Reading 3: Bodansky
Bodansky, Daniel (2013). "Legitimacy in international law and international relations." Interdisciplinary Perspectives on International Law and International Relations: The State of the Art: 321-342.
Over the past decade, there has been an explosion of interest, both among international lawyers and international relations scholars, in the legitimacy of international institutions. The issue of international legitimacy raises many important questions. Conceptually, what do we mean by “legitimacy” and what is its relation to other concepts such as legality, authority, obedience, power, self-interest, morality and justice? Normatively, what standards should we use to assess the legitimacy of international institutions? Descriptively, what standards do different actors (government officials, international bureaucrats, civil society groups, and business) actually use in assessing the legitimacy of international institutions? Finally, causally, what factors explain the creation of institutions with normative legitimacy, wha factors explain why institutions are accepted as legitimate, and how much practical difference do beliefs about legitimacy make - for example, for the effectiveness and stability of an institution? This paper surveys the international law and international relations literatures on these issues.
Why this reading?
This article provides a solid overview of the perplexing uses of various concepts of 'legitimacy' as used for international law, including a discussion about the impact of actors' beliefs about legitimacy - which he calls 'descriptive legitimacy.' He calls for a more differentiated, contextual approach in studying the normative legitimacy of particular institutions, for different issue areas. This seems appropriate for the study of the legitimacy of international courts.
Questions for discussion
Bodansky's account applies to international law in general. Who are the agents, and which are their actions, that may be affected by their beliefs about a particular international court's legitimacy?
How does Bodansky distinguish between legitimacy, rational persuasion and power as modes of influence?
How does he distinguish between normative legitimacy and descriptive legitimacy? Is this a plausible distinction? Is it predominant?
Bodansky claims that international lawyers and International Relations scholars tend to think that normative and descriptive legitimacy go together in practice. Is this generally correct? Is it wise?
In what sense is legitimacy 'content independent'?
How does Bodansky's account of legitimacy fit with international Courts?