DEMOCRATIC EXPERIMENTALISM, NEW FORMS OF REGULATION AND LEGITIMATION OF LAW

Abstract

This article addresses the problems of legitimacy posed by new forms of regulation that are associated with governance as a model of exercising power distinct from “government”. Given the crisis of the traditional criteria of legitimacy anchored in the representative model of  democracy  of the nation-state,  governance  is claimed  to be a form  of regulation  not only more eff icient in terms of governability  of the complexity  of today’s  global society but  also  more  democratic  due  to the  role  attributed  to deliberation  and  participation  of private  actors and stakeholders in the decision  making  process.  In particular,  it analyzes the contributions  from the United States of the “democratic  experimentalism”  or “directly deliberative  polyarchy”  and its particular  influence  in the EU sphere,  within  which  new forms of governance and democratic experimentalism —exemplified by the case of the open method of coordination—,  have been presented as the most appropriate strategy to address the chronic problem of the democratic def icit of EU law and policy. Despite the attractive democratic  promises,  the author presents  the paradoxes  and risks in terms of democratic legitimacy  of these new forms of regulation  and how its call to society  to participate in decision-making  can be considered  more a myth than a reality.