Creating Rights in the Age of Global Governance: Mental Maps and Strategic Interests in Europe


This Article takes a first step towards developing a positive theory of rights in institutions of global governance through a study of the European Commission, one of the oldest and most powerful international organizations in existence today. I draw on the extensive political science theory on the European Union, in particular historical institutionalism, to explain the constellation of rights that European citizens are guaranteed today in their relations with their executive branch. Rights against government were created in three phases, each of which was the product of a strategic move by one or more European institutions to preserve authority in the face of opposition and each of which drew from a mental map of good government developed within the confines of the nation-state. As a result, today, European citizens enjoy three major, historically distinct, sets of rights in their relations with Europe's executive branch: the right to a hearing, drawn from the English common law tradition, the right to transparency, based upon northern traditions of open government, and the right to civil society participation, derived from both the international sphere and domestic traditions of corporatist interest representation. This Article also considers a number of competing theories of rights in European governance and shows that their predictions are not borne out by the evidence. Lastly, I develop the implications of my theory for another, emerging system of global governance, the World Trade Organization.


Comparative and Foreign Law | International Law

Date of this Version

September 2004