Why Law "Beyond the State" Need Not Be a Threat to Democratic Values

Discussions of “law beyond the state” almost inevitably run into objections from those who believe that sub- or supranational legal orders necessarily subvert local democratic governance. Self-proclaimed populists and others express concern that the “will of the people” will be unduly subjected to the dictates of “cosmopolitan elites”1 or local factions, or corporate capture. These objections range across the political spectrum. Those on the right tend to focus on concerns that transnational orders will impose human rights or immigration rules on a national polity, while those on the left worry about trade regimes that might impose local labor or environmental harms, allow too much industry selfgovernance, and so on.

But at root level, most of the critiques reflect concerns that non-state regimes are inherently illegitimate as a matter of national democracy or state interest.