important attempt to do so. Yet one might legitimately wonder whether even
a strengthened UN might successfully meet the stunning regulatory tasks at
hand. How might we subject the ‘‘neo-feudal’’ power blocs (organizations
like the World Trade Organization (WTO) and International Monetary Fund
(IMF), international arbitration bodies, various forms of ‘‘soft’’ transnational
legal regulation, etc.) presently operating on the global scene, in both a
normatively satisfactory and institutionally realistic fashion, to democratic
self-legislation? What form might general legislation and the rule of law
sensibly take at the global level? To be sure, non-state bodies will undoubtedly
play a key role as we struggle to oVer a real-life institutional answer to these
questions. But an insuYciently critical homage to (non-state) ‘‘governance’’
should not lead us to obscure the indispensable functions existing state and
new state-like institutions will need to perform in achieving novel forms of
self-legislation and the rule of law.
Whereas much of the critical theory work on these issues remains defensive
and even anxiety-ridden, tending to emphasize the threats posed to demo-
cratic self-legislation and the rule of law by globalization (Maus
2002 ; Scheuerman 2002 b; 2004 , 144 – 226 ), some theorists working in the
Habermasian tradition have begun to tackle these issues in more constructive
ways. Hauke Brunkhorst, for example, worries that transnational decision-
making is subject to weak but not yet strong publics. Civil society exercises
moral inXuence, but only a ‘‘ ‘loose coupling’ between discussion and deci-
sion’’ can be found at the global level (Brunkhorst 2002 , 679 ). Arguing that we
can separate the normative kernel of constitutionalism from its familiar
carrier, the modern state, Brunkhorst shares the understandable skepticism
of grandiose proposals for new forms of extended state authority at the global
level. Yet because normatively attractive legal and constitutional ideas can still
be salvaged from the wreck of the declining nation state, weak global publics
might still successfully be transformed into strong (that is, legally enforce-
able) publics via ‘‘egalitarian procedures for the formation and representation
of a globalvolonte generale, which would provide ‘direct access... for all the
interests concerned’ ’’(Brunkhorst 2002 , 686 ; 2005 ). The important point for
now is to recognize the potential perils of an interpretation of deliberative
civil society that misleadingly generates an unwarranted neglect—and even
skepticism—of the necessity of institutional mechanisms that will need to
play a crucial role in realizing the legally binding and eVectively accountable
general results of free-wheeling deliberation. Unfortunately, some strands of
Habermasian deliberative democracy probably succumb to those perils. Not
critical theory 99