The constitutionalized sector

Whether the constitutionalization of international law is a good thing hinges primarily on the content of the norms constitutionalized at the international level. Such an investigation invites us to unearth the underlying ideology of global constitutionalism as well as provide an opportunity to evaluate whether the SC complies with the principles of global constitutionalism.Footnote ⁵⁴ The ideology of global constitutionalism has so far attracted limited attention, and it is simply assumed that ‘any steps forward in overcoming the self-enclosure of domestic legal orders’Footnote ⁵⁵ are deemed as good and desirable. However, before making a normative assessment of global constitutionalism, it is essential to look at the norms constitutionalized at the international level and expose the hidden ideology of the SC.Footnote ⁵⁶ First, we need to acknowledge that law, a medium or tool to transform political wills into legal propositions, cannot but help but be both an inclusive and exclusive device.Footnote ⁵⁷ It may bring about ‘favourable global conditions, including the increased security between powerful states, economic regulations that promote more trade, and generate some general compliance with humanitarian values’. Yet it always bears the potential of being an instrument for domination by simply ‘lock(ing) in asymmetrical legal relationships that favour some states far more than others’.Footnote ⁵⁸ Hence, without primarily mapping the process of constitutionalization and describing the norms being constitutionalized, it is not possible to appraise whether or not the SC of international law is legitimate.Footnote ⁵⁹

Which norms fall under the constitutional category at the international level? First, it is important to stress that I am less concerned with detecting the reasons why one of those regimes or sets of norms acquired the status of constitutional and enjoyed primacy over others. My concern is to reveal how those norms give today’s international law its distinctive colour and identity in order to detect the ideology of the current SC. This requires sociological research similar to that carried out by those we might lump under the heading of new constitutionalism, which is why I will mostly rely on their literature. For this reason, the legitimacy analysis of the neoliberal SC is premised on the acceptability of the arguments advanced by the new constitutionalist scholars.

If jus cogens norms are brushed aside due to their limited impact on the international and domestic levels,Footnote ⁶⁰ one is left with three alternatives: (1) international human rights norms aimed at protecting individuals’ interests beyond nation-states; (2) norms that render possible the international economic, commercial and financial activities (international economic law);Footnote ⁶¹ and (3) international security norms clustered around the UN security regime.Footnote ⁶² The new constitutionalists hold that international economic norms gained priority over other norms such as human rights, climate change and international security. Patel, for instance, asserts that ‘there is larger consensus on how to conduct the global economy – by states, organizations, corporations and individuals alike – than there is on rights protection’Footnote ⁶³ and underlines how international economic law acquire a constitutional status owing to its clarity, stability and predictability. Genschel and Zangl similarly, note: ‘There is hardly an issue area today which is not to some extent regulated by the decisions of international institutions … However, it is in the economic sphere where international decision-making competences have extended furthest.’Footnote ⁶⁴ The editors of this journal subscribe to the view that the logic of trade (the principle of ‘progressive development’)Footnote ⁶⁵ lies hidden behind the trinity of global constitutionalism (human rights, democracy and the rule of law) as a second-order norm that provides interpretive unity and clarity to the international legal order. The relationship between international economic norms and the trinity of global constitutionalism is, they submit, inversed in the hope that economic prosperity will bring about human rights, democracy and the rule of law.Footnote ⁶⁶

Explanations for why the neoliberal SC accorded priority to economy and trade-related norms are abundant. Some, for instance, show how globalization in the economic, financial and communication sectors brings about the global synchronization of relevant norms. This prompts a process of functional disintegration of trade-related norms at the national level, which renders domestic legal and political systems partially dysfunctional and desynchronized.Footnote ⁶⁷ Similarly, some evince why nation-states are compelled to outsource their regulatory competence to international technocratic institutions, administrative bodies, private standard-setting institutions and even digital platforms under the pressure of technological and digital transformations and the ensuing demand for high-speed and technical regulation.Footnote ⁶⁸ The literature also draws attention to how globalization has a mutually supportive relationship with trade-related norms, which requires mostly negative regulation, as opposed to other norms asking for positive regulation, which requires to reach a decision at the international level.Footnote ⁶⁹ In giving an account of the neoliberal SC, it is also possible to underline the level of institutionalization by pointing out that the international economic norms are embedded in stronger institutional settings vested with advanced and somehow politically independent law-applying institutions,Footnote ⁷⁰ as well as decentralized yet coordinated enforcement mechanism.Footnote ⁷¹ I am not so much interested in excavating the reasons that give rise to the neoliberal SC as in demonstrating that international economic law has gained a privileged status over other norms in today’s international law. To do so, I will rely first on the explanations presented by the new constitutionalists and then present two different examples to show how today’s international law is painted with the colour of economic laws.

The ideology of the sectoral constitutionalization: New constitutionalism

The ideology question of global constitutionalism has so far attracted scant attention. As Shinar so rightly puts it, ‘Much of the literature on global constitutionalism can thus be read against the background of hope’,Footnote ⁷² an aspiration that it will render possible the peaceful coexistence and effective functioning of international and domestic legal orders. However, it is unclear whether more international law brings always more normativity. The plurality of norms may, for instance, undermine the effectiveness of international law, provoke regime and court shifting and enable multiple non-compliance channels to be exploited by powerful states.Footnote ⁷³ It may give rise to hegemonic inter-regime relationships in a way that reflects the deep-rooted domestic tensions ‘between a political and economic elite and the politically and economically deprived and silenced’.Footnote ⁷⁴ As might be expected, it runs the risk of delegitimizing international law.Footnote ⁷⁵

International law’s sectoral integration that prioritizes economic and market freedoms and trade-related norms over others – say, environment, biodiversity, public health and cultural rights – is depicted by many scholars as a new form of imperialism or colonialism. Although it is couched in different terms, including ‘new constitutionalism’,Footnote ⁷⁶ ‘constitutionalism 3.0’Footnote ⁷⁷ and ‘authoritarian liberalism’,Footnote ⁷⁸ the crux of their argument is similar: the neoliberal SC’s economic bias exerts illegitimate pressures on DLOs. Somek, for instance, argues that constitutionalism 3.0 is a far cry both from constitutionalism 1.0 concerned with the protection of human rights and constraining public power, and from constitutionalism 2.0, the hallmark of which is the deontological protection of human rights. For Somek, constitutionalism 3.0 is marked by empowering of international and technocratic institutions under the impression of necessity; therefore, it implies doing the right thing in the ‘brave new world of exigencies’.Footnote ⁷⁹ Under these conditions, constitutionalism is said to abandon its emancipatory aspirations, states are governed like companies, and democratic decision-making is to be tamed and aligned with the interests of global capital.Footnote ⁸⁰

The hallmark of the new constitutionalism is therefore the subordination of DLOs to the demands of global capital and the economy. It is most visible in the EU’s economic integration project, the judicialization of the international trade regime after the establishment of the World Trade Organization’s (WTO) Dispute Settlement Bodies (DSBs) and the mushrooming of free trade agreements that increase the protection accorded to trade-related rights (intellectual property and investment rights). The new constitutionalists are not against international economic law, which brings many benefits to nation-states – including fostering trade, promoting the general welfare, and increasing individuals’ average living standards. Rather, they find fault with the hyperglobalization that commenced in the mid-1970s and precipitated after the collapse of the two-polar world.Footnote ⁸¹ They contest the depoliticization of economic and trade-related policies under the guise of necessity and emphasize the essentially political nature of the politics of necessity.Footnote ⁸²

The constitutionalization of international law that began after the World War II has marked a period of distrust in politics and democracy rather than capitalism itself.Footnote ⁸³ The blame is put on the over-politicization of parliamentary democracy during the inter-war period and the solution was found in different mechanisms based on a similar idea: technocratic institutions tasked with preventing democracy from having gone awry are to be established within and beyond nation-states.Footnote ⁸⁴ It is held that international technocratic institutions are necessary to ‘inoculate capitalism against the threat of democracy’ and to defend it against the inclusionary tendencies of national democratic movements.Footnote ⁸⁵ Hence, entrenching economic norms at the international level is a double-purpose project plotted against both nationalism and democracy. Connecting the spread of democracy with the legalization of international trade, Slobodian invites us to take the rise of international technocratic institutions as a response to the spread of mass democracy. In keeping with the ordoliberal’s aspirations, a mode of ‘double government’ is constructed. According to Slobodian, the governance of international economic law is insulated or encased from the government of domestic democratic legal orders.Footnote ⁸⁶ International regulation of fiscal, monetary and economic policies is believed to discipline domestic democracies if it is hermetically isolated from the influence of domestic legal orders. The depoliticization and de-democratization of the economy are thought to be the best alternatives to the inter-war period of excessive majoritarian democracies.Footnote ⁸⁷

It goes without saying that we need international norms regulating international trade in an integrated and interdependent world such as ours. Less clear is what the level of integration should be and how much regulatory autonomy should be left to nation-states.Footnote ⁸⁸ In other words, there is no one version of the SC. The first phase, spanning the period from the 1950s to the late 1970s, is generally dubbed ‘embedded liberalism’ to emphasize its characteristic feature: global economy or liberal trade is ‘embedded within a larger commitment to interventionist domestic policies’.Footnote ⁸⁹ In other words, established with the Bretton Woods conferences, the regime mirrors a compromise between the requirements of international trade and domestic regulatory autonomy, envisions a moderate form of globalization or shallow multilateralism, and gives nation-states sufficient leeway to pursue their own distributive policies.Footnote ⁹⁰ In that sense, the global economy is ‘subservient to domestic policy objectives … not the other way around’,Footnote ⁹¹ which is the reason why many scholars consider the regime legitimate.Footnote ⁹²

The WTO, established in 1995, marks a turn away from Bretton Woods embedded liberalism towards a vertically stricter separation of economy from politics. It heralds a different mode of international economic integration that is deeper than that of Bretton Woods.Footnote ⁹³ Domestic regulatory policies are made ‘subservient to international trade and finance’ and international trade law turns out to be ‘an end in itself’.Footnote ⁹⁴ Hyperglobalization, the term used by Rodrik to differentiate it from embedded liberalism, is marked by two key developments introduced by the WTO regime. First, the scope of international economic law expanded remarkably after the Uruguay Round in the mid-1990s, which brings many policies under the WTO regimes, including services and agricultural and industrial policies.Footnote ⁹⁵ That causes the further shrinkage of the regulatory space left to the nation-states. Second, a dispute-settlement mechanism with compulsory jurisdiction and relative isolation from the political influence of nation-states is established to promote predictability and legal security. These developments have placed it in a hierarchically superior position in the global legal order as the international economic law gained a far more institutionalized and centralized appearance than its competitors.

Two examples: The European Union and the TRIPS-Plus

As may easily be anticipated, this second period is generally deemed illegitimate.Footnote ⁹⁶ It is said, for instance, that the new constitutionalism predominantly protects the interests of transnational companies ‘in the name of the primary rights of corporate persons, free trade and unlimited growth’.Footnote ⁹⁷ Tushnet, for instance, observes an elective affinity between global constitutionalism and neoliberalism because the DLOs are impelled to prioritize ‘economic growth over the expansion of the social welfare state’.Footnote ⁹⁸ Even more radically, Patel maintains that global constitutionalism has been a ‘facilitator of neo-liberalism and neo-colonialism’ rather than ‘being a beacon for rights and freedom’.Footnote ⁹⁹ In other words, the post-1989 period has witnessed a process whereby liberalism is equated with free trade and individual rights are sacrificed on the altar of market freedoms. It does so by bestowing norms related to trade and commerce with constitutional status and protection.Footnote ¹⁰⁰

The new constitutionalism has far-reaching impacts on domestic legal orders: it narrows their regulatory space, shifts the centre of politics away from parliaments to executive and administrative bodies and technical standard-setting institutionsFootnote ¹⁰¹ and supports an unsustainable form of ‘market-preserving federalism’ that vertically separates economic from politics.Footnote ¹⁰² The technocratization and de-democratization of the law are the hallmarks of this period. The downward pressures on domestic labour, health and safety standards, as well as on tax and industrial policies after the globalization of services, IP rights and finance, are a paradigmatic example of how the SC influences domestic legal orders.Footnote ¹⁰³ In addition to this vertical pressure, its influence is also felt in the neighbouring regimes such as the environment, public health and cultural heritage. As a relatively institutionalized regime with an apex court, international economic law also plays a major role in the interpretation of other norms that have a trade-related dimension. Revisiting two brief exemplary cases would suffice to show how the SC impairs domestic legal orders. One relates to the EU’s response to the financial crisis and the other to the governance of intellectual property rights beyond nation-states.

The EU’s dissimilar attitudes towards the financial and rule of law crisis are telling examples of the biased nature of the post-war SC. When the EU is staggeringly reluctant to take measures against those populist countries (Hungary and Poland) that challenge its foundational normative values,Footnote ¹⁰⁴ it showed no hesitation in disciplining Greece when it recognized that Greece failed to meet the EU’s financial requirements.Footnote ¹⁰⁵ The EU abstains from taking necessary measures against those populist countries, even though it is a union founded on the values like democracy and the rule of law,Footnote ¹⁰⁶ and is premised on the idea that all states meet those requirements at least to a sufficient degree, which find its best expression in the principle of mutual recognition.Footnote ¹⁰⁷ The dissimilar attitude of the EU towards the financial and rule of law crisis manifests lucidly how the SC is imbued with the logic of neoliberalism.Footnote ¹⁰⁸ Further, the EU’s austerity measures were made possible only by sidestepping its formal treaty-based institutional structure through Troika and bypassing various democratic control mechanisms, primarily the Greek parliament. All in all, those measures are implemented even at the cost of undermining the basic social and economic services provided to Greek citizens.Footnote ¹⁰⁹ When it comes to the rule of law crisis, however, the Commission – the guardian of the treaties – shies away from initiating a new institutional mechanism that may solve the problem, as it did during the financial crisis.Footnote ¹¹⁰

Another example that springs to mind is the disharmony between the status of international IP rights and their exceptions and limitations. Under the TRIPS regime, international IP rights are elevated to constitutional status while their limitations and exceptions are left to nation-states without much clarity regarding to how to use and implement them.Footnote ¹¹¹ This one-dimensional constitutionalization of IP rights accords them priority over other rights (public health, protection of cultural heritage, disability rights), creates a regulatory chill and pushes nation-states further away from regulating any domain, tangentially or plausibly infringing IP rights. Because it constitutionalizes the minimum level of protection accorded to IP rights, their exceptions and limitations become vulnerable to further erosion through the FTAs in which IP rights are dressed up as investment rights to circumvent the use of exceptions.Footnote ¹¹² International IP rights are depicted as a second enclosure movement or constitutional hedges because multi-level protection is provided by bringing different legal regimes together.Footnote ¹¹³ The exceptions and limitations are vital to domestic legal orders as they allow them to strike a balance between the demands of international economic law, and local needs and interests. When this dynamic is further exposed to light, it becomes clear that international law’s SC provides powerful states with ample opportunities to further their interests by either shifting or combining regimes.Footnote ¹¹⁴

The foregoing examples underscore once again how important it is to separate mapping the constitutionalization of international law from its normative evaluation. They demonstrate why many scholars discredit as an example of global constitutionalism the TRIPS-plus era or the EU’s technocratic measures against the financial and sovereign debt crisis,Footnote ¹¹⁵ as well as why EU scholars lambast the Maastricht design for its insulation of macro-economic policies from the oversight of domestic democracies.Footnote ¹¹⁶ In fact, many scholars from different disciplinary traditions agree on a moderate form of globalization that leaves nation-states enough regulatory space to align their policies with the demands of globalization without undermining the local needs of society.Footnote ¹¹⁷ The common and recurring thread visible in those suggestions is that the transformation of international law after the Cold War has illegitimately suffocated domestic legal orders and that we need new forms of SC that are attentive to the demands of nation-states and supportive of democracy.

Conceptions of legitimacy

Legitimacy is an ambiguous concept appropriate to an analysis from different perspectives, including sociological, constitutional, legal and normative standpoints,Footnote ¹³⁰ yet it is clear that with authority comes the need for legitimation and the problem of legitimacy. When legitimacy is understood from a sociological perspective, it addresses the question of whether an authority is perceived as legitimate by those who live under its rule. The term legitimation is mostly used the process through which an authority gains legitimacy in the eyes of its subjects. The normative account of legitimacy is concerned, however, with the question of what gives an authority the right or power to rule over its subjects.Footnote ¹³¹ In other words, the legitimacy in the normative sense is interested less in how authority is perceived by individuals than in how it gives them objective reasons for action.Footnote ¹³² It pertains to the normative power to change others’ normative situations. So when an institution is deemed legitimate, its rulings are held to be binding because it is believed that authority has a right to rule over individuals.Footnote ¹³³

The literature on the normative account of legitimacy is divided into two main camps that give distinct answers to the question of what makes an authority legitimate: will-based and reason-based accounts.Footnote ¹³⁴ The proponents of the will-based account hold the view that an authority derives its legitimacy from the consent or will of those who are subject to the commands of an authority. In contrast, those who defend the reason-based account deny assigning an ultimate role to consent by raising mostly the argument that consent can be a source of obligation only if it is given for the right reasons. In other words, the consent-based account of legitimate authority is predicated on the assumption that because consent is a manifestation of individual autonomy, there is no tension between individual autonomy and authority when consent is given. However, we all know that not every given consent is compatible with individual autonomy. Raz therefore rightly argues that ‘to the extent that the validity of consent rests on the intrinsic value of autonomy, it cannot extend to acts of consent that authorize another person to deprive people of their autonomy’.Footnote ¹³⁵ In other words, the assumption that consent does always protect individual autonomy is to be refuted on two different grounds. First, because individuals may consent to many things such as being a slave or using drags, the validity of consent is better to be limited by some objective moral reason that, for Raz, finds its expression in his service conception of authority.Footnote ¹³⁶ Second, there is a crucial difference between the consent in the private domain when an individual gives their consent to somebody to do something, and the consent given to the state whose claim to authority is unlimited and unbounded to such an extent that it ‘may at any time take away all one’s autonomy’.Footnote ¹³⁷ This is the main reason why Raz militates for the reason-based account of legitimate authority by noting:

The two conditions of legitimacy stand for what Raz calls the service conception of authority, whereby authority is legitimate as long as it is a better service provider than its alternatives (the normal justification condition), and when it is more important to give the right decision than to decide for oneself (independence/autonomy condition).Footnote ¹³⁹ The first thing that sticks out is that the service conception is the normal, rather than the only, way to justify authority. For this reason, consent plays a secondary role in the service conception in the sense that it is not used as a condition necessary for the legitimacy of authority but rather as an output, which finds its expression as an attitude of respect shown to authorities when they are deemed worthy of it.Footnote ¹⁴⁰ In fact, this is one of the main points of criticism raised against the service conception on the ground that it does undervalue the role played by consent or democratic procedures in the justification of authority.Footnote ¹⁴¹ I will avoid engaging in those discussions about whether a more prominent role is to be given to democracy and consent, first because I adopt an instrumental and reason-based approach to the legitimacy question of authorities and second because my research question concerns whether the neoliberal SC poses undue constraints on domestic authorities and weaken their democratic decision-making capacity, which in turn may undermine its legitimacy. If an affirmative answer may be given to this question from the perspective of the service conception, which accords a secondary role to consent and democracy, then we may easily conclude that it is also defensible from the perspective of hybrid or will-based accounts of legitimacy.

Political trust as an additional and non-instrumental ground of legitimacy for domestic authorities

Recall that Raz presents us with an instrumental and functional account of legitimacy, according to which an authority is legitimate as long as it succeeds in helping individuals to better reach their objective reasons. Yet his conception of authority is general in the sense that it is applicable to any sort of practical authority, many examples of which are quite dissimilar to the authority of states. For once, we have many practical authorities in our life such as doctors, dance teachers and financial experts, all of whom help us to better reach our objectives by providing us with authoritative guidance, provided that we have already made the decision to benefit from their services. But we are mostly subject to the authority of only one state. States are further distinctive because their claim to legitimate authority is comprehensive in the sense that they are committed to governing any aspect of our life. Although it is a species of practical authority, it is different from them mostly because of its non-voluntary and comprehensive nature. We find ourselves living in a political community to which many of us do not give an explicit or implicit consent. Let us call the sort of authority enjoyed by states political authority.

Raz makes it clear that political authorities are distinctive because they are capable of supporting their instrumental legitimacy with non-instrumental reasons.Footnote ¹⁴² They are not only instrumental in shaping individual behaviors and guiding them to right reasons; they also play a partial role in constituting a political community by serving as ‘an object for identification’.Footnote ¹⁴³ In other words, because political authorities are capable of becoming an object for identification and play ‘an important role in people’s sense of who they are’,Footnote ¹⁴⁴ Raz argues that law may also be seen as ‘the authoritative voice of a political community’.Footnote ¹⁴⁵ This is why he warns against overlooking this non-instrumental dimension of political authorities by noting:

First, the term ‘instrumental approach’ denotes here the service conception of authority, developed to explain the legitimacy of political authorities in terms of their capacity to effectively shape and mould the behaviors of individuals.Footnote ¹⁴⁷ Second, Raz may sound in the excerpt as if he is talking about law in general, yet when the context in which he raises those points is taken into consideration, it becomes clear that his concern is political authorities, namely states. As such, even though Raz explains the authority of states primarily in terms of the services with which it provides individuals, he never closes the door to the non-instrumental grounds of legitimacy that states may develop. In a nutshell, states may ground their legitimacy in both instrumental and non-instrumental reasons, even though the latter’s role is secondary to the former.Footnote ¹⁴⁸

The non-instrumental reasons are couched in different terms by Raz, including trust, loyalty, solidarity and self-identification.Footnote ¹⁴⁹ This cluster of terms, while they may seem disconnected from one another, acquires a special meaning in Raz’s own theory. They are the properties that a political authority may possess or generate when they are in good shape and meet certain principles when governing. In other words, they are not essential to all political authorities, even though each political authority is capable of awakening those feelings. If we begin with self-identification, Raz argues that individuals may identify themselves with their political communities when they believe their political community is worthy of respect because it functions well and provides individuals with different opportunities for living their lives.Footnote ¹⁵⁰ Thus, a political authority may be an object for self-identification for those individuals who consider it legitimate when it garners their trust by operating in a ‘morally decent’ way and allows individuals opportunity of being full members of a community.Footnote ¹⁵¹ When that is the case, individuals develop a distinctive attitude of respect for law, namely respect towards their political authorities,Footnote ¹⁵² which we may call loyalty because individuals who trust in their own governments that function well feel themselves under an obligation to obey its laws, even though Raz clearly denies that there is a general obligation to obey the law.Footnote ¹⁵³ However, this obligation is optional because it holds for only those individuals who express their consent tacitly or explicitly to their governments. Moreover, because some individuals take the political authority as an object for identification, they probably regard its laws as their laws. When it comes to how solidarity fits into this picture, we may benefit from Raz’s idea that trust is in fact directed to political community, even though it is embodied in the political institutions.Footnote ¹⁵⁴ In other words, solidarity indicates the level of burdens that individuals are willing to incur for others with whom they are partaking in the same political community.

Needless to say, not all political authorities are worthy of respect. Nonetheless, it is not necessary to deny the potential that they have for generating those feelings. This is why Raz underscores that the intrinsic value of identifying oneself with a political community is a potential value,Footnote ¹⁵⁵ whose realization depends on the content of law, as well as how authority functions. We may here invoke Raz’s argument that consent is better not as a condition for legitimacy of an authority, but rather as an output likely to emerge when authority is already perceived as legitimate. Accordingly, consent given to a political authority is an output that manifests the feelings of trust and confidence placed on political authorities by some of its subjects.Footnote ¹⁵⁶ From here it follows that trust is not a feature essential to political authorities. Put differently, it is not in the nature of political authorities that they are to be trustworthy even though they are entrusted with the task of providing individuals with some services.Footnote ¹⁵⁷ So the initial phase of the authority–subject relationship is not based on the fact that individuals trust public authorities.Footnote ¹⁵⁸ Hence, trust is something to be deserved by a political authority, and thereby contingent on the fact that it is in morally decent form in the sense that it fulfils its instrumental function in a morally acceptable way.

The foregoing explanations draw a subtle, and possibly opaque, explanation for how a political authority may be an object for identification and how it can generate a feeling of trust on the part of its subjects. Yet I believe it suffices to reveal the distinctive role to be played by states in our lives: they are capable of being an object for self-identification. When a legal system is thought of as part of a political system to which individuals may develop a distinctive attitude of respect, we may also see how it may extend its legitimacy grounds to non-instrumental reasons. Trusting a government, which finds its most clear expression in the consent given to it, in fact mirrors the attitude a person adopts towards their own political community.Footnote ¹⁵⁹ This is clear in Raz’s remarks that ‘our perception of ourselves, of who we are, depends among other things on our ability to identify with communities we live in, on our ability to belong to these communities in the full sense of the word’.Footnote ¹⁶⁰ When a person is living in a well-functioning and morally decent political system and community, Raz holds, they may enjoy also benefits of becoming a full member of this community. What Raz means by the term ‘full membership’ goes beyond the notion of legal citizenship, as it stands for the fact that individuals ‘regard themselves as fully belonging to the political community, and similar to regard its law as their law, and its government as their government’.Footnote ¹⁶¹ There is a lot to be explained about what the conditions of respect for law and being a full member of a political community are,Footnote ¹⁶² and what it requires for being a trustworthy authority. Nevertheless, I believe that the foregoing explanations suffice to support my argument that political authorities – namely the authority of states – are capable of extending their legitimacy claims to non-instrumental grounds. For they are objects for self-identification when the relevant conditions are satisfied, and they enable the conditions of full membership.

One question left unaddressed so far is whether there are any other authorities – such as international authorities – capable of generating feeling of trust, understood as the attitude that a person develops towards their own political community. Before giving an answer to this question, it is necessary to underscore that Raz uses the concept of trust in a rather distinctive manner compared with how it is conceptualized in the literature about trust. For Raz, trust manifests a feeling of loyalty on the part of subjects, which is supposed to subsequently generate an obligation to obey the trustworthy political authority. For this reason, he mostly converges notions such as trust, loyalty and self-identification. I will call it a political conception of trust to underline the fact that it requires a political community. The literature on trust takes the concept to consist mainly of two different components. The authority is believed be competent to provide individuals with services and to have goodwill in the sense that it is believed that it will act in the interests of individuals. When seen from this broader perspective, it is reasonable that international authorities, like many other practical authorities, may engender trust, provided they show how competent they are through their past performances and how they observe the interests of individuals. Yet, when trust is understood in its political conception as Raz puts it, which denotes the sort of attitude shown towards authority as an object of identification, it seems harder to defend the foregoing argument. Trust seems to require in this narrower sense a political community in which individuals enjoy full membership and consider the state and its law as their law. This is why I view the legitimacy of international authorities as monolithic, suggesting that they base their legitimacy mainly on the service conception and its instrumental justification.

A further explanation is needed concerning the connection between the principles of the rule of law (RoL) and legitimate authority, and how the former may contribute to generating trust. Since my approach aligns mostly with legal positivism, I regard the RoL as a moral principle intrinsic to law, designed to guide legal institutions that operate within a legal system. When a legal system is conceived of as a political authority, we may easily conclude that when it observes the principles of the RoL, it is more likely that it is perceived by individuals as well functioning and even legitimate. Even though Raz does not clearly deal with how the RoL relates to legitimate authority, some of his disciples – including Tasioulas – assert that the principles of the rule of law are intrinsic to the concept of political authority.Footnote ¹⁶³ Buchanan similarly holds the view that the RoL plays a crucial role for the legitimacy of political authorities, although he warns against making the mistake of thinking that mere legality confers legitimacy.Footnote ¹⁶⁴ The RoL is therefore endemic to political authorities, simply because they are institutional and normative systems as opposed to many practical authorities. For instance, we do not expect a pope (religious authority) or father (parental authority) to observe the principles of the RoL, even though they may feel themselves obliged to some principles associated with their distinctive role. This is why political authorities do lay claim to observing the principles of the RoL in addition to their claim to legitimacy. We may infer the same conclusion from Tasioulas’s following explanations:

Even though I am not sure whether all those examples given by Tasioulas are apt to be considered as part of the service conception of authority, I am certain that political authorities lay claim to govern lawfully by observing the principles of the RoL,Footnote ¹⁶⁶ no matter how they are conceptualized and instantiated. As regards the question of whether there is a distinction in this respect between domestic and international authorities, I find no reason to concede that both lay claim to governing lawfully.Footnote ¹⁶⁷ One may rightly raise the objection that not all international authorities are equally institutionalized, and some differ significantly from domestic authorities in this respect. Yet I am afraid this runs the risk of diverting our attention away from our research towards investigating the essential properties of a legal system and the role that the RoL is supposed to play in a legal system. Hence, I will accept that both domestic and international authorities lay claim to governing lawfully by observing the principles of the RoL, even though the ways in which its principles are instantiated may differ to a certain extent.Footnote ¹⁶⁸ When an authority observes those principles, it may engender feeling of trust on part of its subjects, yet it is hard to say that the RoL is sufficient to generate the sort of trust in which we are interested – that is, political trust. Political trust needs the development of some assessment mechanism such as democratic elections, though which individuals may participate in the activity of governing themselves, as well as changing the incumbent authority when they are dissatisfied with their services, which will be touched upon in the next section.Footnote ¹⁶⁹

States are different because their claim to authority is comprehensive

The previous section laid the foundations for the distinction between domestic and international authorities by explaining what makes a political authority different from a generic concept of practical authority. It demonstrated that domestic authorities are capable of generating trust, understood narrowly in its identification conception, which requires an underlying political community. International authorities are thus accepted as incapable of generating trust, which may serve as an additional and non-instrumental source of legitimacy simply because they are not, at least so far, backed by a political community. Lastly, it has also underscored that both domestic and international authorities are expected to observe the principles of the RoL, which arise from their institutional nature, as well as the very logic of the service conception of authority. Yet it left unaddressed one of the crucial distinctions between domestic and international authorities: their claim to legitimate authority.

Even before Raz conceded that the service conception applies also to international organizations,Footnote ¹⁷⁰ international lawyers had already explored its potential for international authorities.Footnote ¹⁷¹ Nevertheless, several problems surface when an investigation into the legitimacy of international law is set out. What Tasioulas calls the problem of ‘domain fragmentation’ arises when multiple authorities concurrently lay claim to legitimacy – that is, ‘a legal system’s claims of legitimacy are justified in some domains but not in others’.Footnote ¹⁷² It begs the question of how to reconcile an authority’s claim to comprehensive and unlimited authority with the fragmented reality of international authorities. Unlike DLOs, where authority is comprehensive and unlimited, international law exerts its rulings over states and individuals in a sectorally fragmented manner. That poses a problem for authority and forces us to reflect on notions such as limited or relative authority.

In addressing the problem of domain fragmentation, Roughan suggests conceiving those claims as relative rather than absolute and unlimited when individuals are confronted with multiple authority claims originating from different legal orders.Footnote ¹⁷³ Put differently, the claimed legitimate authority ‘is relative to that of … other competing and overlapping international regimes, rules or institutions’.Footnote ¹⁷⁴ At first sight, Raz seems to support this argument in his article ‘Why the State?’, when he concedes that authority holds ‘extensive responsibility within its own domain’. So it seems that authority’s legitimacy is not unlimited, but ‘relative to a domain’.Footnote ¹⁷⁵ For this reason, Raz submits, the scope of authority ‘may be extensive, for example, the population of China, or all corporations throughout the world, or rather small, for example, the population of Lichtenstein or the fencing clubs of Riverdale, NY’.Footnote ¹⁷⁶ To put it bluntly, an authority’s power to rule is not unlimited; rather, it is relative to a specific domain and limited to ‘certain circumstances or for certain purposes’.Footnote ¹⁷⁷ However, the foregoing explanations about ‘comprehensive authority within a domain’ fail to dispel the air of uncertainty surrounding whether comprehensiveness and relative authority are compatible.Footnote ¹⁷⁸ That is so particularly when Roughan’s following remarks are taken into consideration:

I concur with Roughan on many scores, and find her theory of relative authority groundbreaking. Yet I am not quite sure whether her argument that political authorities lay claim to relative authority mirrors the practices of state and what we mean when we are talking about their authority. In other words, it does not necessarily follow that the claims made by authorities are relative from the fact that authorities should be ‘committed to pursuing the appropriate relationships with other authorities’.Footnote ¹⁸⁰ This obligation, for instance, may emanate from the service conception itself. One may easily argue that if ensuring coordination is one of the essential services for which authority is responsible, then authorities should be responsive to each other lest they undermine the services with which they provide individuals. Simply, there seems to be an argumentative gap between the sort of obligations or responsibilities that arise from the circumstance of pluralism and the nature of authority and its claims.

Further, we may admit that today’s legal space is interlegal,Footnote ¹⁸¹ occupied by overlapping legitimacy claims raised by different authorities. We may also count how it interacts with other authorities as an independent factor in the legitimacy assessment of authority.Footnote ¹⁸² Yet we are still confronted with the question of whether there is something distinctive to domestic authorities or we should rather consider them as being on an equal footing with international authorities. In other words, admitting that authority is relative provides us with no guidance when international and domestic authorities rely on different kinds of legitimacy. It does not follow from the decline of domestic sovereignty that states will lose their paradigmatic place, and nor does it entail that there is nothing distinctive to them and their claim to legitimacy. Hence, we must explore what differentiates domestic authorities from their international counterparts and explore whether the legitimacy claims made by international and domestic authorities are of the same kind.

The transformation of the legitimacy structure

It does not necessarily follow from the limited state that domestic authorities should abandon their claim to comprehensive authority. They may still hold their claim to comprehensive authority even when they are living together with other authorities. In other words, there is a distinction between the claim to legitimate authority and its realization.Footnote ¹⁸³ And there is no need for domestic authorities to give up their claim to comprehensive authority even if they make peace with the concept of limited sovereignty. More clearly, it is dubious whether it is justified for domestic authorities to abandon their claim to comprehensive authority, particularly when no other institution has the capacity to serve as ‘a general ends entity’ and none seems ready to assume responsibility for the whole.Footnote ¹⁸⁴ International authorities, operating in functionally delineated domains, are likely to remain content with a claim to relative authority unless they are brought together under the banner of an absolute world government. Thus, it is misleading to think of their claim to authority as comprehensive. One may challenge this assumption, suggesting that using authority within a limited sector is not incongruent with a claim to comprehensive authority. Even though this challenge brings up further questions, I will not delve into further detail and consider comprehensiveness as the ability to regulate the life of individuals in a holistic way by finding a balance between conflicting interests, rights and expectations. Because international authorities carry out their authority in a segment of international law, their claim to authority is better classified as relative than comprehensive authority.

Under normal conditions, an authority should be apt to realize its aspirations and claims, and thereby remain potentially fit for realizing its claim to authority. This implies that a domestic authority should be apt to fulfil its true potential and capable of living up to its claim of comprehensive authority.Footnote ¹⁸⁵ If we applied the similar logic to international authorities, it goes without saying that they should also be apt to realize their claim to relative authority. The SC brings with it a pluralist situation where authorities whose claims to authority are not uniform live together. If the current trend towards globalization continues, it seems that in the future, international authorities will increase their de facto authority at the expense of domestic authorities.Footnote ¹⁸⁶ Taking this projection as a point of departure, I would like to ask what the possible impacts of increasing globalization on this legitimacy structure might be. Addressing this question requires us to embark on what Raz calls speculative analytical jurisprudence – that is, ‘to evaluate some of the dominant trends in analytical jurisprudence in light of likely developments’.Footnote ¹⁸⁷

Even though Raz admits that there is always a gap between what an authority claims and what it possesses, the SC seems to put further pressure on this gap and to significantly reduce the likelihood of domestic authorities to fulfil their claim to comprehensive authority. Domestic authorities appear less likely to exert their power in a comprehensive manner under the pressure of further globalization, for they are required to observe many restrictions imposed by international authorities. It is likely that their aspirations and claim to comprehensive authority will remain unfulfilled. Since domestic authorities are doomed to fail in their ambition for comprehensive authority under the circumstances of globalization, we may label them literally authority manqué. International authorities operating within a functionally delineated domain, however, are not subject to the same challenge. As they do necessarily lay claim to relative authority, they are fit for what they are claiming to achieve. For the authorities whose claim to authority is sincere and straightforward, I will use the term authority genuine.

As the pluralist model brings different authority claims together, it poses many challenges to our traditional authority model. One is the disharmony between the domestic authority’s claim and the extent to which it is realized. The disharmony arises from the simple fact that the primary responsibility for advancing individuals’ living conditions and promoting basic services rests with states, despite the proliferation of international authorities that may erode the authority of the former. They are still ‘the most comprehensive legally based social organisation of the day’,Footnote ¹⁸⁸ even though each passing day renders it impossible for states to ‘regulate the totality of governance in a comprehensive way’.Footnote ¹⁸⁹ Recall that states are capable of extending their legitimacy grounds by awakening feelings such as solidarity, trust and loyalty when they operate in an efficient and morally decent manner. The erosion of domestic authority whose claim to legitimacy is comprehensive may occasion a legitimacy deficit whose elimination by international authorities is highly questionable, at least under the neoliberal SC. That arises from the very fact that international authorities expected to complement the state’s authority do not enjoy the same kind of legitimacy that they are eroding at the domestic level.Footnote ¹⁹⁰ Hence a shift is underway in our traditional legitimacy structure (Raz’s traditional model based on the comprehensiveness of any authority) towards a more pluralist model where neither state nor international authorities enjoy comprehensive authority.

The independence condition and the limits of the neoliberal SC

Let us recall the two conditions that lead to the paradox of global constitutionalism. First, the SC is the only feasible and promising alternative, given that we are caught up in the middle between a domestic and global state/sovereign. In its current form of SC, international law may help states solve collective action problems and provide many services, yet it fails to bridge the legitimacy gap caused by the erosion of the non-instrumental legitimacy grounds that domestic authorities are likely to enjoy. The most important question to be addressed under these circumstances is whether there is something distinctive to states that render their legitimacy special in comparison to their international counterpart. In addressing this question, we may benefit from Raz’s independence condition, which sets the outer boundaries beyond which instrumental justification of authority does not hold. So, it emphasizes that some cases escape the instrumental logic of the service conception and demands additional justification. The argument that lies at its core is the following. When it is less important for an individual to act according to the right reason (the service conception) than to decide for oneself how to act, the authority should give way to individual autonomy.Footnote ¹⁹¹ Seen in this light, it makes the justification of authority through the service conception conditional on it being compatible with the exceptions that fall under the scope of independence condition.

Raz presents three different cases to which the independence condition applies. The first case is concerned with parental authority when children’s decision-making capacity is still developing. It underscores that authority should let children develop their decision-making capacity and autonomy by granting a certain margin of error. So the authority should retreat and open space for them until they flourish and develop their individual autonomy. I will call it the individual autonomy exception. The second case consists of a comparison between having recourse to authority for technical (pharmaceuticals) and non-technical issues (marriage) and emphasizes why individuals are less justified to benefit from an authority in the latter than the former. I will call it essential services exception.Footnote ¹⁹² Third, Raz warns against the danger of cognitive laziness, noting that, ‘We are not fully ourselves if too many of our decisions are not taken by us, but by agents, automata, or superiors.’Footnote ¹⁹³ The third case underlines how important it is to keep an individual’s practical reasoning and decision-making capacity in good shape. Overwhelmed by the pressure of increasing demand for high-speed decision-making, individuals are more likely to use authorities and delegate their decision-making competence. As may be anticipated, when individuals hand their decision-making responsibility over to authorities, this may have deleterious effects on their individual autonomy and practical reasoning capacity in the long run. In particular, the over-use of authority comes with a price and jeopardizes individual autonomy after a certain point. I will briefly call it the authority dependency exception. In sum, the three exceptional cases that allow us to derogate from the rule of instrumental justification of authority are: (1) the individual autonomy exception; (2) the essential services exception; and (3) the authority dependency exception.

The right to democratic participation

What exactly are those non-instrumental values or reasons? It is hard to give a clear description of all the values embedded in the DLOs, yet we may follow the explanations made by Raz to excavate some of the basic values. First, Raz suggests that domestic authorities differ from their international counterparts in providing the following services: (1) enabling individuals to enjoy their democratic right to participate in public affairs; and (2) functioning as a forum in which people develop their own identity and respect value-pluralism.Footnote ²¹⁶ Put differently, those services are non-fungible and endemic to domestic authorities. First, international authorities are unable to meet the following service: a citizen’s right to participate in democratic procedures and have a say in public affairs. Second, domestic authorities are distinctive because they lay claim to comprehensive authority and strive to regulate the lives of individuals in a holistic manner by striking a balance between competing interests. It is evident that this is associated with the domestic authority’s claim to comprehensive authority and legitimacy, and its potential to provide an environment suitable for individuals to enjoy the benefits of becoming full members of their community.

For instance, a state cannot abrogate its responsibility toward its citizens by raising an argument like the following: ‘I cannot make the necessary legal regulations to increase your living standards owing to the stringent international economic regulations that bind us’Footnote ²¹⁷. The reason why this sort of argument fails to serve as a justification for a state’s failure to provide its citizens with basic services is simple: States are not on equal footing with international organizations in their claim to legitimate authority. Theirs is necessarily comprehensive because it provides individuals with some services unique to DLOs. States’ claim to regulate the lives of its citizens in a comprehensive manner is essential to promoting and protecting the value pluralism existing in a community. And that is, therefore, closely connected with democracy and an individual’s right to democratic participation. In contrast, international authorities are reluctant to go beyond their sectoral boundaries and find a balance between multiple stakes relevant to the case simply because of their claim to relative authority.

Raz enumerates four benefits that come with democracy: (1) stability; (2) peaceful transition of power; (3) loyalty; and (4) solidarity.Footnote ²¹⁸ Domestic democratic procedures therefore deserve respect and protection because they are home to many feelings, such as trust, solidarity and loyalty, as well as being beneficial for developing a sense of identity (‘defining one’s own identity as a member of a nation or some other group’).Footnote ²¹⁹ For now, those values find no home beyond nation-states, given the apparent failure of international authorities to garner the support of individuals and attract their loyalty.Footnote ²²⁰ Even though some international authorities have devoted considerable effort to democratizing the ways in which they operate, it is hard to say that democracy has gained any currency beyond the level of the nation-state. The EU, for instance, has developed various mechanisms for individuals to use their right to democratic participation at the European level, but to no avail. One simple reason for the scarcity of democracy beyond nation-states relates to the fact that international authorities rest their legitimacy mainly on instrumental considerations.Footnote ²²¹ For this reason, we are faced with the following dilemma: can international authorities preserve their legitimacy by merely grounding their legitimacy on instrumental grounds even when they avoid extending their legitimacy to ‘non-instrumental values’?Footnote ²²² They have so far carried on their activities in the limited areas where ‘people do not feel that they are making “sacrifices”’,Footnote ²²³ yet it is dubious whether they can maintain their legitimacy into the future. Raz expresses his concerns about this trend by noting that

To many, it may come as a surprise that Raz, as a legal philosopher, detected the main reason why international law is confronted with a populist reaction. For Raz, the simple fact that international authorities assume the role of states without being like them poses a dilemma for the former.Footnote ²²⁵ What we encounter here is an example of the paradox of global constitutionalism. As may be recalled, the SC envisions a process in which international authorities vested with technocratic expertise exercise their authority within a functionally circumscribed domain. So they must observe the relative domain in which they are operating to preserve its instrumental legitimacy. Yet they cannot generate feelings akin to trust and solidarity unless they go beyond their instrumental rationality, stretch their boundaries and extend their legitimacy to non-instrumental grounds. But when they go beyond their legitimate instrumental boundaries, they are prone to being charged with illegitimacy criticism simply because they are violating the legitimacy of another authority, namely domestic authorities. For this reason, the more they fail to garner the support of individuals and generate feelings such as loyalty, solidarity and trust, the more they are disposed to put their instrumental legitimacy in jeopardy. As international authorities rest their legitimacy mainly on instrumental grounds, they have problems generating feelings like trust and solidarity. They therefore need a creative leap to spawn those feelings and diversify their grounds for legitimacy. Yet the game must be played under the threat of populist reaction simply because whenever they are stretching their boundaries, they probably face nationalist and populist resistance. What I term the legitimacy gap, caused by the different kinds of legitimacy enjoyed by international and domestic authorities, is one explanation for why we encounter populist resistance against international law.

Democracy-Legitimate Authority Cycle

The contribution of democracy to developing a sense of identity and solidarity among citizens, as well as between citizens and authority, is stated above. A further key function of democracy is, according to Raz, to provide our political system with stability, regularity and predictability. Contrary to the commonsense approach that pits democracy against constitutionalism and the rule of law,Footnote ²²⁶ Raz associates democracy with stability. For him, democracy brings stability in the long term, even though it provokes public debates and discussions and sets in motion a process of contestation. Democracy’s contribution to stability is tied to solidarity, which ‘manifests itself most importantly in the degree to which they (individuals) are willing to make sacrifices or to suffer disadvantages for the sake of other members of their society’.Footnote ²²⁷ When solidarity is developed within a society, Raz argues, it has a positive impact on the health of a political system. Not surprisingly, the absence of solidarity is marked by democratic backsliding and political instabilities, where individuals are exposed to ‘inner tensions and disintegrative tendencies’.Footnote ²²⁸ Following the line of reasoning, we may conclude that democracy and solidarity are closely connected, and both play a major role in the health and stability of a political system.

Many benefits that come with the rule of law depend partially on the fact that ‘in democracies … rulers don’t have tenure’ and are ‘in a continual competition with one another’.Footnote ²²⁹ However, it is yet to be explored how democracy may strengthen the stability of a political system and keep it healthy. To address this, I suggest exploring how the SC impairs what I call the democracy–legitimate authority cycle, which suggests seeing democracy as an assessment mechanism through which individuals may measure the performances of their governments. If Raz is right in his contention that authority’s legitimacy is contingent on its being a better service provider than its alternatives, then one cannot but help ask how we can be sure that authority is really doing better than others. Namely, we need a mechanism to measure the authority’s performance and change it in case of dissatisfaction. Not surprisingly, democracy helps us kill two birds with one stone, as it empowers individuals to change the government when they are dissatisfied with its services. Because democracy provides a mechanism for a peaceful transition of power,Footnote ²³⁰ it not only contributes to the stability of the regime but also helps individuals measure the performance of their governments. So the simple fact that individuals are endowed with the right to vote in regular elections transforms an unstable legal system ridden with the threat of political revolution into a stable political system armed with a permanent assessment mechanism.Footnote ²³¹

As an assessment mechanism, democracy has further implications for the overall stability of a political system.Footnote ²³² For example, it helps individuals to maintain authorities’ services in good shape, prevent them from falling below a certain threshold and strengthen the overall stability of the political system in the long term. Seen in this light, it also functions as an enforcement mechanism that allows individuals to replace the old with the new government.Footnote ²³³ As sharply put by Jakab:

When democracy is worn out under the pressure of authoritarian or populist regimes, it is evident that it destabilizes the democratic assessment mechanism. Tushnet, for instance, asserts that when one political party dominates a constitutional system for a long time, there is a high probability that the regime degenerates into a rule by law systemFootnote ²³⁵. Put differently, what keeps authorities reliable and consistent is maintaining electoral competition between political parties in good shape.Footnote ²³⁶ Otherwise, it gets harder to appraise the performance of governments, keep authorities healthy and hold them politically accountable,Footnote ²³⁷ as exemplified by authoritarian and populist countries.

Like authoritarian and populist regimes, the neoliberal SC has a corrosive impact on the democratic assessment mechanism simply because it separates politics from the economy and reshapes our imagination of politics both at the internationalFootnote ²³⁸ and domestic levels. As already mentioned, neoliberalism narrows down the regulatory scope of DLOs by omitting many policies related to trade and economy from their regulatory scope. It therefore implies that ‘the space for domestic politics and contestation over such issues is more or less closed’.Footnote ²³⁹ And apparently the more the world is globalized, the higher the degree of internationalization and technocratization of law-making will be. Subsequently, many policies will be delegated to international authorities that operate at arm’s length from domestic authorities. However, it is not always unwarranted to benefit from international and technocratic institutions, as it may sometimes be done for the sake of democracy. I would like to stress that the costs incurred by the neoliberal SC may outweigh its benefits at some point. And one of the dangers that deserve significant attention is the way it bears on the democracy–legitimate authority cycle.

If an authority’s legitimacy is based on the services it is supposed to deliver, I find nothing amiss in claiming that the economy is one of the leading indicators of an authority’s success in delivering services.Footnote ²⁴⁰ Because the impact of economic policies on individuals’ lives is immediate and substantive, they help individuals to make a rough assessment of how well the government performed in the last couple of years. Seen in this light, the new constitutionalist is right to claim that neoliberalism has impoverished public discourses simply because it debilitates the democratic assessment mechanism by simply identifying the economy with technocracy and undemocratic governance.Footnote ²⁴¹ In brief, the depoliticization of economic policies potentially goes hand in hand with the politicization of other issues outside economics. The latter’s relative importance for individuals is likely to increase when they are assessing the performance of governments. Here, the main concern resides in the difficulty of measuring the performance of authorities after the transfer of a bunch of economic policies to international and technocratic institutions.Footnote ²⁴²

The neoliberal SC has further implications for the democracy–legitimate authority cycle because of its dissimilar impact on developed and developing countries. It puts the middle class under significant pressure and lays the foundations of a populist reaction to international and technocratic institutions in the developed countries. The primary reason why the middle class is further subject to economic pressure in developed countries is that they are forced to compete with incoming migrants under less favorable economic conditions than it was two or three decades ago. Its influence on developing countries is a bit nuanced, though. First, hyperglobalization results in the bourgeoning of the middle class in developing countries.Footnote ²⁴³ In other words, despite its distributional biases, hyperglobalization has brought with it many benefits, such as improving the living conditions of lower classes and increasing the overall welfare in developing countries. This creates a perception on the side of individuals that the governments – even those that are authoritarian and populist – are doing well simply because of the benefits accompanying hyperglobalization. In other words, the separation of economic from political liberalization allows authoritarian governments to reap the benefits of economic globalization without bearing the burden of political liberalization. China and Russia are exemplary cases in this regard. For instance, Matveev documents how economic growth and stability have always been foundational sources of legitimacy for Putin’s Russia.Footnote ²⁴⁴ When the economy is cut off from its political roots, the political incumbents are largely given free rein to govern in whatever way suits their interests with limited electoral control under weak democracies.Footnote ²⁴⁵ For this reason, populist and authoritarian leaders rarely call into question the rules of international economic law with which they find a way to accommodate their authoritarian and populist policies.Footnote ²⁴⁶ In sum, even though transferring economic policies into the international realm may increase global trade and overall welfare, it may also weaken domestic democracies and the democracy–legitimate authority cycle due to its impact on the democratic assessment mechanism.