Technocracy and the Law

Accountability, Governance and Expertise

Alessandra Arcuri, Florin Coman-Kund, Alessandra Arcuri, Florin Coman-Kund

• Verlag: Routledge
• Jahr: 2021
• ISBN:
  9781000390186
• Auflage: 1
• Thema: Betriebswirtschaft
• Thema: Unternehmensführung

Technocratic law and governance is under fire. Not only populist movements have challenged experts. NGOs, public intellectuals and some academics have also criticized the too close relation between experts and power. While the amount of power gained by experts may be contested, it is unlikely and arguably undesirable that experts will cease to play an influential role in contemporary regulatory regimes. This book focuses on whether and how experts involved in policymaking can and should be held accountable.

The book, divided into four parts, combines theoretical analysis with a wide variety of case studies expounding the challenges of holding experts accountable in a multilevel setting. Part I offers new perspectives on accountability of experts, including a critical comparison between accountability and a virtue-ethical framework for experts, a reconceptualization of accountability through the rule of law prism and a discussion of different ways to operationalize expert accountability. Parts I–IV, organized around in-depth case studies, shed light on the accountability of experts in three high-profile areas for technocratic governance in a European and global context: economic and financial governance, environmental/health and safety governance, and the governance of digitization and data protection.

By offering fresh insights into the manifold aspects of technocratic decisionmaking and suggesting new avenues for rethinking expert accountability within multilevel governance, this book will be of great value not only to students and scholars in international and EU law, political science, public administration, science and technology studies but also to professionals working within EU institutions and international organizations.

Part I

Perspectives on expertise and accountability in multilevel law and governance

1Conceptualizing expert accountability

Towards virtue

Jan Klabbers

1 Introduction

Possibly, the most outstanding characteristic of contemporary politics, at whatever level, is the abdication of political responsibility. In some cases, parliamentary majorities toeing the party line do their best to protect their fellow ideologues from being held accountable, and in some cases, politicians plan to escape any form of accountability by refusing to take decisions. Instead, they organize referenda, such as the ill-considered and ill-fated Brexit referendum held in the UK in 2016.¹ This is disturbing enough in its own right, and a perversion of democracy, but more serious still are those occasions where democratic decision-making has little or no traction left, either because decisions are taken elsewhere (think of how the US and the EU radiate their legislation outwards, with others having little choice but to accept), or because it is unclear who takes the decisions.²

The abdication of political responsibility is related, no doubt, to the economic mindset. Economists in the neoclassical tradition have long since figured out that when producers are confronted with unexpected costs, they try to shift these on to their consumers or, as the case may be, their suppliers. Those suppliers will try to do the same, and pass on the costs to their (other) consumers or suppliers, and from each individual perspective, doing so makes sense. An important point to note is that it makes sense because the underlying assumption is that companies as well as consumers are interested in maximizing their profits. In politics, this same underlying assumption now seems to have been adopted, with politicians no longer terribly interested in serving the nation, the common good or the public, but more interested in maximizing their own profit, i.e. their careers in politics, either as proper careers or as stepping stones to a lucrative post-political career writing their memoirs and touring the lecturing circuit.³

1 Jan Klabbers, ‘The Passion and the Spirit: Albert Camus as Moral Politician’ (2016) 1 European Papers 13.

2 See the brief observations by Friedrich Kratochwil, ‘Of Maps, Law, and Politics: An Inquiry into the Changing Meaning of Territoriality’ in Harry D. Gould (ed), The Art of World-making: Nicholas Greenwood Onuf and His Critics (Routledge 2017) 213.

The standard model of political authority, in vogue since the American and French revolutions, is no longer an accurate depiction of how political decision-making takes place. This model suggests (top-down) decisions by responsible political leaders, elected for that purpose, and ultimately under control (bottom-up) from the electorate.⁴ If the political leaders would not deliver on their promises, so the model suggested, the voters would reconsider matters and might end up voting for someone else. The result was a coherent and (more or less) legitimate picture, based around the idea of democratic accountability and serving the public good (however precisely defined), but without the troubling fiction that elected politicians should simply carry out the people's will – the latter is a populist conceit of fairly recent origin,⁵ and marred by the awkward circumstance that ‘the people’ itself is, politically, a hopelessly elusive concept.⁶ Democracy then is best seen as being about controlling the government rather than issuing binding instructions to the government.

This model has lost whatever accuracy it may once have possessed – and there are reasons to suppose that it never was very accurate to begin with, in that the model never properly captured the role of special interests, pressure groups, lobbyists, et cetera. Even so, it has been replaced by a different style of politics or rather, a different style of governing, which pays tremendous amounts of lip service to such things as democracy, transparency and participation, but which does not rely on formal mechanisms and procedures and, in the end, bears little resemblance to the ideas about what politics is all about that have been transmitted through Aristotle and his followers,⁷ ranging from Arendt to MacIntyre and Villa.⁸ Instead, it relies more than ever on the power of words, of concepts, of measures and indicators, and knowledge. Democratic governance has by and large been displaced by epistemic governance;⁹ and deliberative democracy, not so long ago enthusiastically embraced as the answer to democracy's deficits with even a possible application on a global scale,¹⁰ seems to have little traction left.

3 By way of example, former UK Prime Minister David Cameron, the genius responsible for the Brexit referendum, reportedly received a whopping 800 000 British Pounds as an advance on his to-be-written memoirs. See Esther Addley, ‘So what is David Cameron really doing now?’ The Guardian (London, 17 January 2019).

4 Maarten Hajer, Authoritative Governance: Policy-making in the Age of Mediatization (OUP 2009).

5 Very useful on this point is Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997).

6 Margaret Canovan, The People (Polity 2005).

7 Aristotle, The Politics (Sinclair transl., Penguin 1992).

8 Hannah Arendt, The Human Condition (University of Chicago Press 1958); Alasdair MacIntyre, After Virtue: A Study in Moral Theory (2^nd edn, Duckworth 1985); Dana R. Villa, Arendt and Heidegger: The Fate of the Political (Princeton University Press 1996).

9 Pertti Alasuutari and Ali Qadir, ‘Epistemic Governance: An Approach to the Politics of Policy-making’ (2014) 1 European Journal of Cultural and Political Sociology 67.

It is against this background that the much-maligned governance by experts must be situated and assessed. Over the last two decades or so, many have been the explorations of governance by experts. Arguably, social scientists were the first to note that much politically relevant decision-making takes place by groups of people not necessarily elected or appointed to politically relevant decision-making positions. Like all groups of people, experts within a particular office or organization (at whatever level) develop their own cultures, their own habits, their own mechanisms of inclusion and exclusion and even their own forms of resistance to hierarchy,¹¹ and these bureaucratic cultures tend to have an impact on political decision-making.¹² The insight as such is by no means novel,¹³ but it took a while before well-read international lawyers picked it up and alerted the international law community that all this could have a bearing on international law as well and might be worth studying.¹⁴ Part of the ‘mystery of global governance’ may well be that governance is exercised by experts, and that it turns out to be difficult to hold them to account.¹⁵

In this chapter, I will argue that aiming to establish the accountability of experts is, properly conceived, all but impossible, for a variety of reasons. One is that the notion of accountability is itself too unstable to be of much use; another is that the notion of expert defies easy definition and application; but the major reason is that it is precisely the point of governance by experts to be unaccountable. If accountability would be considered desirable, it could possibly (though not unproblematically) be established. But desired it is not: it is precisely the point of what has been called authoritative governance to remain elusive, unaccountable – Aristotle's classic division into governance by the one, the few or the many needs to be supplemented by a fourth category: governance by no one in particular, or at least no one identifiable (sometimes referred to as ‘the nobody problem’)¹⁶. It is only once this epistemological hurdle is overcome that lawyers and social scientists can even begin to think about holding experts to account. In the meantime, the best that can be hoped for is that experts behave decently.¹⁷

10 John S. Dryzek, Deliberative Global Politics (Polity 2006).

11 See, for instance, Remco Ensel, Alleen Tijdens Kantooruren: Kleine Cultuurgeschiedenis van het Kantoorleven (Vantilt 2008).

12 Insightful is Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (Cornell University Press 2004); John Mathiason, Invisible Governance: International Secretariats in Global Politics (Kumarian Press 2007).

13 See, for instance, Marilyn Strathern (ed), Audit Cultures: Anthropological Studies in Accountability, Ethics and the Academy (Routledge 2000).

14 What may have added to the attraction is that a focus on experts can be seen as helpful in overcoming the classic ‘agent versus structure’ problem: experts appear as agents working as structure, and thus, it may have been thought, phenomenologically helpful.

15 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press 2016); Erin Hannah, James Scott and Silke Trommer (eds), Expert Knowledge in Global Trade (Routledge 2015).

16 See Alessandra Arcuri and Florin Coman-Kund, ‘Introduction: Breaking Taboos, Talking Accountability’ (in this volume).

2 The notion of governance

Some time ago, the political theorist John Gray astutely confessed that he had no idea who was exercising what was then the relatively novel phenomenon of global governance.¹⁸ Clearly, he felt, global governance was not really exercised by individual states, nor was it immediately obvious that it was the sole province of international organizations. And tempting as it may have been to attribute global governance to multinational corporations, Gray clearly was not convinced, observing that many of them just acted in conformity with what they thought the market expected from them. As a consequence (although it is not certain Gray followed his own thought to the ultimate conclusion), it transpired that global governance was the work of no one in particular, since no one can control how markets operate and what they demand from market actors. Indeed, markets have constantly developed without much formal political steering.¹⁹ It is no doubt true, on the one hand, that markets owe much to governmental regulation and governments and international organizations can facilitate what goes on.²⁰ On the other hand, markets also develop spontaneously and, one is tempted to say, organically; they defy steering by identifiable individuals or organs beyond a bare minimum, even if embedded in legal rules and institutions.²¹

Gray may have been on to something: in a globalizing world, few things remain that are controllable in any meaningful sense. Markets operate on their own accord, and scarily, many things have been commodified to such an extent that markets are everywhere, and have taken over many tasks that used to be the province of deliberate (if not deliberative) governance.²² States have lost control of things such as transportation or education: whether intentional or not, all over the world such tasks have been privatized, with the result that the public idea behind education has given way to concerns about efficiency and profit margins. Market mechanisms have been introduced left, right and centre, resulting in the end of the once-heralded ‘primacy of politics’; this has been displaced by the ‘primacy of the bottom line’, often in the name of ‘the taxpayer’.²³ And on the few topics where governments have aimed to prevent commodification, grey or underground markets have appeared. Prostitution may often officially be taboo, but is nonetheless ubiquitous and resilient; where governments aim to limit migration, a private market has occurred both above ground (companies selling help in document processing or offering relocation services for a fee) and underground, with enterprising individuals promising to smuggle people for a fee.²⁴

17 Avishai Margalit, The Decent Society (Goldblum transl., Harvard University Press 1996); Jan Klabbers, Maria Varaki and Guilherme Vasconcelos Vilaça (eds), Towards Responsible Global Governance (University of Helsinki 2018).

18 John Gray, False Dawn: The Delusions of Global Capitalism (Granta 1998).

19 On the development of market thinking in terms of political theory, see Eric MacGilvray, The Invention of Market Freedom (CUP 2011).

20 Craig Murphy, International Organization and Industrial Organization: Global Gover...

Inhaltsverzeichnis

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• About the editors
• List of contributors
• Acknowledgements
• Foreword by Paolo Davide Farah
• Introduction: Breaking taboos, talking accountability
• PART I Perspectives on expertise and accountability in multilevel law and governance
• PART II Expertise and accountability in economic and financial law and governance
• PART III Expertise and accountability in environment, health and (food) safety law and governance
• PART IV Expertise and accountability in digitization and data protection governance
• Index