through participation they have the chance to emphasise relevant perspectives and considerations and in this way facilitate the best rational decision as possible. In contrast, Luhmann sees the potential for stabilisation of social interaction primarily in the entelechy of political and judicial procedures. Because ‘recruitment- and programming decisions’ in the highly complex contexts of transnational and global governance cannot be legitimised by national vote and legislature anymore, the opening of political procedures and role expectancies seems to be inevitable. When governments and international organisations are increasingly forced to admit

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non-state actors within transnational networks of power, the traditional distribution of influence and power between political procedure and its environment must shift. More and more, decision making is turned into a horizontally governed mutual process of negotiating and learning. Civil society actors exert immediate power both through the indirect influence exercised on rules of procedure and role expectations and the direct contribution in decision finding. (5) The (inter-)cultural dimension: Legitimating rationalities applied by political actors always have a cultural dimension. Cultural conditions structure the space of possibilities, in which the instances of legitimisation defined by Weber – tradition, charisma, values and legislature – can produce their effect in concrete implementation. Within the so defined ‘political-epistemological realm’ certain strategies of legitimisation are allowed, supported and reinforced. Others are rejected and marginalised or even banned. Civil society actors, especially in trans-boundary and global contexts, are carriers and co-designers of their own cultures as well as mediators between different cultural and political rationalities. In transnational and global processes of governance they have to meet a huge challenge with regard to their management of legitimacy. Actually, they have to manage the cultural difference between their home country and the country where they work. In concrete terms, this means deciding which role to play and which rationality to use in a project, for example, in international development cooperation or peace processes. Two things need to be considered at the same time. On the one hand, strategies of legitimation and subjectivation encountered in the country of destination may not be judged unilaterally according to one’s own cultural and ethical criteria. On the other, the goal cannot consist of striving opportunistically for legitimacy at any price. A preferable approach would be to determine on the background of one’s own normative criteria and convictions, towards which actors, institutions and political-cultural milieus, acceptance and recognition, that is, legitimacy, are aspired. As a long-term rule, sustainable legitimacy in accordance with the own mandate is preferable over a tempting situational or ‘instant’ legitimacy. This task is so much more difficult because cultures under the influence of trans-boundary communication, economic exchange and migration can no longer be clearly differentiated; instead hybrid constellations formed by the overlap and amalgamation of different cultures prevail (Reckwitz, 2001, pp. 180 et seq.).

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(6) The systemic dimension: In any constellation of rule or power, the involved governmental, economic and civil society actors’ sources and requirements of legitimacy coexist in space and time. This is especially true for cross-boundary and global governance networks. The legitimatory principles and strategies of the actors can strengthen, clash with or neutralise each other. For a certain period of time, they have the tendency to form a more or less consistent legitimatory arrangement.11 Therefore, the democratic legitimisation of trans-boundary political processes requires productive normative and institutional mediation between the highly fragmented rationalities of actors involved (Habermas, 1998, pp. 105 et seq.). Civil society actors contribute in diverse roles to this bargaining (for example monitoring, supplying and ensuring transparency, offering expertise or representing especially marginalised group interests). Functioning networks form a relatively stable, reliable social context which enables the development of mutual trust (Luhmann, 1984, pp. 179 et seq.). Only on this basis, a shared identity and solidarity as well as institutional routines regarded as legitimate can arise (Habermas, 1998, pp. 110 et seq.), which in turn provide for the material and ‘symbolical safeguarding’ of trustworthy relationships (Luhmann, 1984, p. 180). Civil society organisations especially depend on the leap of faith ensured and accumulated jointly with other actors in social networks, which may considerably extend their political weight and influence (ibid.). With the disposal of trust and social capital12 (Bourdieu, 1985, p. 248), civil society actors can deploy power among others in the form of ‘social control’ and ‘rule enforcement’ (Portes, 1998, pp. 9 et seq.). At the same time, the existence of networks provides the social background for the legitimisation of this power.

Notes 1. ‘The actors may ascribe legitimacy to a social order by virtue of […] valuerational faith: valid is that which has been deduced as an absolute’ (Weber, 1968a, p. 36). 2. Lemke observes with a view to the belief in the legitimacy of judicial rule, that people do not adhere to laws simply because ‘they were generated according to formally correct procedure. It takes, more than that, a fundamental “belief” (for example in “ideologies” such as parliamentarianism, constitutional legality or pluralism)’ (2001, p. 93, n. 3). 3. As synonyms for charisma, Weber names ‘prove’, ‘recognition’ and ‘trust’ (Weber, 1968b, p. 242).

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4. Weber used the concept of legitimacy in contexts of life situations when he spoke, for example, of the human need to ‘legitimise’ their own lifestyle and circumstance. He labelled this tendency as ‘a need for psychic comfort about the legitimacy’, for example for the justification of ones own happiness ‘whether this involves political success, superior economic status, bodily health, success in the game of love, or anything else’ (Weber, 1968b, p. 491). 5. An honorary juryman, for example, may not be held responsible for a court ruling he supported by an employer it affected. 6. The system immunises itself ‘not against the “no”, but with the help of the “no”, it protects itself not against changes, but with the help of changes against torpor in entrenched, but no longer environmentally adequate patterns of behaviour. The immune system does not protect the structure, but the autopoiesis, the enclosed self-production of the system’ (Luhmann, 1984, p. 507; emphasis in the original). 7. ‘Science itself can only see something in the context of its own research programs, in the light of its own spotlights, and it is futile to induce it to exceed its own competence […] For politics, therefore, a rather negative rule of confinement is resultant: that it should avoid making decisions in matters where there is the risk that science would know better’ (Luhmann, 1996, p. 173). 8. ‘Thanks to its procedural properties, the democratic process has its own mechanisms for securing legitimacy; it can, when necessary, fill the gaps that open in social integration, and can respond to the changed cultural composition of a population by generating a common political culture’ (Habermas, 2001, p. 74). 9. Foucault formulates this correlation as the two meanings of the word subject: ‘subject to someone else by control and dependence, and tied to his own identity by a conscience or self-knowledge. Both meanings suggest a form of power which subjugates and makes subject to’ (Dreyfus and Rabinow, 1982, p. 212). 10. The characteristic trait of power is that some people can claim more or less total control over other people – but never in an exhaustive or coercive way (Foucault, 1988, p. 66). 11. Foucault defines the reciprocity of legitimising relations with his formula of ‘leading of leaders’ (1987b, p. 255). With this seemingly paradoxical term, he wants to clarify that in democratic rule and power relations leaders’ aspiring to legitimacy are dependent on the disposition of the legitimately led subjects and vice versa. 12. Bourdieu defines trust and social capital respectively as ‘the aggregate of the actual or potential resources which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance or recognition’ (1985, p. 248).

References A. Arato and J. L. Cohen (1992) Civil Society and Political Theory (Cambridge, MA: Cambridge University Press). P. Bourdieu (1985) ‘The Forms of Capital’ in J. G. Richardson (ed.), Handbook of Theory and Research for the Sociology of Educations (New York: Greenwood), pp. 241–58.

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I. Clark (2003) ‘Legitimacy in a Global Order’, Review of International Studies, 29, Special Issue, December, pp. 75–98. J. Cohen (1996) ‘Procedure and Substance in Deliberative Democracy’ in S. Benhabib (ed.), Democracy and Difference: Changing Boundaries of the Political (Princeton: Princeton University Press), pp. 95–119. J. Cohen and C. Sabel (1997) ‘Directly-Deliberative Polyarchy’, European Law Journal, 3, 4, pp. 313–42. M. Dean (1994) Critical and Effective Histories: Foucault’s Methods and Historical Sociology (London: Routledge). H. L. Dreyfus and P. Rabinow (1982) Michel Foucault: Beyond Structuralism and Hermeneutics (Brighton: Harvester Wheatsheaf). B. Flyvbjerg (1998) ‘Habermas and Foucault: Thinkers for Civil Society?’, The British Journal of Sociology, 49, 2, pp. 210–33. R. Forst (2001) ‘The Rule of Reasons: Three Models of Deliberative Democracy’, Ratio Juris, 14, 4, pp. 345–78. M. Foucault (1977) Der Wille zum Wissen. Sexualität und Wahrheit 1 (Frankfurt a. M.: Suhrkamp). M. Foucault (1978) Dispositive der Macht (Berlin: Merve). M. Foucault (1985) Freiheit und Selbstsorge (Frankfurt a. M.: Materalis). M. Foucault (1987a) The Use of Pleasure: The History of Sexuality, Volume 2 (London: Penguin). M. Foucault (1987b) ‘Das Subjekt und die Macht’ in H. L. Dreyfus and P. Rabinow, Michel Foucault: Jenseits von Strukturalismus und Hermeneutik (Frankfurt a. M.: Attenäum), pp. 243–61. M. Foucault (1988) ‘Für eine Kritik der politischen Vernunft’, Lettre Internationale, 1, pp. 58–66. M. Foucault (1991) ‘Governmentality’ in G. Burchell, C. Gordon and P. Miller, The Foucault Effect: Studies in Governmentality (London: Harvester Wheatsheaf), pp. 87–104. M. Foucault (1992) Was ist Kritik? (Berlin: Merve). M. Foucault (1993) ‘About the Beginning of the Hermeneutics of the Self’, Political Theory, 21, 2, pp. 198–227. M. Foucault (1994a) ‘Table ronde du 20 mai 1978’ in M. Foucault, Dits et Ecrits IV (Paris: Gallimard/Seuil), pp. 20–34. M. Foucault (1994b) ‘Politik und Ethik’, Deutsche Zeitschrift für Philosophie, 42, pp. 703–8. M. Foucault (2005) Schriften, Bd. 4: 1980–1988 (Frankfurt a. M.: Suhrkamp). H. Goldman (1988) Max Weber and Thomas Mann: Calling and the Shaping of the Self (Berkeley: University of California Press). H. Goldman (1992) Politics, Death, and the Devil: Self and Power in Max Weber and Thomas Mann (Berkeley: University of California Press). J. Habermas (1973) Legitimationsprobleme im Spätkapitalismus (Frankfurt a. M.: Suhrkamp). J. Habermas (1990) Strukturwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft. Mit einem Vorwort zur Neuauflage 1990 (Frankfurt a. M.: Suhrkamp). J. Habermas (1992) ‘Zur Rolle von Zivilgesellschaft und politischer Öffentlichkeit’ in J. Habermas, Faktizität und Geltung (Frankfurt a. M.: Suhrkamp), pp. 399–467.

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J. Habermas (1997) (1981) Theorie des kommunikativen Handelns, Bd. I (Frankfurt a. M.: Suhrkamp). J. Habermas (1998) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: Polity Press). J. Habermas (2001) The Postnational Constellation: Political Essays, translated, edited and with an introduction by Max Pensky (Cambridge, MA: MIT Press). J. Habermas (2005) ‘Eine politische Verfassung für die pluralistische Weltgesellschaft?’ in J. Habermas, Zwischen Naturalismus und Religion (Frankfurt a. M.: Suhrkamp), pp. 324–65. J. Heidorn (1982) Legitimität und Regierbarkeit. Studien zu den Legitimitätstheorien von Max Weber, Niklas Luhmann, Jürgen Habermas und der Unregierbarkeitsforschung (Berlin: Duncker and Humblot). K.-U. Hellmann (1996) ‘Einleitung’ in N. Luhmann, Protest. Systemtheorie und soziale Bewegungen, herausgegeben und eingeleitet von Kai-Uwe Hellmann (Frankfurt a. M.: Suhrkamp), pp. 7–45. W. Hennis (1996) Max Webers Wissenschaft vom Menschen: Neue Studien zur Biographie des Werks (Tübingen: J. C. B. Mohr/Paul Siebeck). T. Jakobi (2000) Ansätze der Theorie deliberativer Demokratie. Arbeit zur Erlangung eines Magister Artium (Heidelberg: Universität Heidelberg). S. H. Kim (2000) ‘“In Affirming Them, He Affirms Himself”. Max Weber’s Politics of Civil Society’, Political Theory, 28, 2, pp. 197–224. S. Lange (2003) Niklas Luhmanns Theorie der Politik. Eine Abklärung der Staatsgesellschaft (Wiesbaden: Westdeutscher Verlag). T. Lemke (2001) ‘Max Weber, Norbert Elias und Michel Foucault über Macht und Subjektivierung’, Berliner Journal für Soziologie, 11, 1, pp. 77–98. T. Lemke (2006) Gouvernementalität und Biopolitik (Wiesbaden: VS Verlag fur Sozialwissenschaften). N. Luhmann (1983) Legitimität durch Verfahren (Frankfurt a. M.: Suhrkamp). N. Luhmann (1984) Soziale Systeme. Grundriß einer allgemeinen Theorie (Frankfurt a. M.: Suhrkamp). N. Luhmann (1993) ‘Protest Movements’ in N. Luhmann, Risk: A Sociological Theory (Berlin: Walter de Gruyter), pp. 125–44. N. Luhmann (1996) ‘Systemtheorie und Protestbewegungen. Ein Interview’ in N. Luhmann, Protest: Systemtheorie und soziale Bewegungen, herausgegeben und eingeleitet von Kai-Uwe Hellmann (Frankfurt a. M.: Suhrkamp), pp. 175–200. N. Luhmann (2000) Die Politik der Gesellschaft, herausgegeben von André Kieserling (Frankfurt a. M.: Suhrkamp). H. Mandt (1998) ‘Stichwort Legitimität’ in D. Nohlen (ed.), Wörterbuch Staat und Politik (Bonn: Bundeszentrale für politische Bildung). J. Miller (1993) The Passion of Michel Foucault (New York: Simon and Schuster). J. Mittelstraß (ed.) (1995) Enzyklopädie Philosophie und Wissenschaftstheorie, Bd. 2 (Stuttgart/Weimar: Verlag J. B. Metzler). P. Niesen (2008) ‘Deliberation ohne Demokratie? Zur Konstruktion von Legitimität jenseits des Nationalstaats’ in R. Kreide and A. Niederberger (eds), Transnationale Verrechtlichung. Nationale Demokratien im Kontext globaler Politik (Frankfurt a. M., New York: Campus), pp. 240–59 B. Peters (1994) ‘Der Sinn von Öffentlichkeit’ in F. Neidhardt (ed.), Öffentlichkeit, öffentliche Meinung, soziale Bewegungen, Sonderheft 34 der Kölner Zeitschrift

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für Soziologie und Sozialpsychologie (Opladen: Westdeutscher Verlag), pp. 42–76. A. Portes (1998) ‘Social Capital: Its Origins and Applications in Modern Sociology’, Annual Review of Sociology, 24, 1, pp. 1–24. A. Reckwitz (2001) ‘Multikulturalismustheorien und der Kulturbegriff: Vom Homogenitätsmodell zum Modell kultureller Interferenzen’, Berliner Journal für Soziologie, 11, 2, pp. 179–200. W. Reese-Schäfer (1999) Niklas Luhmann: Zur Einführung (Hamburg: Junius Verlag). T. Schabert (1986) ‘Power, Legitimacy and Truth: Reflections on the Impossibility to Legitimise Legitimations of Political Order’ in A. Moulakis (ed.), Legitimacy/ Legitimité. Proceedings of the Conference held in Florence, June 3 and 4, 1982 (Berlin: Walter de Gruyter), pp. 96–104. U. Schliesky (2004) Souveränität und Legitimität von Herrschaftsgewalt: Die Weiterentwicklung von Begriffen der Staatslehre und des Staatsrechts im europäischen Mehrebenensystem (Tübingen: Mohr Siebeck). R. Schmalz-Bruns (2005) ‘Demokratie im Prozess der Globalisierung: Zur Demokratieverträglichkeit von Global Governance’ in M. Behrens (ed.), Globalisierung als politische Herausforderung. Global Governance zwischen Utopie und Realität (Wiesbaden: VS Verlag für Sozialwissenschaften), pp. 79–98. T. Strong (1992) ‘What Have We to Do with Morals: Nietzsche and Weber on History and Ethics’, History of Human Sciences, 5, 1, pp. 9–18. M. Weber (1968a) Economy and Society: An Outline of Interpretive Sociology, Volume 1 (Berkeley, CA: University of California Press). M. Weber (1968b) Economy and Society: An Outline of Interpretive Sociology, Volume 2 (Berkeley, CA: University of California Press). M. Weber (1975) Roscher and Knies: The Logical Problems of Historical Economics (New York: Free Press). M. Weber (1985) ‘“Churches” and “Sects” in North America: An Ecclesiastical Socio-Political Sketch’, translated by Colin Loader, Sociological Theory, 3, 1, pp. 7–13 (Orig. pub. 1906). M. Weber (1994) ‘Parliament and Government in Germany under a New Political Order’ in M. Weber, Political Writings, edited and translated by P. Lassmann and R. Speirs (Cambridge: Cambridge University Press), pp. 130–271.

3 Legitimating INGO Advocacy: The Case of Internal Democracies Darren Halpin and Peter McLaverty

While significant debate exists with respect to the historical novelty of contemporary processes of internationalisation and globalisation (cf. Held and McGrew, 2002; Scholte, 2005), there is a general consensus that circumstances have fundamentally altered the way governance is enacted beyond the nation state.1 And, regardless of one’s normative view, the argument that many contemporary issues necessitate coordinated action across national borders is persuasive. Trade relations and human rights issues, for example, can benefit from coordinated action among nation states. Increasing attention is being paid to the way in which the everyday lives and opportunities of the world’s citizens are being shaped by the decisions and deliberations of International Governmental Organisations (IGOs). As such, concerns are being raised about the poor level of democratic accountability of such institutions to those who are affected. One does not have to be a convicted normative cosmopolitan to accept that as key decisions are increasingly hammered out in such global institutions, those same institutions need to demonstrate forms of democratic accountability to the citizens affected. There is some acceptance that the legitimacy afforded IGOs by the mere fact that they are composed of member states – most of which are democratically elected governments – is stretched as the scope of decisions made by such institutions, and their impact, grows (Anderson and Rieff, 2005, p. 34). This is all the more critical as evidence suggests that IGOs act with increasing, albeit modest, levels of autonomy from member states (Scholte et al., 1999, p. 108). While criticism of IGOs, such as the UN, has most often been levelled on performance grounds, it is now shifting to concerns over democratic legitimacy (Falk, 2006). This connects with a broader thread in the literature that diagnoses a ‘democratic deficit’ in most long established Western liberal 55

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democracies; typically on the back of declining voter turnout, falling party memberships and indicators that citizens have lost trust in politicians (Dalton, 2004; 2006; Pattie et al., 2004). Yet, arguably, the problem of democratic legitimacy is more pronounced in global forms of governance. The poor capacity of nation states to govern ‘de-territorialised’ economic flows and social and cultural relations, the absence of ‘nation state-like’ mechanisms to legitimate emerging forms of global governance (an absence of a global government and parliament or global citizenship), and the dominance of large nation states in many IGOs, are all cited as reasons for democratic deficits in global governance. Scholte (2002, p. 289) sums up the mood when he argues that ‘it is no exaggeration to say that contemporary globalization has provoked a crisis of democracy’. He asks, ‘How can post-sovereign conditions be fashioned to yield adequate popular participation, open debate, consultation and representation as well as transparency and democratic accountability?’ (Scholte et al., 1999, p. 108). For the purposes of our discussion in this chapter, we assume that this diagnosis of democratic deficit is established and accepted; but we acknowledge that not everyone will agree. This central question has solicited various responses. With a desire to address the democratic deficit in global governance, some have advocated strengthening IGOs and/or working towards establishing a form of global government (cf. Held, 1995, pp. 267–86). Held has called for the development of mechanisms at the global level that in many ways reflect those found in nation states, such as directly elected parliaments or assemblies. Held suggests the establishment of a popularly elected chamber of the United Nations and a role for directly elected assemblies at the regional level, above the level of the nation state, along with a greater role for regional representatives. He also sees an important role for INGOs beyond the nation state. While accepting, as suggest Anderson and Rieff (2005, p. 34), that the mere participation of nation states in global governance is not enough to plug democratic deficits, others maintain that global governance can be democratised by the reform of nation states themselves. For instance, Colas (2002) favours attributing democratic agency to nation states. But many scholars have also advocated an engagement with (organised) global civil society – or INGOs – as a way to move forward (see for example Falk, 2006; Scholte, 2000; 2002; Keck and Sikkink, 1998; Van Rooy, 2004). Risse (2006, p. 180), for example, argues ‘democratic government beyond the nation state faces serious hurdles. At least, mechanisms to enhance democratic legitimacy cannot simply be transposed from the domestic level onto the international level. The main problem of

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transnational governance concerns the lack of congruence between those who are being governed and those to whom the governing bodies are accountable’. He rejects the impossibility of ‘democratic governance beyond the nation state’; he argues that ‘input legitimacy’ is an important focus for developing global democracy (Risse, 2006, p. 180). He concludes ‘The problem for legitimate governance beyond the nation state is to improve on external accountability, to make sure that the various governance bodies […] can be held responsible by those who are affected by their decisions and rules’. He continues with respect to INGO involvement ‘As a result, transnational governance arrangements ought to include “external stakeholders” as a way of improving both their participatory quality and their effectiveness’ (Risse, 2006, p. 195). This option, endorsing the role of organised global civil society, has garnered a high level of academic interest and debate, and as such we concentrate much of our attention on this proposed resolution to the global democratic deficit.

The ‘Global Civil Society’ option: Is it ‘representation’ or ‘voice’? The growth of INGOs and the increasing level of intensity and frequency of their engagement with IGOs (cf. Gordenker and Weiss, 1996, p. 44; Scholte et al., 1999, p. 109; Glasius et al., 2006a, p. 408), it is argued, provide a base from which to build new forms of democratic accountability and legitimacy (see for example, Keck and Sikkink, 1998; Scholte, 2002; Van Rooy, 2004). As Collingwood and Logister (2005, p. 181) observe, some scholars argue that: INGOs can play a critical role in democratising the global order and achieving greater distributive justice. INGOs can act as agents for change in the reform or radicalisation of current political and economic structures, offering an attractive alternative to the centuriesold rivalry between states. They can hold other state and non-state actors to account; act as democratising agents, giving under-represented peoples a ‘voice’ at the global level; and social and moral issues onto the global agenda. The notion that global civil society, or INGOs, can contribute to plugging the democratic deficit is echoed by many IGOs. Most of these institutions have had long standing arrangements in place to consult with groups of various types. What is unique about the current period is that these relations with groups are being viewed through a different lens.

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For example, the United Nations has reflected on how best to engage with civil society, forming a Panel of Eminent Persons on United Nations-Civil Society Relations which reported in 2004. The Panel’s report argues that the engagement with INGOs ‘could help the United Nations do a better job, further its global goals, become more attuned and responsive to citizens’ (United Nations, 2004, p. 8). Similar noises are evident at the World Trade Organisation (WTO) and at the European Union (EU). We come to the question of the terms on which they engage with INGOs in a moment. The academic and IGO endorsement of INGOs or organised global civil society does raise the question as to precisely ‘how’ their presence in global governing arrangements and processes remedies the democratic deficit. If the primary deficit globally is in the lack of democratic accountability between global citizens affected by global governance and those making decisions, as Risse claims above, how is it that INGOs can constitute such a linkage? While many IGOs seem to endorse the idea that global civil society can address democratic deficits (albeit that they increasingly explore accreditation as a tool to control groups access), commentators and scholars are generally becoming more cautious about the ‘idea of civil society as panacea’ (Glasius et al., 2006b, p. 21). Colas (2002, p. 28) argues that there are several ‘thorny questions’ facing INGOs. He says ‘the democratic claims in favour of global civil society immediately raise thorny questions about its agents: who are the constituents of global civil society? How has their mandate been legitimated? What is the remit of their representation? How can their actions be made accountable?’ In a superb review article, Collingwood and Logister (2005, p. 179) argue there have been three main criticisms levelled at INGOs in this context: (a) that there are conflicts between the constituency that supports them (usually in the North) and the constituency they seek to help (usually in the South), (b) that there is an effectiveness and/or credibility gap – a discrepancy between what they say they do and what they actually do, or between what they say are the facts and what is really going on, and (c) that there are insufficient procedural constraints on INGOs (absence of internal democracy, participation and accountability). In processing these debates, three main positions seem to be emerging about how the democratic role of INGOs – and global civil society – can be retrieved. (a) The democratic ‘representation’ variant The role foreshadowed for organised global civil society by various theorists, global institutions and sometimes groups themselves, has created

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a set of heightened expectations which has attracted critical scrutiny. One of the chief positions emerging is that democratic agents need also to be democratic practitioners: INGOs must have functioning internal democracies. It is important to be clear that we mean democratic representation. In a recent contribution, Rehfeld (2006, p. 2) makes the salient point that one needs to separate out democratic and non-democratic political representation. He concludes that ‘The standard, democratic account [of representation] thus turns out to be merely a special case of the more general phenomenon: political representation arises simply by reference to a relevant audience accepting a person as such. Thus, political representation, per se, is not a particularly democratic phenomenon at all’. We are not in favour of such an ‘integrated’ approach to representation (integration could be a force for conflation of usage – and the democratic connection could become lost) but we come to these other forms of ‘representation’ in the next section. An emerging consensus is that claims for associations contributing to ameliorating democratic deficits – whatever the ‘level’ of governance – rest on a set of assumptions about group practices. The asserted benefits from the enhanced status of groups relies, according to Perczynski (2000), on the accuracy of the assumption that groups are, or at least could be, voluntary, internally democratic, accountable to members and provide arenas for member deliberation. This approach creates an ideal type of ‘democratic’ INGO, and invites comparisons with group practice as a basis for ‘correcting’ imperfections in global civil society. As will become evident, it forms the basis for a powerful critique of INGO legitimacy measured against ‘representation’. It has not taken long for scholars to ‘find’ that many INGOs do not have elaborate internal democracies. McLaverty (2002) observes ‘that there is nothing intrinsically democratic about “civil society organizations”’ (McLaverty, 2002, p. 310; emphasis in the original), and that ‘in reality they often fall short of democratic principles’ (McLaverty, 2002, p. 314). This insight is often repeated for INGOs at all levels of governance (see Lyons, 2001; Warleigh, 2001). Amidst growing criticisms of global civil society as unaccountable and undemocratic, some advocates have conceded the need for change. There are clear concerns that the ‘civil society as panacea’ argument – and its endorsement by some IGOs and INGOs – has been in some respects unhelpful; with a risk that increased scrutiny on the democratic legitimacy of INGOs may well threaten their popular credibility. For some, the finding of poor internal democracy sparks a call for better

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internal democratic practice by INGOs. As regards the role of INGOs in global politics, Sikkink (2002, p. 301) argues that ‘international NGOs and transnational networks, coalitions, and movements enhance deliberation and representation in international institutions by providing voices and ideas that were previously absent. At the same time, NGOs and networks need to address their own asymmetries and questions of accountability and transparency, so they can enhance their internal democracy while helping to democratize international institutions’. As discussed earlier, IGOs are stating that INGOs can assist in addressing their democratic legitimacy deficits. But, the type of approach outlined by Sikkink is also evident in the qualifications IGOs are adding to their endorsement of INGO engagement. Many IGOs have themselves endorsed a view that enhanced access comes with more responsibilities. For example, in its 2001 White Paper on European Governance, the European Commission implies a need to not just engage with any INGO, but with those of a certain quality. It argues that ‘Civil society must itself follow the principles of good governance’ (Commission of the European Communities, 2001, p. 15). Although, as Greenwood and Halpin (2007) suggest, in practice the consensus at the Commission is to operate a system that operationalises ‘representativeness’ in ways that do not insist on internal democracy (such as insisting that associations have a broad coverage across EU member states). Other institutions have been through similar debates. In a connected vein, the report of the UN Panel of Eminent Persons on United Nations-Civil Society Relations called for a ‘more selective and not just increased engagement’ with INGOs (United Nations, 2004, p. 8). Mason (2004) reports a similar debate at the WTO. (b) The ‘voice’ variant Perhaps sensing the difficulties with the above approach – operationalising internal democracies in many INGOs may be difficult or outright impossible (see Halpin, 2006) – some are looking at other ways to retrieve the role of INGOs as democratic agents. At the other end of the spectrum is the view that such groups simply ‘voice’ concerns and as such need no internal checks delivered by way of internal democracy. In this vein, Wolf (2006) argues that in a market place of ideas there is little justification for vetting access for any group – regardless of view, internal structure or funding source. Risse (2006, p. 190) argues that the criticisms of INGOs over input legitimacy problems ‘misses the mark’. He says that ‘All they have to wield influence in world politics is moral authority and expert knowledge in their respective organizations

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“issue-areas” of concern. [I]NGOs’ moral authority however, is directly linked to claims that they represent the common good in global affairs as well as the “voices of the weak and powerless”’. Where others construct democratic legitimacy as based on representation – and thus generated by internal democracies and accountability to constituencies – this position takes an entirely different approach. Underpinning this view is the notion that INGOs should construct ‘external’ chains of accountability. While internal accountability has INGOs being held to account by internal supporters/members, external accountability has groups held to account by those who are affected by decisions (most often presented as the ‘global public’). By the mere fact that the reputations of groups decline if their ‘expert’ knowledge, or their commitment to global values, is found to be base-less the groups are said to be held to account (a form of external accountability). Risse (2006, p. 190) says ‘the influence of [I]NGOs in world politics is directly linked to their external accountability and legitimacy. Their vulnerability to threats to their reputation serves as a powerful control mechanism to keep them honest’. This accountability mechanism justifies the abandonment of the need for internal legitimacy. A related approach emerges in the work of Florini (2000, p. 236, cited in Sikkink, 2002, p. 315), who argues that poor and inaccurate arguments and ideas are eventually noticed by supporters, who will seek change through ‘voice’, or ultimately ‘exit’. As such, a ‘market place for ideas’ is self-regulating. The notion of groups being popularly accountable through a widespread ‘acceptance’ of their arguments, values and activities, associated with the idea of ‘external accountability’ is not one that can simply be dismissed. However, it is based on a very loose idea of accountability, in which, at best, people give implicit support for the groups’ values, aims and so on, rather than explicitly giving their support. It is difficult to know how people collectively would express their lack of support or hostility to any group. Moreover, citizens may accept that a group is doing useful work and tacitly support its activities, without in any sense endorsing its policies or approach on any specific issues. It can at least be suggested that an effective form of democratic accountability demands more active opportunities for people to make their opinions known and control what is happening. In the context of discussions about the role INGOs can play in democratising global governance – dealing with the democracy deficit – Van Rooy advocates a model of ‘supplementary democracy’. This model draws on both the external and internal forms of accountability discussed above. She says ‘The underlying argument is that voice is more valuable

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to democracy than vote. Or in other words, it is more important to guarantee increased participation (a greater variety of voices) in existing structures of global governance than it is to create new elected positions for non-governmental actors’ (Van Rooy, 2004, p. 137). Following Edwards, she says that ‘voice is the bedrock of participatory democracy and voting the bedrock of representative democracy’ (Van Rooy, 2004, p. 138). Van Rooy seems to argue that groups should stick to ‘voice’ legitimated on non-representative grounds and that this is insufficient to address the democratic deficit; that is, we still need representative institutions. Nevertheless she still sees group involvement as enhancing global democracy. She asks ‘Why do I think that supplementary democracy might increase the democratic quality of global governance?’ (Van Rooy, 2004, p. 140). Her response is three-fold. She argues that INGO involvement in policy processes i) delivers more ethical policies ii) makes for better decisions in the public interest – ‘If all voices are heard, there is at least a chance that “good quality” ones will also get their day’ (Van Rooy, 2004, p. 142), and iii) enhance accountability – ‘Still another reason – perhaps the most important reason for democracy – is that increased participation would improve the surveillance of global institutions, thus adding further pressure for improved transparency and accountability in those bodies’ (Van Rooy, 2004, p. 142). Of course, these statements rely to a large extent on a normative definition of which groups constitute global civil society: presumably what Chambers and Kopstein (2001, pp. 844 et seq.) call hate groups, such as the Ku Klux Klan and the Nation of Islam are not going to contribute to ‘ethical’ or ‘good quality’ policy? But what has this – if anything – to do with democratic legitimacy? These legitimacies may in fact generate authority for group advocacy, but not founded on a representative democratic nature. (c) A plurality of legitimacies? It is possible, then, to crudely present the contending views on the issue of legitimating group advocacy into two opposing camps. On the one hand, the ‘representation’ approach implies that internal democracies and opportunities for participation by members/supporters of groups (whether they be citizens or individual businesses) are necessary to legitimate group advocacy. The ‘market place of ideas’ approach disputes the entire notion that groups should conform to the internal democratic standards or that this delivers legitimacy. Of course, the stark option presented above belies a range of alternative perspectives on legitimising INGO advocacy. The better articulated of these gesture

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to internal democracy yet subsume it into a broader plurality of legitimacy(ies). This perspective, as such, does not explicitly confront the issue of whether all groups should be compared to a democratic ideal type, or, at the least, holds it in abeyance. An emerging position is that groups gather democratic legitimacy (simultaneously) from various sources. For instance Wolf (2006) contrasts legitimacy granted by processes of authorisation – such as that delivered by internal democratic decision making – with the acceptance of a group as ‘an authority’ by virtue of other forms of legitimacy. As such, he suggests that INGOs attract and generate legitimacy from a range of sources. He says ‘Obviously, this conceptualization of inputlegitimacy [within groups] does not conform to the liberal notion of democratic legitimacy’ (Wolf, 2006, p. 212). But he seems to reject, along with other writers mentioned above, any notion that representative and majoritarian forms of democratising governance available at the nation state level have any possibility of being reassembled at the global level. Thus, he seems to assume that alternatives are necessary. A good deal of recent scholarship has been about identifying these ‘other’ forms of legitimacy. Scholars such as Van Rooy (2004) highlight diverse sources of legitimacy. She reviews the various ways in which INGOs generate legitimacy. For her, ‘representation’ – she includes within this membership (size, breadth and depth) and internal democracy (election, control, and accountability) – is only one source of legitimacy: and not a dominant one at that. Other bases are as, if not more, important: these include the deployment of ‘victimhood’, ‘expertise’, ‘experiential evidence’, and ‘moral authority’ (Van Rooy, 2004, pp. 63–97) (see Table 3.1). Similarly, Keck and Sikkink (1998, p. 16) elaborate key ‘strategies of influence’, none of which rely on internal democracy for their power or authority.

Table 3.1 Legitimating advocacy • Representation Membership (size, breadth and depth) Internal Democracy (election, control, accountability) • Victimhood • Expertise • Experiential evidence • Moral authority Source: Compiled from Van Rooy (2004)

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Sorting out what sources or types of legitimacy are necessary when is for some related to the extent of policy engagement between groups and governmental organisations. That is, exceptions to internal democracy are granted where the organisations are not involved in actual decision making. For instance, Edwards and Zadek (2002, cited in Van Rooy, 2004, p. 138) say, Any non-state actor is entitled to voice and opinion. This is a basic human right that need only be subject to the minimum amount of regulation required to guard against slander, violence or discrimination. No other legitimacy is required. But negotiating a treaty is a very different matter, in which detailed rules may be essential to preserve genuine democracy in decision making. In this case, legitimacy through representation is essential. The approach concurs that group legitimacy can be gathered from various sources where the group is not directly involved in decision making (as per Van Rooy). While this legitimacy is suitable where policy is being discussed and debated, it is insufficient in terms of decision making. At this point, they argue, internal democracy (accountability and authorisation to constituencies) is necessary. The argument here is that if an INGO seeks only to voice an opinion on the world stage, then it need not require internal democratic processes to be legitimate. Recent work points to INGOs being able to influence the agenda on which IGOs work and also, in some cases, to directly influence policymaking and policy implementation. Increasingly, as shown above, NGOs are involved formally, as well as informally, in the work of bodies such as the EU and the UN. Martens (2005, pp. 45–94), in her study of the relationship between INGOs and the United Nations, has shown how INGOs in the areas of human rights and humanitarian aid are now linked into the whole policy process of the United Nations. As well as providing information, INGOs are involved in policy formation and in policy implementation. Such developments give INGOs an input into the policy process but the question of what this means for democracy still remains. For others, this admission that ‘representation’ is not always a model appropriate to legitimating INGO advocacy offers a suitable rationale to retract the entire ‘global civil society’ project. For example, Anderson and Rieff (2005, p. 29) suggest that INGOs have become imbued with far too weighty a set of expectations. They say that INGOs are not ‘representative’, but are ‘single-minded advocates – organisations with an

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axe to grind and a social mission to accomplish’ (Anderson and Rieff, 2005, p. 29). They simply state, with no hint of surprise, that ‘in the end, [I]NGOs exist to reflect their own principles, not to represent a constituency to whose interests and desires they must respond’ (Anderson and Rieff, 2005, p. 29). This argument prompts them to argue that INGOs should ‘assert themselves on the basis of their expertise and competence and, concomitantly, to give up their claims to intermediation and representation – that is, to give up the claim to constitute global civil society’ (Anderson and Rieff, 2005, p. 35). This insistence that groups lack a constituency highlights the lack of a clear definition of INGO.2 On the narrow (some may say normative) view of the likes of Van Rooy or Sikkink3 – that INGOs by definition pursue voice for the marginalised and righting injustice – this is a generally apt point. But if we take a more broad organisational approach, such as that of Scholte (INGOs meet certain organisational criteria), we could see many INGOs as having identifiable constituencies with attached interests (for example the International Chambers of Commerce). Other voices object to the ‘simple equation of democratization with the “pluralization” of global governance’ (Colas, 2002, p. 158). Colas expands, ‘many grassroots globalization and global governance theorists uncritically equate the global expansion of civil society and its attendant insertion into the processes of global governance with the improved prospects for democratization. Yet, as the discussion thus far has emphasized, there is nothing inherently democratic in the global reproduction of civil society, either within states or internationally through the institutions of global governance’ (Colas, 2002, p. 162). In reflecting on the state of the current debate, Sikkink (2002, p. 315) concludes that ‘It is very likely that there is no single model of either representation or accountability, but rather diverse strategies appropriate to organizations of different sizes and purposes’. The issue we want to focus on for the rest of this chapter relates to the broad question of whether internal democracy via the enfranchisement of the constituency being advocated for is necessary to legitimise INGO advocacy.

Representation and solidarity: Implementing internal democratic accountability As yet, we have treated all groups as though they were engaged in principally the same activity and logically could be treated and judged by the same metric in relation to legitimating advocacy. But is this the case?

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Here we argue that two ‘ideal type’ forms of advocacy are possible: representation and solidarity. Representation implies that group leaders affiliate the constituency they seek to advocate for. Thus, the affiliates (members or supporters) to the group are from the constituency whose interests are being advocated. By contrast, when groups affiliate people to support the interests of a separate constituency, these groups engage in solidarity. Solidarity is where the individuals affiliated to a group as supporters are not the same as the constituency whose interests the group is advocating for. The question is what form of advocacy is suitable and appropriate for what type of group? Here we argue that constituency matters. The problem is that representation is simply not able to be operationalised for some constituencies. Representation is available to constituencies that are human – those that are capable of presence and voice. Thus, groups can affiliate humans into a group, and humans can hold their representatives to account and authorise them to represent their views. However, representation is not available to non-human constituencies and future generations. Animals, plants, ecosystems, and the unborn are not capable of presence or of voice. They cannot hold representatives to account, nor authorise them. Thus, they cannot be democratically represented. This position draws on the work of Hannah Pitkin and John O’Neill. In her foundation work on representation, Hannah Pitkin (1967) distinguished between unattached and attached interests. Attached interests were those cases where people are represented. Representatives ought to then be expected to consult with those to which interests are attached. By contrast, unattached interests were those where no one can claim a privileged basis to represent it. Thus, consultation with individuals is less important. It is this broad approach that O’Neill (2001) identifies when he contrasts how (and if) representation can be operationalised for Human v. Non-human constituencies. For O’Neill, representation requires that a constituency can both authorise and hold accountable representatives. To do this the constituency must have voice and presence. The problem is that living humans (apart from young children) do have voice and presence, and can hold representatives accountable and authorise them – but non-human constituencies cannot. Therefore, he argues that humans can be represented but non-human constituencies can only have us humans organise to show solidarity with them. In sum, we agree with the argument that democratic representation should be a key to legitimating the advocacy of groups. Yet, we argue that some groups – those that advocate for non-humans, young

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children and future generations – are not in the representation game at all. This has implications for how one assesses groups like the WWF or Greenpeace. We suggest these are only capable of solidarity. As such, whether they enfranchise their supporters is not critical for the legitimacy of the group. For, the group must gather its legitimacy from nondemocratic forms: it cannot literally enfranchise nature, so it must draw on ‘epistemic’ forms of legitimacy. For instance, by referring to scientific argument or other expert forms of knowledge that support its claims to ‘know’ what is in the best interests of nature. Insisting on enfranchisement of supporters of solidarity groups is, we argue, not really enhancing the democratic legitimacy of the group – just making it better resourced and perhaps making the cause more electorally significant. This leaves us with groups that advocate for human constituencies. Here, we argue that such groups are capable of representation, and that they should affiliate their constituency and enfranchise them in internal democratic processes. The enfranchisement of constituency members clearly legitimates the advocacy of representation groups. For example, an organisation such as the International Chambers of Commerce can – and does – affiliate national chambers of commerce and related businesses. Its claim to represent the interests of this constituency is legitimated by internal processes that mean the group’s leaders are held to account and authorised by the same constituency. It is to groups capable of representation that the ‘representation’ account of legitimacy ought to apply – not to solidarity groups. Of course, not all groups capable of representation by virtue of advocating for a human constituency actually follow through with democratic representative practices; they do not affiliate their constituency and they do not enfranchise them into internal democratic processes. It is to this small section of groups that the critics of group democratic practices should most logically apply – they are democratic underachievers. Take for instance organisations that advocate for the blind, or for those suffering acute illness or the homeless. Many such groups do not affiliate the constituencies they seek to advocate for – they offer solidarity when they could offer representation. There are of course many practical reasons why such groups do not practise representation (see for instance Baggot et al., 2005 with respect to patient groups for terminally ill). As it happens, this under-achievement charge is probably most apt for global civil society groups. For instance, Amnesty International pursues the human rights of political prisoners, but does not enfranchise this constituency. Similarly, Oxfam, a charity pursuing human

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rights and poverty eradication globally, does not enfranchise the rural poor or those suffering human rights abuses. What little data exists on INGOs, suggest that by and large they are Western based organisations, funded by supporters in the west, to assist people in the south. As writers have commented, the most vociferous or powerful INGOs have a membership or a list of supporters that is dominated by people from the global north (see Glasius et al., 2006a, p. 408). People from poor countries have little input into those INGOs. While many of the INGOs may, therefore, claim either to speak on behalf of all of humanity (and sometimes nonhuman nature as well) or to promote the interests of people from the poor countries, much of humanity is not involved in the leading INGOs. Even within ‘northern’ societies where support for INGOs is stronger there are reasons to question the extent to which the groups represent the opinions of the people in those societies, whether through ‘internal’ or ‘external’ mechanisms.

What would an insistence on democratic representation achieve? As reviewed above, the mood of the literature and of IGOs is to insist that groups prove they are representative, or potentially be excluded from political influence. Leaving to one side the issue of the ‘practicality’ of exclusion (many of these groups actually influence through public opinion shaping and framing at agenda setting stages), such a move would exclude all solidarity groups with one stroke. Alternatively, it may motivate such groups to establish enfranchisement for their supporters – but as we have noted it is not at all clear that doing so would actually legitimate advocacy in any democratic sense. For instance, why would leaders of Greenpeace being held to account by supporters make their advocacy any more democratically legitimate? It may make expenditure more transparent, but this is a different question. The concern is that a focus on democratic representation would come at cross-purposes to the goal of political inclusion. For instance, the many constituencies that are human, but for which significant (perhaps insurmountable) obstacles lie in the way of affiliation and enfranchisement within a group, would be counted as undemocratic. It could be argued that groups such as Amnesty International and Oxfam would fit into this category. As it happens, probably predictably, these constituencies tend to be those with low levels of resources, the socially and economically marginalised, the politically unpalatable and the marginal. We take the view that the benevolent voice of well-meaning

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Table 3.2

What would be gained/lost by exclusion of undemocratic INGOs?

Gained

Lost

• Policy driven by groups that are representative – who do they speak for?

• Groups that spoke for non-humans have internal democracies with no clear purpose

• More certainty of the authority of group leaders

• Absence of many groups for non-humans – and no voice for these interests

• Policy more closely reflects desires of actual citizens

• Absence of many groups showing solidarity with hard to organise constituencies – and no voice for them in policy process

• Policy process more democratic and accountable

• Priority of democratisation may work against political inclusion?

group leaders pursuing a solidarity model is preferable to no voice at all for many groups. The second-best option of informal consultation – employment of constituency members where possible – as a way to foster some (albeit tenuous) forms of accountability are preferable to that exclusion (these points are summarised in Table 3.2). The quick fix of an insistence on representation, we argue, makes no sense to the probable target of the measures – groups that are only capable of solidarity – and then come to penalise groups that fall short of realising their representative potential for obvious organisational reasons.

Conclusion We distinguish between groups that seek support from well-meaning supporters – which we say practise solidarity – versus those that enfranchise the constituency whose interests are being advocated for – which we say practise representation. The first point to make is that the same criteria for their involvement in policy should not be applied to both sorts of groups. It is legitimate to expect groups that can represent human constituencies to be internally democratic if they are to play a role in the policy process. Such groups, through internal democracy, can help to improve decision making at the global level. However, it is unreasonable, from the perspective of enhancing global democracy, to expect solidarity groups to be organised democratically. Indeed, we

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question how such a move could enhance global democracy. We accept that solidarity groups, by promoting what group members and supporters see as the interests of those with whom the group expresses solidarity, can help to raise important issues in international policy forums. Along with other groups, solidarity INGOs can play an important role in the market place of ideas. We have set out the distinction between groups which can operate as the representative of humans and those groups that express solidarity in fairly stark terms. We have suggested that there is a clear distinction between the two types of groups. However, in practice this may not always be the case. We have suggested earlier that it is not unreasonable to expect groups whose constituency comprises living human beings to be organised democratically. Let us return to the examples of human rights groups, such as Amnesty International and anti-poverty groups, such as Oxfam, which we considered earlier. In principle, as their constituencies are living human beings, human rights groups and anti-poverty groups can be organised on democratic lines. In practice, the difficulties in such groups adopting a democratic structure are immense. Amnesty International, among its other activities, works for the release of ‘prisoners of conscience’. Prisoners of conscience are incarcerated and their activities are closely controlled. They are not free to engage in ‘political’ activities, including participating in the work of INGOs. Indeed, Amnesty International organises support for such people because of the constraints on their non-violent political activities. In practice, therefore, the problems of involving prisoners of conscience in the democratic workings of Amnesty International would be overwhelming. The very poorest people in the world who form part of Oxfam’s constituency by their very poverty are not in a position to engage in democratic activity within Oxfam. Such people are struggling to survive and often require urgent help. This is not to deny, however, that, in principle, some of Oxfam’s constituency of poor people, who are not in such dire and immediate need, could be involved in the democratic structures of a democratic INGO. The last points do not undermine the distinction between ‘representation groups’ and ‘solidarity groups’ but they do suggest that the distinction should be applied sensitively and that expectations of when democratic organisation is possible should respect practical circumstances. In summary, we would argue that global policymakers, such as IGOs, should listen to solidarity groups and to groups that represent humans through an internal democratic structure. However, we would be much more cautious about giving INGOs a direct role in international

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decision making. In the final analysis, democracy relates to ideas of government by the people and political equality. INGOs, despite the important role they can play in giving voice to some and in ensuring that issues are included on global governance agendas, do not, and we argue cannot, ensure equal voice for all or be effective vehicles for the global self-government of the people. Achieving democracy at the global level remains an immense task. INGOs have a role to play in improving the outcomes of international policy decisions but they cannot provide the answer to the global democratic deficit.

Notes 1. Global governance itself is a broad concept, and as Risse (2006, p. 180) makes clear, can rightly pertain to private modes of governance (for example governance without the state) such as fair-trade standards and the like. Here we focus upon public regulation pursued through IGOs. 2. For instance, they see Unions as separate from Civil Society – and liken them to political parties. 3. The academic cadre which Anderson and Rieff’s piece has as its audience.

References K. Anderson and D. Rieff (2005) ‘Global Civil Society: A Sceptical View’, in H. Anheier, M. Glasius, and M. Kaldor (eds) Global Civil Society 2004/5 (London: Sage), pp. 26–39. R. Baggot, J. Allsop and K. Jones (2005) Speaking for Patients and Carers: Health Consumer Groups and the Policy Process (Basingstoke: Palgrave Macmillan). S. Chambers and J. Kopstein (2001) ‘Bad Civil Society’, Political Theory, 29, 6, pp. 837–65. A. V. Colas (2002) International Civil Society: Social Movements in World Politics (Malden, MA: Polity Press). V. Collingwood and L. Logister (2005) ‘State of the Art: Addressing the INGO “Legitimacy Deficit”’, Political Studies Review, 3, 2, pp. 175–92. Commission of the European Communities (2001) European Governance: A White Paper, COM (2001) (Brussels: The European Commission). R. J. Dalton (2004) Democratic Challenges Democratic Choices (Oxford: Oxford University Press). R. J. Dalton (2006) Citizen Politics: Public Opinion and Political Parties in Advanced Industrial Democracies (Washington DC: CQ Press). M. Edwards and S. Zadek (2002) ‘Governing the Provision of Public Goods: The Role and Legitimacy of Non-State Actors’ in I. Kaul (ed.) Providing Global Public Goods: Managing Globalization (Oxford: Oxford University Press), pp. 200–25. R. Falk (2006) ‘Reforming the United Nations: Global Civil Society Perspectives and Initiatives’, in M. Glasius, M. Kaldor, and H. Anheier (eds) Global Civil Society Yearbook 2005/06 (London: Sage), pp. 150–86.

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A. Florini (2000) (ed.) The Third Force The Rise of Transnational Civil Society (Washington DC: Carnegie Endowment for International Peace). M. Glasius, M. Kaldor and H. Anheier (2006a) ‘Records’, in M. Glasius, M. Kaldor and H. Anheier (eds) Global Civil Society Yearbook 2005/6 (London: Sage), p. 408. M. Glasius, M. Kaldor and H. Anheier (2006b) ‘Introduction’ in M. Glasius, M. Kaldor, and H. Anheier (eds) Global Civil Society Yearbook 2005/06 (London: Sage), pp. 1–34. L. Gordenker and T. G. Weiss (1996) ‘Pluralizing Global Governance’, in T. G. Weiss and L. Gordenker (eds) NGOs, the UN and Global Governance (London: Lynne Rienner), pp. 17–47. J. Greenwood and D. Halpin (2007) ‘The European Commission and the Public Governance of Interest Groups in the European Union: Seeking a Niche between Accreditation and Laissez-Faire’, Perspectives on European Politics and Society, 8, 2, pp. 189–210. D. Halpin (2006) ‘The Participatory and Democratic Potential and Practice of Interest Groups: Between Solidarity and Representation’, Public Administration, 84, 4, pp. 919–40. D. Held (1995) Democracy and the Global Order (Cambridge: Polity Press). D. Held and A. McGrew (2002) Globalization/Anti-Globalization (Cambridge: Polity Press). M. Keck and H. Sikkink (1998) Activists beyond Borders: Advocacy Network in International Politics (Ithaca, NY: Cornell University Press). M. Lyons (2001) Third Sector: The Contribution of Nonprofit and Co-Operative Enterprise in Australia (St Leonards: Allen and Unwin). K. Martens (2005) NGOs and the United Nations Institutionalization, Professionalization and Adaptation (Basingstoke: Palgrave Macmillan). M. Mason (2004) ‘Representing Transnational Environmental Interests: New Opportunities for Non-Governmental Organisation Access within the World Trade Organisation?’, Environmental Politics, 13, 3, pp. 566–89. P. McLaverty (2002). ‘Civil Society and Democracy’, Contemporary Politics, 8, 4, pp. 303–18. J. O’Neill (2001) ‘Representing People, Representing Nature, Representing the World’, Environment and Planning C: Government and Policy, 19, 4, pp. 483–500. C. Pattie, P. Seyd and P. Whiteley (2004) Citizenship in Britain: Values, Participation and Democracy (Cambridge: Cambridge University Press). P. Perczynski (2000) ‘Active Citizenship and Associative Democracy’, in M. Saward (ed.) Democratic Innovation: Deliberation, Representation, and Association (London: Routledge), pp. 161–71. H. F. Pitkin (1967) The Concept of Representation (Berkeley: University of California Press). A. Rehfeld (2006) ‘Towards a General Theory of Political Representation’, Journal of Politics, 68, 1, pp. 1–21. T. Risse (2006) ‘Transnational Governance and Legitimacy’, in A. Benz and Y. Papadopolous (eds) Governance and Democracy (London: Routledge), pp. 179–99. J. Scholte, R. O’Brien and M. Williams (1999) ‘The WTO and Civil Society’, Journal of World Trade, 33, 1, pp. 107–23.

Darren Halpin and Peter McLaverty 73 J. A. Scholte (2000) ‘Global Civil Society’, in N. Woods (ed.) The Political Economy of Globalization (New York: St Martins Press), pp. 173–201. J. Scholte (2002) ‘Civil Society and Democracy in Global Governance’, Global Governance, 8, pp. 281–304. J. A. Scholte (2005) Globalization: A Critical Introduction, 2nd edn (Basingstoke: Palgrave Macmillan). K. Sikkink (2002) ‘Restructuring World Politics: The Limits and Asymmetries of Soft Power’, in S. Khagram, J. Riker, J. and K. Sikkink (eds) Reconstructing World Politics: Transnational Social Movements and Norms (Minnesota: University of Minnesota Press), pp. 301–17. United Nations (2004) We the Peoples: Civil Society, the United Nations and Global Governance. Report of the Panel of Eminent Persons on United Nations-Civil Society Relations (New York: United Nations). A. Van Rooy (2004) The Global Legitimacy Game: Civil Society, Globalization and Protest (Basingstoke: Palgrave Macmillan). A. Warleigh (2001) ‘“Europeanizing” Civil Society: NGOs as Agents of Political Socialization’, Journal of Common Market Studies, 39, 4, pp. 619–39. K. D. Wolf (2006) ‘Private Actors and the Legitimacy of Governance beyond the State: Conceptual Outlines and Empirical Explorations’ in A. Benz and Y. Papadopoulos (eds) Governance and Democracy (London: Routledge), pp. 200–27.

4 The Link between StandardSetting NGO’s Legitimacy and Effectiveness: An Exploration of Social Mechanisms Marianne Beisheim and Klaus Dingwerth When we talk about NGOs and their legitimacy, it is common to distinguish between advocacy NGOs on the one hand, and service provision NGOs on the other (see Franz and Martens, 2006). While the former are often evaluated in terms of the authenticity of their claim to represent others (Hahn, 2008; Mallaby, 2004), the standard currency for judging the latter are the relative efficiency and effectiveness with which an organisation provides its services and the contribution of its services to the common good (Frantz and Martens, 2006). However – and this volume provides a number of examples – the discussion about NGOs and their legitimacy more and more tends to include an evaluation of NGOs in much broader terms, such as inclusiveness, transparency, or accountability. In a move that some have interpreted as a ‘backlash against civil society’ (Clark, 2003, pp. 169–85), the legitimacy of NGOs is publicly challenged and NGOs that demand democracy or accountability are increasingly asked ‘How democratic are you?’, ‘To whom are you accountable?’ and ‘Who do you speak for and what is your claim to speak for others based on?’. We do not discuss the merits of this particular discourse in this article, but rather point to a third category of NGOs for which the demand for democratic self-organisation may be most convincing. This particular – and arguably more recent – category of NGOs refers to so-called transnational standard-setting organisations – in other words, to organisations in which non-state actors define issues, make rules, and monitor compliance with these rules. Examples of such organisations include the Forest Stewardship Council (FSC), an organisation that runs a certification scheme for responsible forest management; the Marine Stewardship Council (MSC) that manages a similar scheme for sustainable fisheries; the Clean Clothes Campaign (CCC) and the Rugmark Foundation 74

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that make and implement voluntary labour standards for the garment and carpet industries; or the International Accounting Standards Board (IASB) whose accounting standards are applied in a variety of countries around the world. While this third category of NGOs is frequently overlooked in discussions about the democratic credentials of civil society organisations, transnational standard-setting NGOs fit most definitions of nongovernmental organisations we find in the literature, at least as far as their form is concerned. They are – with few exceptions such as the Internet Corporation for Assigned Names and Numbers (ICANN) – formally independent from governmental control, have a clear organisational structure, are non-profit organisations and work for primarily political or societal goals. As far as their output is concerned, transnational standard-setting organisations however differ from ‘conventional’ NGOs like Amnesty International, Human Rights Watch, Greenpeace or the WWF. Their main output is not awareness raising, lobbying or the implementation of particular projects – these were, for instance, the categories that Paul Wapner (1996) used to discuss the activities of environmental NGOs in his seminal work. Instead, the NGOs we refer to in this chapter produce norms, standards and rules as well as the organisational equipment to implement and secure compliance with these norms, rules and standards. While most ‘classical’ non-governmental organisations act as advocacy or interest groups (Beisheim, 1997), this relatively new type of ‘standard-setting NGO’ takes on governance functions and, thus, resembles a private regime in terms of its function and output. Therefore, the call for legitimacy and accountability may be most relevant for these NGOs. Based on this notion, we use this chapter to explore the link between the legitimacy and effectiveness of this particular type of NGOs. In short, we ask to what extent the normative procedural legitimacy of transnational standard-setting NGOs positively affects their effectiveness. To this end, we first discuss the relation between legitimacy and effectiveness in more abstract terms and then apply our theoretical assumptions to a particular standard-setting NGO, namely the Global Reporting Initiative (GRI). The core concepts used in this chapter are relatively straightforward: normative procedural legitimacy refers to an organisation’s performance in terms of four values associated with democratic decision-making, namely inclusiveness, transparency, accountability, and deliberativeness. Empirical legitimacy refers to the actual social recognition of an organisation or its norms, rules and standards as rightful.1 Effectiveness

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refers to a scheme’s capacity, whether directly or indirectly, to guide the behaviour of its addressees in a direction that is compatible with its own stated goals.2 And finally, a transnational standard-setting NGO is a nonprofit organisation in which non-state actors (occasionally together with governmental or business actors) from more than one country devise rule systems for other non-state actors in more than one country.

The link between legitimacy and effectiveness As compliance with rules made through private governance arrangements is voluntary, an often-heard argument is that this quality makes democratic processes redundant. Yet this argument may be disputed not only on normative grounds but also empirically. In contrast, the reverse argument – that private governance institutions need legitimacy precisely because they are legally non-binding – seems more plausible. Unable to draw on the binding force of hard law, the effectiveness of transnational standard-setting NGOs seems to depend on their social acceptance as rightful. The International Relations (IR) literature generally distinguishes between three mechanisms through which the addressees of norms and rules are being pushed and pulled towards compliance. These mechanisms can broadly be summarised as coercion based on power differentials, incentives based on actors’ self-interests, and legitimacy or authority backed by ideas and normative beliefs (Hasenclever, Mayer and Rittberger, 1997). In the context of transnational governance coercion is largely absent. Any norms and rules beyond the state are intrinsically ‘soft’ regulatory instruments. Even intergovernmental regimes are only to a very limited degree backed by the sanctioning power of a central authority. For transnational governance, this even applies to two levels: not only is there no central enforcement agency beyond the state, but within the states themselves, the provisions adopted through private governance arrangements have no legally binding force either. Plus, while societal self-regulation at the domestic level may still take place in a ‘shadow of hierarchy’, this no longer applies to self-regulation beyond the state ( Jachtenfuchs, 2003, pp. 505–6). Given these limited opportunities to enforce compliance, the focus shifts to the individual motivation to comply with private governance rules. The need to convince addressees of the rightfulness of a rule becomes part of a necessary system of compliance management (Chayes and Chayes, 1995) which, in view of the limited opportunities for compliance enforcement, is not only a sensible addition to, but an essential prerequisite for regulatory success

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(see also Franck, 1990; Klosko, 2000, pp. 208–29). Thus, several authors have argued for a link between procedural legitimacy and effectiveness (Bäckstrand, 2006; Bernstein, 2004; Buchanan and Keohane, 2006). Yet procedural legitimacy and effectiveness are also often seen as mutually substitutable or even as competing. For instance, Bäckstrand notes that ‘high output legitimacy in terms of effective collective problem-solving can, on some accounts, compensate for low input legitimacy’ (Bäckstrand, 2006, p. 472). And ‘all-inclusive’ standard-setting processes might lead to a serious lack of efficiency and reduced problemsolving capacity (Börzel and Risse, 2005, p. 212; see also Göbel, 2007). In sum, while contemporary IR scholarship frequently refers to ‘the importance of legitimacy for international order, institutions, and what today we refer to as governance’ (Bernstein, 2004, p. 2), at the same time, the nature of the relation between different conceptions of legitimacy and the functioning of governance mechanisms is contested. And, even more importantly, an explicit discussion of ‘how and why legitimacy operates among international institutions’ (Hurd, 1999, p. 381) is largely absent in the literature. A most interesting question in that context is, thus, how does greater legitimacy improve (or diminish) the prospect for effectiveness? What are the pathways that connect the two variables? These are largely unresolved questions that can best be answered by a detailed analysis of the causal mechanisms underlying the relationship between legitimacy and effectiveness of private governance institutions. While the objective of such a study would ultimately be to ascertain whether the supposed interplay between legitimacy and effectiveness exists at all and to define the conditions under which it becomes relevant, our chapter is confined to the initial step in this larger endeavour. More precisely, in the following we are interested in identifying more specific hypotheses about how normative procedural legitimacy might influence the effectiveness of private transnational governance schemes. We assume a two-step process that links the two variables. In a first step, normative procedural legitimacy – that is, legitimacy based on procedures associated with democratic theory – is expected to lead to better empirical social acceptance of the governance scheme as rightful. In a second step, this empirical recognition of the governance scheme is expected to increase the likelihood that addressees will de facto adapt their behaviour in accordance with the norms and rules that result from the governance process (see Figure 4.1). Evidently, a number of alternative explanations may account for a change in the behaviour of addressees. First, specific problem structures or actor constellations may facilitate the effectiveness of some standard-setting

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The Link between Legitimacy and Effectiveness Alternative explanations (e.g. pragmatic reasons; tradition; routines)

Procedural legitimacy Figure 4.1

Empirical acceptance

Alternative explanations (e.g. pragmatic reasons; tradition; routines)

PTG norms guide the behaviour of target actors

Effectiveness

From procedural legitimacy to effectiveness

NGOs, while constituting a strong impediment in other cases (Zürn, 1992). Second, the specific content of norms and rules or the design of information and monitoring systems may influence the likelihood that target actors will commit and adhere to the standards devised by a particular standard-setting NGO (Mitchell, 1998). Organisations may moreover refer to norms that have already been negotiated in intergovernmental forums. In this case we could speak of a legitimacy transfer from public to private governance arrangements (Bernstein and Cashore, 2004; Wolf, 2006). Third, the responses of other organisations that target actors identify as similar to themselves and/or on whose support they depend may trigger isomorphic dynamics within specific fields of organisational activity (DiMaggio and Powell, 1983; Dingwerth and Pattberg, 2009). And finally, even where legitimacy acts as an important driver, normative procedural legitimacy is not the exclusive basis for conferring legitimacy. Instead, target actors may also accept an organisation as rightful because it promotes their interests (‘pragmatic legitimacy’) or because it conforms to norms they largely take for granted (‘cognitive legitimacy’) (Suchman, 1995). In sum, procedural legitimacy is therefore only one factor among others when we wish to understand the effectiveness of private transnational governance schemes. Yet given that transnational standardsetting NGOs deploy a significant share of their resources to advocate their procedural legitimacy – thereby signalling that they perceive such legitimacy as a key to their own effectiveness – it seems warranted to single out this factor for the purpose of this analysis.

Procedural legitimacy as a success factor for private standard-setting NGOs: Three social mechanisms Following up on the ideas presented in the previous section, the purpose of this section is to identify various social mechanisms that describe how procedural legitimacy translates into effectiveness. Mechanisms

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Table 4.1 Mechanisms that link legitimacy and success of private governance Key elements of normative procedural legitimacy.

Causal mechanisms

(1) Inclusiveness, fairness and representativeness (2) Deliberation

(M1) Ownership Enhanced through participation compliance (M2) Social learning and persuasion (M3) Social control

(3) Transparency and accountability

Success

can generally be thought of as ‘the processes that account for causal relationships among variables’, and the search for causal mechanisms is usually driven by the desire to develop more fine-grained explanations for social phenomena (Campbell, 2005, p. 42, emphasis in original; Checkel, 2006, p. 363; see Tarrow, 2005, pp. 29–34). In following the approach of specifying social mechanisms, our general idea therefore is to theorise about how normatively qualified procedures may be linked to effectiveness and to then empirically check how well these ‘sometimestrue theories’ (Coleman, cited in Davis and Marquis, 2005, p. 336) fare in accounting for the success or failure of specific private governance schemes. In identifying the social mechanisms that can be expected to link the procedural legitimacy of standard-setting NGOs with their effectiveness, we draw on criteria that together constitute the core of most approaches to democratic governance beyond the state: inclusiveness, transparency, accountability and deliberation. The following paragraphs identify three social mechanisms associated with these criteria (see Table 4.1): the development of (1) ‘ownership’ based on inclusive, fair and representative participation; (2) social learning and persuasion based on deliberative process; and (3) social control based on transparency and accountability. Ownership on the basis of inclusive, fair and representative participation The legitimacy of a decision-making process can be established through the inclusion of a broad range of stakeholders. In normative terms, this requirement is firmly embedded in virtually all variants of democratic theory. However, participation per se does not guarantee democratic process. Instead, equal and fair rights of participation are required as a complementary element. Three factors are significant in this context.

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First, all stakeholder interests should be represented effectively to establish congruence between decision-makers and decision-takers (inclusiveness). Second, participation processes should be fair. In other words, all stakeholders should be able to participate in the process either on an equal basis or on the basis of morally justified graduated participation rights (fairness). Third, participants must be sincere and legitimate representatives of their constituencies (representativeness). The causal mechanism that links these aspects of right process to subsequent compliance we label as ownership through participation. ‘Ownership’ is a word frequently used in the discussion on developmental politics, where it refers to the level of identification of stakeholders with projects that concern them. According to this mechanism, it can be assumed that the general support of stakeholders for a norm or rule and their willingness to compromise increase if they have been involved – either directly or through their delegates – in negotiating these norms and rules. As a result of inclusive and fair procedures, stakeholders become ‘owners’ of the process as the duration and quality of their participation increase. Ownership contains both an emotional and a rational component. The emotional component evolves as participants grow ‘attached’ to a project in which they engage substantially together with others. On the other hand, the direct involvement of addressees increases the likelihood that they will be able to gather relevant information and put forward and defend their own interests in the negotiating process. All else being equal, we can assume that organisations are more likely to accept the costs of implementing norms and rules if their representatives have been actively involved in the negotiations. We would like to add, however, that the participation (and thus ownership) of any individual in a negotiation process as such is insufficient. At this point, the ‘representativeness’ of the participating stakeholder spokespersons comes in. It is essential that agents have a sufficient mandate by their principals – all the more, as in the end the drafted norms and rules need to be accepted not only by the agents but by the principals. Mechanisms of ownership through inclusion are also referred to in the recent literature. Marleen van de Kerkhof claims that ‘the involvement of actors from society […] can improve awareness and support for specific policy measures; it can enhance the legitimacy of the decisions taken’ (van de Kerkhof, 2006, pp. 279–80). More specifically, she summarises that ‘involving stakeholders and reaching a mutual agreement among them is assumed to decrease the chance that they will not comply with the policies that result form the process’ (van de Kerkhof, 2006,

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p. 282). Bäckstrand similarly holds that ‘“ownership” of outcomes and agreements by a wider range of stakeholders who are affected by issues and who may be partly responsible for policy implementation […] is desirable on grounds of the efficacy of democracy’ (Bäckstrand, 2006, p. 472). On the other hand, inclusive decision-making also has its downsides inasmuch as it often leads to costly and tedious procedures.3 Social learning and persuasion based on deliberation A second social mechanism can be identified with reference to the deliberative quality of opinion and will formation. This mechanism, which is based in part on the normative and empirical assumptions made in theories of deliberative democracy,4 can be described as social learning and persuasion through arguing. The mechanism is based on the assumption that deliberative elements in the negotiating process help persuade addressees. The quality of deliberative processes can be ensured by placing a premium on rational argument and dismissing weak or unfounded reasoning. Where participants in deliberative processes have adequate opportunities to present their arguments and critically appraise their opponents’ counter-arguments, they are able to recognise the outcomes of this process as ‘reasonable’. Ideally, a consensus is achieved at the end of the deliberative process; stakeholders will thus implement the resulting decisions because they are convinced of their normative and empirical appropriateness. Even where consensus may not be in reach, deliberation may induce learning and behavioural change in accordance with the specific goals of a private governance scheme. In contrast to consensus-oriented multi-stakeholder dialogues, more open-ended deliberative processes may not only help to elicit the value orientations and preferences of different stakeholders, but also lead actors to redefine a given situation in the light of new evidence, new arguments or simply through being able to see the same issue through the eyes of other stakeholders with different value orientations and preferences (van de Kerkhof, 2006, pp. 282–4). Such interpretive shifts may in turn lead to changes in actual behaviour. Yet, it would be naïve to assume that deliberation will automatically lead to effectiveness. Instead, it may also lead to deadlock. In particular, deliberation is unlikely to work ‘in problem situations where the stakeholders have different axioms, assumptions and concepts with regard to the problem under consideration’ (van de Kerkhof, 2006, p. 282). In that case, deliberation may make deep divides visible that, thereby

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instigating or solidifying dissent, opposition and conflict among the parties to a dialogue. Moreover, the consensus orientation of deliberative processes may inhibit good results, for instance, when the ultimate goal shifts ‘from reaching a quality decision […] towards reaching an agreeable one’ (ibid., p. 282) or when the prevailing consensus orientation leads to a selection of only those stakeholders that are willing to reach a consensus, while it excludes others who are more sceptical or have more radical views on the issue at stake. Social control based on transparency and accountability As a third mechanism, the ability to control rule-makers is likely to increase the willingness of target actors to adhere to the outcomes of a rule-making process. This third mechanism does not even necessarily require that rule-takers are actually participating in the rule-making process. Instead, it assumes that audiences may also accept a rule that results from a transparent and accountable process. Transparency and accountability are part of almost any normative account of democratic procedures. Accountability refers to a principalagent relationship ‘in which an individual, group or other entity makes demands on an agent to report on his or her activities, and has the ability to impose costs on the agent’ (Keohane, 2003, p. 139). Keohane distinguishes between internal and external accountability, the first referring to authorisation and support by principals to agents within an institution, the latter to individuals or groups outside the acting entity who are nevertheless affected by its activities. Building on this distinction, Thomas Risse argues that, ‘if the agents involved in governance arrangements are both internally accountable to their “clients” […] and externally accountable to those who are affected by their decisions […] input legitimacy should be insured’ (Risse, 2006, pp. 185–6). For such social control to function properly as a mechanism, the transparency of the decision-making process is an essential prerequisite. Giving stakeholders the opportunity to signal their support or dissatisfaction with specific decision-making options and to intervene when deemed necessary has various effects: in general, it allows individual actors – whether themselves members of the scheme or merely members of an interested public audience – to ‘blame and shame’ those who defect from a scheme once the latter is operational. Such blaming and shaming is most feasible if the norm or rule in question is widely considered as rightful. Transparency and accountability may also serve as proxies for a scheme’s legitimacy since it signals that rule-makers have ‘nothing to hide’ from their addressees or the wider public. This specific

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mechanism works best if the NGO targets well-organised sections of society; in these cases, rule takers may assume that ‘their’ organisations would have challenged the rule-making processes if it had interfered with their group’s specific interests. Yet, transparency and accountability also have a price. In particular, they may conflict with other criteria such as deliberativeness. Thus, representatives are often unable to engage in a sincere exchange of arguments unless meetings occur behind closed doors; moreover, the more control constituencies exert on their representatives, the less they may be persuaded by the arguments of others. And finally, transparency may also increase the danger of de-legitimisation of transnational standardsetting organisations, for instance when information that is made available to the public can be used by critics to challenge the organisation.

Plausibility probe: The global reporting initiative The purpose of this section is to exemplify the three mechanisms identified in the previous section and test their plausibility.5 Does evidence in the actual practice of transnational standard-setting NGOs support the theoretically imagined social dynamics? In doing so, we focus our attention on the Global Reporting Initiative (GRI). The GRI was created in 1997 as a partnership of corporations and environmental groups associated in the Coalition for Environmentally Responsible Economies (CERES). Since its inception, the ambition of the GRI has been to make ‘reporting on economic, social and environmental performance as routine and comparable as financial reporting’ (GRI, 2003a, p. 4). As its main instrument to achieve this aim, the GRI develops and advertises its Sustainability Reporting Guidelines. The Guidelines contain reporting principles and performance indicators intended to provide guidance to reporting organisations on how and what to report. The aim of the Guidelines is to enable report users – rating agencies, investors, shareholders, employees, consumers and local communities – to evaluate a company’s sustainability performance and to compare it to that of its competitors. By making reporting routine and comparable, the GRI also follows the more general aim to improve corporate sustainability performance through identifying best practice and putting pressure on those whose performance deviates from best practice. In terms of its effectiveness, the GRI has managed to position itself as the leading sustainability reporting scheme. A first version of the Guidelines was developed in 2000; revised versions were published

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in 2002 and 2006. The Guidelines themselves are widely considered as a viable compromise between comprehensiveness and feasibility of corporative non-financial reporting. In December 2002, 200 organisations had registered their reports with the GRI; by January 2007 that number had reached close to 1000 and by January 2009, the GRI noted that ‘more than 1,500 companies, including many of the worlds leading brands, have declared their voluntary adoption of the Guidelines worldwide’.6 In terms of its normative pull, the GRI has generated an expectation that ‘good companies’ report on their performance in relation to sustainability and that they base their reports on the GRI framework. Current estimates suggest that roughly 40 per cent of all CSR reporters are using the GRI Guidelines in preparing their reports. In addition, the GRI maintained, already in 2003, that 47 of the top 50 company reports identified by SustainAbility, Standard & Poor’s and UNEP have referenced the GRI Guidelines (GRI, 2003a, p. 8; 2004a). As it has become the leading non-financial reporting standard, the GRI’s implicit (re-)definition of corporate sustainability constitutes a common frame of reference for thinking about sustainable business practice. In sum, the GRI can thus be considered as a relatively effective transnational standard-setting organisation.7 In terms of its normative procedural legitimacy, the GRI also scores relatively high. As we illustrate below, its decision-making process includes a wide range of stakeholders and significant deliberative elements, and is fairly transparent. Given that the GRI is relatively democratic and relatively effective, it lends itself to an examination of our three mechanisms. The following discussion thus investigates to what extent the GRI is effective because it adheres to normatively qualified procedures. More specifically, it investigates whether and how the inclusiveness, deliberation and transparency of decision-making translate into compliance with the reporting framework of the GRI. For each mechanism identified in the previous section, we first give a brief description of the core characteristic – that is, the actual inclusiveness, deliberativeness and transparency of the GRI and its decision-making process – and then discuss to what extent the GRI’s performance on this specific characteristic contributes to the organisation’s effectiveness. Ownership through inclusion The Global Reporting Initiative stresses that it ‘derives its legitimacy from balanced, global, multi-stakeholder participation at all levels’ (GRI, 2003b). According to its self-image, the GRI is ‘one of the few organisations to task stakeholders with the creation of its main product’

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(Dickinson, 2006, p. 1). To live up to this credo, the GRI includes a wide range of stakeholders in the making of its Sustainability Reporting Guidelines and of the associated Technical Protocols and Sector Supplements. In the initial phase of the GRI, the Steering Committee was the central decision-making body of the GRI. Membership in the Steering Committee was by invitation. Decisions about membership were prepared by CERES and the United Nations Environment Programme (UNEP) as a collaborating partner of the GRI and, once it had been set up, approved by the Steering Committee. To gain the support of its stakeholders, the GRI’s ‘global perspective’ required the organisation to secure balanced representation of geographical regions as well as of different stakeholder groups. In the words of a former member of the GRI Steering Committee, such balance was essential to GRI’s credibility: ‘It had to have private sector input; it had to have labour input; it had to have NGO input. Otherwise those stakeholder groups wouldn’t necessarily accept the GRI’.8 Between 2000 and 2002, participation in the development of the Guidelines was therefore extended and organised more systematically. The Steering Committee remained the central body, but redefined its role as primarily a supervisor of the Guidelines revision process. The largest part of the revisions for the 2002 Guidelines was prepared in the Measurement Working Group (MWG), a body of over 130 experts and stakeholders set up in 2001. After several rounds of revisions of the initial documents, a draft version of the 2002 Guidelines was published on the GRI website in March 2002 (GRI, 2002b). At the end of the 60-day public comment period, comments received from over eighty parties amounted to over 300 pages, which the Revisions Working Group analysed before finalising the new Guidelines (GRI, 2002d). The 2002 Guidelines were eventually approved by the new Board of Directors and publicly released at the World Summit on Sustainable Development in Johannesburg in August 2002 (GRI, 2002c). The Structured Feedback Processes (SFPs) and the Stakeholder Council provide further entry points for participation in the development of the Guidelines. SFPs are an institutionalised means to seek comments on GRI documents. Coordinated by the GRI Secretariat, their primary element is ‘a questionnaire that guides participants through a variety of issues and asks for comments and considerations about further improvements to a GRI document’ (GRI, 2004b). SFPs have informed the revision of the 2000, 2002 and 2006 versions of the Guidelines. Their scope has been expanded over the time, and the revision process

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for the 2006 Guidelines also included regional roundtables in different world regions. Finally, the Stakeholder Council formally represents the interests of various constituencies within the GRI. It meets annually to discuss the progress of the GRI and debate ‘key strategic issues’. Moreover, it appoints new Board members, makes strategic recommendations to the Board, gives advice on the GRI’s activities, and participates, through individual members, in GRI working groups (GRI, 2002g, articles 14–17). The 60 seats on the Stakeholder Council are allocated according to stakeholder groups and geographical representation; currently these are business (22 seats), civil society organisations (16), mediating institutions (16), and labour (6) (GRI, undated-a). Stakeholder Council members are elected by the so-called Organisational Stakeholders of the GRI, a category that is open to all parties that support the general ideas behind the GRI and are willing (and able) to pay a modest annual membership fee. The currently over 380 Organisational Stakeholders9 are grouped according to the four GRI constituencies with each constituency electing its own representatives on the Stakeholder Council (GRI, 2002g, articles 12–17). To what extent does this record of inclusiveness generate a sense of ‘ownership’ among participants? At a very general level, the GRI itself communicates that it ‘depends on its wide and diverse engagement with stakeholders to create a growing level of interest in the content of reports, precisely because these stakeholders have been involved in drafting the guidelines and have ownership of the same’ (GRI, 2002a). In a similar vein, a recent article by a GRI associate asks whether the stakeholder-driven decision-making process in the GRI is ‘worth the effort’. Answering in the affirmative, the article suggests a similar dynamic as the abovementioned quotation (Dickinson, 2006, p. 1): It is challenging for GRI to convene these seemingly divergent stakeholder groups and facilitate consensus […]. The GRI’s commitment to realising these challenges means that the Guidelines are a robust product that celebrates significant ownership and applicability for diverse users […]. As a result, many perceive GRI’s reporting infrastructure as the global de facto standard in sustainability reporting practice. When the author cites a staff member of the GRI Secretariat who participated in one of the GRI’s working groups the emotional component of ownership becomes visible (ibid.):

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By the end of the process, the group was passionate. They may have started with different languages, but by the end they shared a common understanding. They gave their own experiences to get others; they gained each other’s respect; and they have more in common than initially thought. The group believes in what they have created. Thus, at least for the organisation itself, this first mechanism seems central – unless, of course, we classify the abovementioned quotations as mere rhetoric. But the words of one external observer seem to endorse those quoted above: ‘The guidelines, thanks to GRI’s massive commitment to inclusiveness, have fast become the leading way for companies to respond to the growing global demand for corporate accountability’.10 A more solid test for the relevance of ownership as a social mechanism lies in the comparison of the reporting practice of organisations represented at different levels of decision-making in the GRI. We would expect Organisational Stakeholders – the quasi-members of the GRI that elect the Stakeholder Council – to adhere more closely to the GRI reporting scheme than non-members. Next, we would expect organisations represented in the Measurement Working Group (MWG) – the group that developed the performance indicators included in the 2002 Guidelines – to be better reporters than mere Organisational Stakeholders. Finally, we would expect organisations represented in the so-called Core MWG – the leaders of subgroups of the MWG – to do better than organisations that are ‘merely’ represented in the MWG itself. The numbers indicated in Table 4.2 support our assumption. Table 4.2

GRI reports and adherence level by participation levela All TNCs

Share of business organisations with GRI reports

1.7% (approx. 1.000 reporters out of 60.000 TNCs)

Organisational Measurement Core MWG stakeholders working group 40%

81%

71%

Adherence level of reports No. of reports

1966

246

61

14

In accordance

15%

32%

38%

43%

Note: a = Numbers are based on the GRI Register (http://www.corporateregister.com/gri/; 17 January 2007) and own calculations based on the information provided by the GRI Register.

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While less than 2 per cent of all transnational corporations have registered sustainability reports with the GRI, the numbers for business members of the Organisational Stakeholders group (40 per cent), of the MWG (81 per cent), and of the Core MWG (71 per cent) are significantly higher. Moreover, the level of adherence to the GRI reporting scheme also rises as participation becomes more meaningful. While only 15 per cent of all sustainability reports registered with the GRI claim the highest of three adherence levels (‘in accordance’), this number rises substantially with participation in the OS group (32 per cent), the MWG (38 per cent) and the Core MWG (43 per cent). Given that organisations in all three groups – Organisational Stakeholders, MWG members and members of the Core MWG – do not seem to differ systematically in terms of their general attitudes towards sustainability reporting, it would thus be fair to assume that the adherence level rises as a result of deeper participation in the GRI. By and large, these illustrations provide some plausibility for the hypothesis that giving representatives of organisations targeted by a standard-setting NGO an appropriate opportunity to provide input to a fair negotiating process increases the likelihood that they will develop ownership of its outcomes and subsequently view these outcomes as binding on the conduct of the organisations they represent.

Social learning and persuasion based on deliberative procedures The GRI rhetoric also gives emphasis to the relevance of deliberation. In his closing remarks at the inauguration ceremony of the permanent GRI in 2002, GRI initiator Robert Massie thus stressed the ‘willingness to listen, to trust, to act in good faith’ that had characterised the GRI from its start (GRI, 2002f, p. 65). In practice, the primary sites of deliberation within the GRI are the Steering Committee (now the Board of Directors) and the various working groups: As a small body operating on the basis of consensus decision-making, the Steering Committee – as the early executive organ of the GRI – fulfils two basic preconditions for deliberations of a high quality. As one member recalls, consensus decision-making implied that, in the actual practice of decision-making, ‘you really have to find out why someone cannot accept something and find a solution that everybody accepts’.11 Moreover, trust among the members of a decision-making body and a commitment to the collective endeavour are further essentials for a deliberative mode of communication. As both of these preconditions cannot

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be expected to be present from the outset, the atmosphere at initial meetings of the committee has been described as ‘tense’ and ‘moderately sceptical’. Tensions resulted from different views on the issue – for instance between campaign groups and business – but also from a lack of familiarity among some of the parties. For instance, as one participant recalls, labour representatives and professional accountants ‘probably had never been in the same room with each other’.12 However, trust building was facilitated by a relatively high level of continuity of membership in the Steering Committee. As a result, a participant recalls that after the first two or three meetings tensions decreased because committee members got to know each other and because of a ‘growing sense that this big bold vision was indeed possible’.13 Over the course of the first year, commitment to this vision increasingly became a motivation for individual members. In addition, it facilitated the establishment of a collective identity and of a constructive atmosphere within the Steering Committee. Overall, the Steering Committee thus provided very favourable conditions for a deliberative style of communication. This general claim also holds for the Board of Directors that replaced the Steering Committee in 2002. Usually, conflicts are resolved without calling for a vote and the Board operates on the basis of ‘sufficient consensus’.14 The Measurement Working Group (MWG) constitutes a second deliberative forum in the development of the Sustainability Reporting Guidelines. Divided into small subgroups of eight to ten individuals whose regular discussions focused on relatively specific aspects of the Guidelines and who were consensus-driven in their internal decisionmaking, the MWG similarly fulfils two basic conditions for a deliberative mode of interaction. In contrast to the Steering Committee, the MWG’s tight schedule, however, impeded a longer trust-building phase. In addition, the subgroups often communicated electronically or through conference calls and only rarely met in person. As a result, no strong collective identity emerged. Moreover, individual subgroup leaders showed varying levels of commitment to the cause of the MWG. Overall, the quality of deliberations was therefore more limited than in the case of the Steering Committee. Accordingly, the atmosphere in the run-up to the 2002 Guidelines has been described as tense. While civil society actors were focused on details of the decision-making process, business representatives preferred to proceed to substantive issues without further delay.15 While time constraints constituted an obstacle to exploiting the full deliberative potential, this example illustrates that the GRI’s governance bodies fulfil at least basic criteria for meaningful deliberation. But

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what causal effects can be ascribed to these deliberative elements of the GRI process? First, deliberations helped participants to understand the issues at stake in different ways and to partially redefine their own interests. When asked if they or their fellow participants in the GRI process had modified their views on sustainability reporting as a result of their involvement with the GRI, interviewees frequently answered in the affirmative. Participants observed a gradual convergence of views as ‘people were able to see things from the perspective of the other side’. For instance, civil society representatives learned about the complexities of implementing sustainability reporting in practice. In turn, business participants learned what issues mattered to the people outside business and to better understand their own footprint in society.16 Second, the deliberative character of the GRI is also reflected in the regular revision of its Guidelines which allows new evidence to be incorporated in the common reporting framework. That the GRI explicitly conceives of itself as a ‘learning organisation’ gives participants in the GRI process a reason to expect that their contribution is desired and that it constitutes a core element of the organisation’s learning process. In sum, these are at least indications that the second mechanism of social learning and persuasion based on deliberative process does have an empirical counterpart in the GRI. On the basis of these indications, we might therefore hypothesise that transnational standard-setting NGOs that link decision-making to meaningful deliberative elements are more likely to ensure compliance with their decisions than comparable organisations without such elements.

Social control based on transparency and accountability Virtually all transnational standard-setting NGOs put a strong rhetorical emphasis on transparency – frequently paired with practical efforts to render decision-making transparent. In the case of the GRI, the articles of association assign clear responsibilities to each governance body. They commit the Board to develop ‘procedures that enhance and ensure the transparency of decisions and decision-making processes’ and the Secretariat to ‘[post] on the Internet minutes of meetings of the Board, Stakeholder Council and Technical Advisory Council’ (GRI, 2002g, article 24.8). In practice, the GRI makes drafts of all relevant documents available to the public in a timely manner and informs stakeholders about how their feedback is dealt with. For the development of the 2000

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Guidelines, a memorandum that outlined the process for the Guidelines revisions was posted on the Internet to inform stakeholders about their opportunities to get engaged. For the development of the 2002 Guidelines, a similar process was in place. As an additional element, all public comments on the draft Guidelines were posted unless feedback companies explicitly asked not to do so (GRI, 2001; 2002e). A number of formal and informal control mechanisms ensure accountability at various levels of the GRI process. First, the relatively complex institutional arrangement provides for checks and balances between governing bodies. Second, the Stakeholder Council serves as a sounding board for the Board and Secretariat. Council members are expected to maintain dialogue with stakeholders in the regions they are representing and to ‘present input to the Stakeholder Council from the constituencies they represent regarding the needs, expectations, and other priority issues related to the GRI and the Guidelines’ (GRI, undated-b). Third, the GRI’s approach to publicly setting its own targets allows stakeholders to evaluate the organisation in terms of its performance vis-à-vis these targets. For example, stakeholders may access all registered reports via a publicly accessible database maintained by the GRI, thereby facilitating the external control of compliance with the GRI Guidelines. Finally, the GRI is keenly aware that ‘any key stakeholders who undertook active advocacy to undermine GRI would create a serious problem’ (Waddell, 2002, p. 7). Critical stakeholder groups such as business, labour or influential civil society organisations thus retain a considerable degree of control over the GRI. How – if at all – does this accountability record translate into effectiveness? Here, hard facts are difficult to obtain without actually asking stakeholders and (potential) reporters what importance they attach to the transparency and accountability of decision-making in GRI. Lacking this information, we can only observe that for the GRI itself, transparency clearly has a strategic dimension. By giving stakeholders the opportunity to comment on draft documents, the GRI integrates potential critics and prevents them from openly challenging the organisation. By being relatively open about how feedback is used, it demonstrates its sincerity and shields itself from higher expectations. By providing a system of checks and balances within the organisation, it publicly demonstrates that no stakeholder group may dominate the process. And by publicly stating its own goals, it gives its audiences a yardstick by which to measure the organisation’s performance. All these can be seen as more or less direct incentives to accepting the GRI and its outcomes as a reasonable consensus and/or as

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disincentives for critics to fundamentally challenge the organisation. While inclusiveness and deliberation serve as a trigger for adherence, transparency and accountability therefore seem relevant primarily as safeguards for achievements realised as a result of inclusive and deliberative decision-making. In other words, we would hypothesise that while inclusiveness and deliberation are important to gaining legitimacy with different audiences, transparency and accountability appear more relevant to maintaining legitimacy. In line with this finding, the GRI is increasingly concerned with transparency and accountability as it is both growing and maturing (Dickinson, 2006, p. 2).

Conclusion Transnational standard-setting NGOs deploy a significant share of their resources to advocate their procedural legitimacy. This suggests that their initiators presume a positive causal link between an organisation’s perception as legitimate and its effectiveness. Based on this observation, this chapter has explored the general hypothesis that the normative procedural legitimacy of transnational governance organisations – defined in terms of inclusiveness, deliberativeness, transparency, and accountability – enhances their prospects for effective governance. Our particular focus was on how right process may translate into compliance and, subsequently, effectiveness. To this end, we have identified three social mechanisms that are supposed to link the two variables: the development of ownership on the basis of inclusive, fair and representative participation; social learning and persuasion based on deliberative procedures; and social control based on transparency and accountability. Having subjected the three mechanisms to a plausibility probe in an illustrative case study of the Global Reporting Initiative, two main conclusions can be drawn. First, at least for the GRI, all three mechanisms appear relevant. The GRI uses different methods of engaging its stakeholders in the decision-making process. Participants in the GRI’s working groups seem to share the organisation’s credo ‘that many of the GRI’s success stories owe to the GRI’s strong investment in the stakeholder engagement process’ (Dickinson, 2006, p. 2). Hence, we may say that the GRI cares for its legitimacy not primarily for moral but for instrumental reasons, most notably to enhance the compliance with its standard. And, as a matter of fact, the data presented in this chapter indicates that those organisations that have been involved more closely in the decision-making process are also reporting more often and adhering more closely to the reporting framework devised by the GRI.

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Second, the characteristics and related mechanisms are relevant at different stages of the GRI process. While inclusiveness and deliberation are primarily relevant to gaining legitimacy, transparency and accountability seem more central to maintaining legitimacy with different audiences. This finding is consistent with Mark Suchman’s argument that empirically, gaining, maintaining and repairing legitimacy are distinct aspects of managing an organisation’s legitimacy (Suchman, 1995). These findings also resonate with evidence from other cases such as environmental certification schemes. For instance, Penny Fowler and Simon Heap (2000) hold that the Forest Stewardship Council (FSC) is more successful than the Marine Stewardship Council (MSC) partly because it is more inclusive. In fact, the MSC only established a stakeholder council when its certification scheme failed to deliver the expected results. In a similar vein, Lars H. Gulbrandsen argues that the ‘lack of ownership felt by many forest owners to the FSC’ is a partial explanation for the proliferation of competing programs dominated by industry (Gulbrandsen, 2004, pp. 94 et seq., emphasis added). Second, transparency and accountability proved crucial when the Forest Stewardship Council’s integrity was challenged by allegations that its certification scheme was not operating in accordance with its own regulations. The FSC could fend off this challenge because member organisations rushed to support the FSC. They asserted that most of the deficits mentioned in the critics’ report had already been addressed by the FSC when the study was published and that control mechanisms were working properly (Pattberg, 2004, pp. 155 et seq.). Finally, deliberative procedures are a crucial factor in accounting for the (partial) effectiveness of the World Commission on Dams in which high quality deliberations and a strong collective identity provided the basis for most commission members to defend the final outcomes vis-à-vis their constituencies as a set of reasonable norms and rules (Dingwerth, 2007, pp. 52–98). In sum, these concluding remarks point us to a number of questions that would seem to follow as the next logical steps in an effort to further explore the link between the procedural quality and political effectiveness of private transnational governance schemes. Four points seem particularly relevant in any effort to pin down more precisely the conditions under which normatively justified procedures contribute to the effectiveness of transnational standard-setting (and possibly also other) NGOs. First, a simple translation of procedural legitimacy into effectiveness clearly underestimates the complexity of private standard setting, in particular when initiatives include stakeholders from different sectors

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of society. Most importantly, it is simplistic in that it does not take into account that different actors may have different reasons for granting legitimacy (Huckel, 2005). While the business community may see inclusiveness and deliberation as instruments for enhancing the epistemic value of decisions, civil society organisations may value them for intrinsic reasons; moreover, they may put more emphasis on additional values such as equality or fairness. Transparency appears relevant to everyone, as no one wishes to lose control over the decision-making process, especially where confidence is low. That inclusiveness, deliberation and transparency appeal to both business and civil society communities – although for different reasons – might thus explain why these concepts are so prominent in standard-setting NGOs that include members of both sectors. Yet, the precise roles of different values for different stakeholder groups will need to be explored in greater depth. Second, our findings suggest that the importance of procedural legitimacy may differ across the various stages of a governance process. It may not be very important at the very beginning of the process (i.e., when some individuals or groups join forces to initiate a standardsetting process), but is likely to become more and more important once the rules are being drafted and later implemented. Specifically at the stage of compliance management, due procedures are likely to gain further relevance. Standard-setters that can build upon accepted structures that have already been implemented during initial negotiations may have an advantage during this later phase. Overall, it therefore seems worthwhile to further investigate how relevant different aspects of procedural legitimacy are at different stages of the policy process. Third, trade-offs between different aspects of procedural legitimacy – and therefore between the mechanisms identified in this chapter – are likely to further increase the complexity of the issue. For example, transparency and deliberation are often seen as mutually exclusive. Moreover, difficulties arise in balancing demands for greater inclusiveness with demands for efficient decision-making procedures. How adequate levels of inclusiveness, transparency, or deliberation are determined, what kind of trade-offs appear in practice, and how and with which consequences they are dealt with are therefore intriguing questions for further research. Fourth, recent comparative case studies indicate that legitimacy and democratic standards of accountability are indeed most relevant for standard-setting organisations. Nevertheless, it would be useful to broaden our discussion of this particular type of NGOs and explore what (similar or different) legitimacy standards are applied to advocacy and

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service provision organisations. It makes sense to interpret the ‘backlash against civil society’ as a product of NGOs’ deepened engagement in the making of global rules and global governance. Accordingly, we should observe variation in the legitimacy standards applied to NGOs that fulfil different public functions. Debating these standards could provide answers to the questioning of the legitimacy and accountability of those who were once seen as the ‘conscience of the world’ (Willetts, 1996).

Notes

1.

2.

3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

For comments on earlier drafts, we thank the anonymous reviewers and our colleagues, especially Tanja Börzel, Magnus Boström, Wolfgang von den Daele, Jörg Friedrichs, Kristina Hahn, Markus Jachtenfuchs, Alexander Kocks, Sebastian Krapohl, Markus Lederer, Rune Premfors, and Klaus Dieter Wolf. An earlier version of this paper has also appeared in the SFB 700 Governance Working Paper Series, Freie Universität Berlin. This conception of NGO legitimacy in global governance is based on similar distinctions and definitions in Beisheim (1997), Bernstein (2004) and Buchanan and Keohane (2006). On the notion of effectiveness, see Young’s distinction between output, outcome and impact (Young, 1999). Our own discussion mainly refers to the outcome dimension of effectiveness and uses compliance with the rules devised by an NGO as the principal indicator. For a discussion, see van de Kerkhof (2006, p. 282). Theories of deliberative democracy are based on the view that ‘legitimacy in complex societies must be thought to result from the free and unconstrained public deliberation of all about matters of common concern’ (Benhabib, 1996). For an overview, see Chambers (2003). Parts of this section draw on Dingwerth (2007, pp. 99–143); on the notion of a plausibility probe, see Eckstein (1975). See http://www.globalreporting.org/AboutGRI/WhatWeDo/, date accessed 15 January 2009. For a critical evaluation of the potential for further growth of the GRI, see however Palenberg et al. (2006). Personal interview with a former member of the GRI Steering Committee, 8 April 2005. See http://www.globalreporting.org/NewsEventsPress/LatestNews/2007/ NewsJan07NewOS.htm, date accessed 1 February 2007. Bill Birchard in Tomorrow, November/December 2000, cited in Corporate Europe Observer (2002, emphasis added). Interview with a former member of the GRI Steering Committee, 8 April 2005. Interview with a former member of the GRI Steering Committee, 11 April 2005. Interview with a former member of the GRI Steering Committee, 11 April 2005. Interview with a member of the GRI Board of Directors, 8 March 2005.

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15. Interview with a former member of the Measurement Working Group, 10 March 2005. 16. Interviews with a member of the GRI Board of Directors, 8 March 2005 and with a former member of the GRI Steering Committee, 11 April 2005.

References K. Bäckstrand (2006) ‘Democratizing Global Environmental Governance? Stakeholder Democracy after the World Summit on Sustainable Development’, European Journal of International Relations, 12, 4, pp. 467–98. M. Beisheim (1997) ‘Nichtregierungsorganisationen und ihre Legitimität’, Aus Politik und Zeitgeschichte, B 43/1997, pp. 21–9. S. Benhabib (1996) ‘Toward a Deliberative Model of Democratic Legitimacy’, in S. Benhabib (ed.) Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press), pp. 67–94. S. Bernstein (2004) The Elusive Basis of Legitimacy in Global Governance: Three Conceptions, Working Paper No. GHC 04/2 of the Institute for Globalization and the Human Condition (Hamilton, ON: McMaster University). S. Bernstein and B. Cashore (2004) ‘Non-State Global Governance: Is Forest Certification a Legitimate Alternative to a Global Forest Convention?’, in J. Kirton and M. Trebilcock (eds) Hard Choices, Soft Law: Combining Trade, Environment and Social Cohesion in Global Governance (Aldershot: Ashgate), pp. 33–63. T. A. Börzel and T. Risse (2005) ‘Public-Private Partnerships: Effective and Legitimate Tools of International Governance?’ in E. Grande and L. W. Pauly (eds) Complex Sovereignty: Reconstituting Political Authority in the Twenty-First Century (Toronto: University of Toronto Press), pp. 195–216. A. Buchanan and R. Keohane (2006) ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs, 20, 4, pp. 405–37. J. L. Campbell (2005) ‘Where Do We Stand? Common Mechanisms in Organizations and Social Movements Research’, in G. F. Davis, D. McAdan, W. R. Scott and M. N. Zald (eds) Social Movements and Organization Theory (Cambridge: Cambridge University Press), pp. 41–68. S. Chambers (2003) ‘Deliberative Democratic Theory’, Annual Review of Political Science, 6, pp. 307–26. A. Chayes and A. Handler Chayes (1995) The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press). J. T. Checkel (2006) ‘Tracing Causal Mechanisms’, International Studies Review, 8, 2, pp. 362–70. J. Clark (2003) Worlds Apart: Civil Society and the Battle for Ethical Globalization (London: Earthscan). Corporate Europe Observer (2002) ‘Rio+10 and the Privatisation of “Sustainable Development”’, Corporate Europe Observer, 11, May 2002. G. F. Davis and C. Marquis (2005) ‘Prospects for Organization Theory in the Early Twenty-First Century: Institutional Fields and Mechanisms’, Organization Science, 16, 4, pp. 332–43. D. Dickinson (2006) ‘Guidelines by Stakeholders for Stakeholder: Is it Worth the Effort?’ SDI Issues – CSR & Accountability No. 18 (Amsterdam: SDI), available

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at http://www.globalreporting.org/NR/rdonlyres/B2E70533-6026-4260-AF2D06C814E860C8/0/DickinsonByStakeholdersForStakeholders.pdf, date accessed 16 January 2009. P. J. DiMaggio and W. W. Powell (1983) ‘The Iron Cage Revisited. Institutional Isomorphism and Collective Rationality in Organizational Fields’, American Sociological Review, 48, 2, pp. 147–60. K. Dingwerth (2007) The New Transnationalism: Transnational Governance and Democratic Legitimacy (Basingstoke: Palgrave Macmillan). K. Dingwerth and P. Pattberg (2009) ‘World Politics and Organizational Fields: The Case of Transnational Sustainability Governance’, European Journal of International Relations, 15, 4, pp. 707–43. H. Eckstein (1975) ‘Case Study and Theory in Political Science’, in F. I. Greenstein and N. W. Polsby (eds) Handbook of Political Science, Vol. 7 (Reading: AddisonWesley), pp. 79–138. P. Fowler and S. Heap (2000) ‘Bridging Troubled Waters: The Marine Stewardship Council’, in J. Bendell (ed.) Terms of Endearment: Business, NGOs and Sustainable Development (Sheffield: Greenleaf), pp. 135–48. T. M. Franck (1990) The Power of Legitimacy among Nations (New York: Oxford University Press). C. Frantz and K. Martens (2006) Nichtregierungsorganisationen (Wiesbaden: VS Verlag). Global Reporting Initiative (GRI) (2001) GRI Update: January 2001 [on file with author]. Global Reporting Initiative (GRI) (2002a) Dialogue on Current and Future Directions: Some Key Issues and Perspectives for and from Our Stakeholders (GRI web archive document) [on file with author]. Global Reporting Initiative (GRI) (2002b) GRI Secretariat Memorandum: Summary of the Revisions Working Group and Related Board (20 March–September 2002) [on file with author]. Global Reporting Initiative (GRI) (2002c) GRI Update: August 2002 [on file with author]. Global Reporting Initiative (GRI) (2002d) GRI Update: June 2002 [on file with author]. Global Reporting Initiative (GRI) (2002e) GRI Update: May 2002 [on file with author]. Global Reporting Initiative (GRI) (2002f) A Historic Collaborative Achievement: Inauguration of the Global Reporting Initiative (4 April 2002) [on file with author]. Global Reporting Initiative (GRI) (2002g) Incorporation of Stitching Global Reporting Initiative (Amsterdam: GRI). Global Reporting Initiative (GRI) (2003a) Business Plan 2003–2005 (Amsterdam: GRI). Global Reporting Initiative (GRI) (2003b) News Update October 2003 [on file with author]. Global Reporting Initiative (GRI) (2004a) News: ‘GRI Rules the Roost’: Benchmarking Report Shows 94% of Best Reporters are Using GRI, available at http://www. globalreporting.org/news/updates/article.asp?ArticleID=366, date accessed 27 December 2004. Global Reporting Initiative (GRI) (2004b) Structured Feedback Process, available at http://www.globalreporting.org/feedback/SFP.asp, date accessed 21 June 2004.

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am Beispiel des Forest Stewardship Council (FSC)’, in T. Brühl, H. Feldt, B. Hamm, H. Hummel and J. Martens (eds) Unternehmen in der Weltpolitik: Politiknetzwerke, Unternehmensregeln und die Zukunft des Multilateralismus, (Frankfurt a. M.: Dietz), pp. 143–62. T. Risse (2006) ‘Transnational Governance and Legitimacy’, in A. Benz and I. Papadopoulos (eds) Governance and Democracy: Comparing National, European and International Experiences (London: Routledge), pp. 179–99. J. Steets (forthcoming) Partnership Accountability. Defining Accountability Standards for Public Policy Partnerships, unpublished manuscript, Berlin/Erfurt. M. C. Suchman (1995) ‘Managing Legitimacy: Strategic and Institutional Approaches’, Academy of Management Review, 20, 3, pp. 571–610. S. Tarrow (2005) The New Transnational Activism (Cambridge: Cambridge University Press). M. van de Kerkhof (2006) ‘Making a Difference: On the Constraints of Consensus Building and the Relevance of Deliberation in Stakeholder Dialogues’, Policy Sciences 39, 3, pp. 279–99. S. Waddell (2002) The Global Reporting Initiative: Building a Corporate Reporting Strategy Globally (Boston, MA: The Global Action Network Net). P. Wapner (1996) Environmental Activism and World Civic Politics (Albany, NY: SUNY Press). P. Willetts (ed.) (1996) The Conscience of the World: The Influence of NonGovernmental Organisations in the UN System (London: C. Hurst & Co). K. D. Wolf (2006) ‘Private Actors and the Legitimacy of Governance beyond the State. Conceptional Outlines and Empirical Explorations’, in A. Benz and I. Papadopoulos (eds) Governance and Democracy: Comparing National, European and International Experiences (London: Routledge), pp. 200–27. O. R. Young (1999) Governance in World Affairs (Ithaca, NY: Cornell University Press). M. Zürn (1992) Interessen und Institutionen in der internationalen Politik: Grundlegung und Anwendung des situationsstrukturellen Ansatzes (Opladen: Leske + Budrich).

5 Assessing the Democratic Legitimacy of Transnational CSOs: Five Criteria Jens Steffek, Ralf Bendrath, Simon Dalferth, Kristina Hahn, Martina Piewitt and Meike Rodekamp

Civil society organisations (CSOs)1 are on the rise in international politics, certainly in numbers and, many would argue, also in political importance. Transnational civil society now interacts with virtually all international organisations. There are, however, various degrees of institutionalisation and formalisation of this interaction (Charnovitz, 1997; Steffek and Nanz, 2008). The United Nations (UN), for example, made formal arrangements for civil society participation from the very beginning of its existence in the 1940s (Alger, 2002; Willetts, 2000). The European Union (EU) also has a tradition of consultation with a variety of civil society actors, ranging from the social partners to advocacy groups and religious congregations (Greenwood, 2007a; Smismans, 2004). In global economic governance, the World Bank has established extensive contact with civil society for more than two decades, both in Washington DC and in the various countries where its projects are implemented (Brown and Fox, 2001; Acuña and Tuozzo, 2000). The world trade regime and the International Monetary Fund (IMF) traditionally have had much less interaction with civil society, but since the 1990s even these organisations are slowly opening up (Scholte, 2002; Woods and Narlikar, 2001; Esty, 1998). Overall, the frequency and extent of consultation between international organisations and organised civil society have increased greatly. There even seems to be an emergent norm of civil society consultation in global and European governance (Dingwerth, 2007; Reimann, 2006; Saurugger, 2008). The new visibility of CSOs and their presumed influence has sparked debate about their accountability and legitimacy (Bendell, 2006; Johns, 2003; Slim, 2002). The issue is of particular interest since many have claimed that the participation of CSOs in international politics may mitigate the ‘democratic deficit’. One key assumption underlying such 100

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claims is that CSOs are somehow able to embody, represent, or reflect citizens’ interests, anxieties, hopes and ideals. The potential democratisation of world politics through CSO involvement therefore seems to hinge largely on the capacity and willingness of these organisations to voice the concerns of citizens and transport them into the political arena. To use a metaphor, CSOs can be thought of as being ‘transmission belts’ (Steffek and Nanz, 2008, p. 8) between the transnational citizenry and international organisations. This transmission belt bypasses the bottleneck of interest aggregation and representation through the hierarchical structures of the state and channels political demands directly into international forums. For the time being, the existence of the CSO transmission belt remains a hypothesis rather than a certified truth. From the normative point of view there are many reasons to wish that CSOs functioned this way. However, there has been very little empirical research on CSOs that systematically addresses the question of whether or not these organisations really connect citizens and international organisations. The overall aim of our current research is to explore empirically to what extent transnational CSOs conform to the transmission belt ideal. The particular aim of this contribution is to clearly define and discuss our normative expectations, and to develop criteria and indicators for empirical research. We suggest a set of five criteria for analysing the capacity of CSOs to create a direct channel of communication between citizens and international organisations: participation, inclusion, responsiveness, transparency, and independence. As we will explain in this paper, these five criteria add up to a particular vision of CSO legitimacy that focuses on vertical relationships within organisations, that is, the relationships between leaders and managers, and members, supporters and beneficiaries. It envisages some duties of CSOs towards the wider public (external accountability) but the focus clearly is on intra-organisational matters. We are particularly interested in the procedures of decision-making and the consultation of members, supporters and beneficiaries in this process.2 This chapter is organised as follows: in the next section we take issue with democratic theory and discuss the role that CSOs might have to play in the project of democratising international politics. We also clarify why notions of (internal) democratic legitimacy and accountability are adequate categories for the evaluation of CSOs. Such an explicit defence is warranted because the concepts of democracy, legitimacy and public accountability have been developed with regard to the state, not societal non-profit organisations. In sections three to

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seven, we present and discuss in detail each of the five criteria that we suggest as normative yardsticks for empirically assessing the conduct of CSOs. Section eight highlights the synergies between the five criteria we propose, and section nine briefly concludes.

CSOs and their need for democratic legitimacy Why would one expect civil society organisations to feature anything like ‘internal democracy’? After all, CSOs are voluntary associations that do not have the power of jurisdiction or coercion. Would it not be exaggerated to expect CSOs to conform to democratic standards of decision-making that were developed with regard to the state? Goodin, for one, has argued that notions of internal democracy should not be applied to non-governmental organisations of the third sector (Goodin, 2003). In his view, accountability relations of the vertical, controlling type, as they typically occur in the public sector, are inappropriate for non-profits. These organisations should be primarily subject to horizontal monitoring and reputational sanctioning through like-minded peers (Goodin, 2003, pp. 13 et seq.). Goodin’s view is that non-profit organisations do charitable work, based on good intentions, and that they provide public goods. These special characteristics make them susceptible to relatively soft sanctioning mechanisms of the reputational type and may also explain why soft mechanisms are sufficient to hold them to account (although Goodin is not terribly explicit on this point). Against such a view we would present two arguments in favour of requiring internal democratic structures in CSOs: the first argument is based on the considerable power that CSOs have. As Hahn shows in her contribution to this volume, the self-assumed privilege of advocacy groups to speak for or on behalf of someone creates relationships of power