The Trouble with Persuasion – Courts and Legitimacy
By Marjan Ajevski, Postdoctoral Fellow, MultiRights
Recently I attended two conferences devoted to the same topic, the legitimacy of the international judiciary, a collection of variable who’s-who in the field of international judicial studies. As always when there is an intersection of lawyers, philosophers and political scientists one gets the impression that the points of the discussion somehow manage to go over or under the radar of one group or another and there is a happy confusion of comments or which I myself am surely guilty of. But this is not the reason for this post for if the communication between the disciplines was so easy, if they had shared language, methodology, tradition of inquiry then they would not be different disciplines at all (but different subgroups of the same discipline) which is not to say that talking with each other is impossible. No, the reason for this post is the almost unequivocal difference drawn between the legitimacy of a court and its persuasive power a difference drawn from the start, in the definition of legitimacy.
Legitimacy, or so is the assumption, stems from the notion of governance, the notion of substituting one’s decision (or making a decision) for the collective, directing that decision at that collective and thus constraining otherwise unconstrained behavior either through general rules or through individual decisions. Legitimacy is that which makes others obey the authority’s decision. In this sense, legitimacy is about the right to rule, the right to make a decision and (sometimes) enforce it. Legitimacy might be best understood if contrasted with the two other basis of deferring to authority, power and rational persuasion. It is between these two polar opposites where legitimacy finds its niche creating the notion of deference not because one has been rationally persuaded in the ‘goodness’ of the substantive outcome nor because the outcome has been back up by ‘raw’ power but because the body in question has the right to issue such an outcome.
The force of this distinction comes from the everyday observations that many decisions are followed by the losing party (who has, obviously, not agreed to the substantive outcome of the decision) even in the absence of using ‘raw’ power to enforce this particular outcome. This compliance is explained by the notion of legitimacy, the addressee has complied even in the absence of agreement and coercion; what is left is the addressee’s feeling that the judgments is somehow legitimate. Therefore, what makes an institution legitimate, what makes a court legitimate, is some sort of witch’s brew, a preverbal je ne sais quoi, of factors that creates deference in the addressees.
There have, generally, been two ways in which to portray the witch’s brew of legitimacy, one being the normative approach where different moral and political factors are stipulated as ingredients of the brew and the sociological/empirical approach where the approval of the brew’s taste is the proof of its magic. And these two conferences were awash aplenty in both. The normativists stipulated different ingredients stemming from Kant and/or Habermas while the empiricists put forward models that would explain judicial behavior and consequently legitimacy and urged one or another set of behavior modifications in order for a court to have its rulings followed.
Now, of course, there is small chink in the armor of both approaches for what they presuppose is a ‘unified’ notion of legitimacy, a single set of ingredients that addressees use to judge the legitimacy of an authority’s decision. Under these assumptions all addressees have a shared notion of the normative criteria by which they judge the legitimacy of an institution and therefore, have a shared notion of which institution is legitimate and should be deferred to. However when these assumptions meet everyday, run-of-the-mill judicial decision-making things don’t add up, since some decisions are not follow while others are, or some type of courts (like human rights courts) do not fit the predicted models of ration self-interested judicial behavior that breeds effectiveness according to the model (which invites the question are they not courts or maybe effective courts?) and therefore may not be legitimate(?!). Furthermore, some courts that have similar types of substantive jurisdiction and powers simply cannot get off the ground while others have a roaring success and are held up as poster boys of the international judiciary.
But of course, an international court’s audience is diverse, not just diverse in the sense of the way that different nations are diverse in their morality and interest and their concept of legitimacy, evidence and justifications but in the added sense that international courts addressees are different in type for they are consisted of not only states (or at least not states as a whole) but by branches within a state, of domestic and international civil society, of other international organizations – including other international courts – all having different conceptions of what criteria make an authority legitimate, of which issues, institutions, reasons and justifications are the proper preview of that court. It seems that in such an environment the only way out for a court to have its judgment followed is to persuade some parts of its audience that either this particular decision is a ‘good or just’ outcome and/or that in doing its work it has adhered to some substantive notions of the correct procedure even though the outcome itself maybe not favorable to that part of the audience. It can argue that the specific decision at hand stems from a notion of substantive justice that some part of its audience adheres to or that its decision stems from applying the correct procedural steps that in the long run protect the values and beliefs that that segment of the audience holds dear. What a court can and does do is persuade that what is has done is to adhere to some substantive notion of various principles, principles held dear by some important segment of its audience but not by others. One would suspect that it all has the air of unpredictability, of a hit and miss affair of, gulp, ad hocishness for this is what it means to have persuasion at the center of legitimacy since sometimes it will work and at other times wont and in the times that it will work it will only work for part of its audience and for a limited time creating the need to make and remake its legitimacy with every decision cast for cast is the right word since like a dice sometimes it will work and other times it will not but so long as the court manages to convince its audience to keep playing, like the bank, it will always win in the end.
Which brings me back to the title of this post the trouble with persuasion for what persuasion brings to the table is the well know Enlightenment fear that courts are nothing more than Rethoriticians, beholden to no substantive notion resting not on justice but on the power of the pen, on manipulating (performing a Jedi mind trick – these are not the droids you are looking for) and pandering its audience to do or not do something. And since this in itself is a frightening notion to have, it must be that legitimacy is different from persuasion, it must be beholden to a set of criteria that are universally shared, it must be due to their democratic or constitutional or religious je-ne-sais-quoi-ness rather than the courts’ everyday construction and re-construction, of alignment and re-alignment of the different and sometimes conflicting sets of their audience’s criteria of legitimacy that creates a legitimate institution and not something else. In short it must be predicable like Newtonian physics rather than contingent and contextual for being contingent and contextual would mean that a court has to blindly stumble in the dark and play in an area where success is far from certain and where the (probably more useful) suggestion to a court would be ‘know your audience’ and learn what works best, but to suggest that is to suggest the obvious since can one imagine a court not doing its best or not handing its best judgment? Best for whom you ask, well that just proves my point.