The Concepts of Legitimacy

The second in the series of PluriCourts reading seminars discusses texts by Daniel Bodansky, Allen Buchanan and Robert O. Keohane, and Nienke Grossman.

Reading 1: Bodansky

Bodansky (2013). "Legitimacy in international law and international relations." Interdisciplinary Perspectives on International Law and International Relations: The State of the Art: 321-342.

Abstract

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.

Notes

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

  1. 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?

  2. How does Bodansky distinguish between legitimacy, rational persuasion and power as modes of influence?

  3. How does he distinguish between normative legitimacy and descriptive legitimacy? Is this a plausible distinction? Is it predominant?

  4. 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?

  5. In what sense is legitimacy 'content independent'?

  6. How does Bodansky's account of legitimacy fit with international courts?

Reading 2: Buchanan and Keohane

Buchanan and Keohane (2006). "The legitimacy of global governance institutions." Ethics and International Affairs 20: 405-437.

Abstract

"We articulate a global public standard for the normative legitimacy of global governance institutions. This standard can provide the basis for principled criticism of global governance institutions and guide reform efforts in circumstances in which people disagree deeply about the demands of global justice and the role that global governance institutions should play in meeting them." (405)

The authors list three parts of their 'complex standard of legitimacy': "Minimal moral acceptability, comparative benefit, and institutional integrity are plausible presumptive substantive requirements for the legitimacy of global governance institutions." (424). They also want to include some 'democratic' standards - cf. p 434.

Notes

Why this reading?

The authors - a political philosopher and an international relations scholar, respectively, draw on their vast and complementary backgrounds to address what they take to be an important task for theories of legitimacy for international governance institutions  - presumably including international courts - namely to defend "a middle ground between an increasingly discredited conception of legitimacy that conflates legitimacy with international legality understood as state consent, on the one hand, and the unrealistic view that legitimacy for these institutions requires the same democratic standards that are now applied to states, on the other." (405)

Questions for discussion

  1. The authors identify several important contributions of 'global governance institutions' (pp 406-408).  How does this account apply to international courts, and how does it compare to other accounts of their 'functions' ?

  2. The authors hold that legitimacy of these governance institutions is important. Why? Do you agree?

  3. How do they understand legitimacy to provide a 'content-independent' reason to comply (411)? Do you agree?

  4. The authors provide a list of desired charactistics of a standard of legitimacy for such global governance institutions (417-18). Do you agree with them? Do they apply to international courts?

  5. Does the 'complex standard of legitimacy' live up to the list of desired characteristics? Should all of the component standards apply to international Courts?

  6. One reason why the authors hold that institutions which satisfy this complex standard has the right to rule, is that such an institution "has epistemic virtues that facilitate the development of more demanding standards and the progressive improvement of the institution itself."  What do you make of this argument?

Reading 3: Grossman

Grossman (2013). "The normative legitimacy of international courts."  Temple Law Review 86: 61-105.

Abstract

This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both procedure and substance. First, legitimacy requires a reimagining of procedural fairness to include those whose international rights and duties are being adjudicated by international courts. Democratic theory can help to justify the authority of international courts so long as stakeholders are given the opportunity to participate in the formulation of policies that affect them. In addition, international courts must adhere to certain universal standards of justice. They cannot facilitate the violation of a set of core norms, including prohibitions against torture, slavery, racial discrimination, and genocide, and still retain their legitimacy. Finally, the extent to which an international court implements the objectives it was created for also affects its legitimacy.

Notes

Why this reading?

This article is an interesting early contribution to the more specific issues of the legitimacy of international courts, rather than legitimacy in general or of international law.

The author argues for three related grounds for the legitimacy of international courts: (1) procedural fairness, extended beyond litigants to all stakeholders whose rights are affected by IC rulings; (2) adherence to “certain universal standards of justice,” including some human rights prohibitions against torture, slavery, racial discrimination and genocide; and (3) implementation of the objective for which the court was established. 

Note: Grossman refers to Raz' argument; we discuss that later in the semester.

Questions for discussion

  1. With regard to claims to participation, Grossman argues that "nonlitigating stakeholders whose interests are implicated must have the opportunity to influence outcomes. This argument is grounded in democratic theory." (81) What do you make of the democratic argument laid out in the article?
  2. Which human rights are included, on what grounds?  Would you agree? What are plausible objections to this list and the focus on 'respect' rather than e.g. 'protect' these rights?
  3. What are the institutional implications of 'democratizing' the international courts? Do you find the arguments persuasive?

 

This series of PluriCourts reading seminars will consist of 6 meetings in the spring of 2016. Each seminar discusses 2-3 readings. It is assumed that all participants have read the texts in advance of the meeting.

 

Tags: Human Rights, Trade, Criminal law, Investment, Environment, Origins, Function, Effects, Legitimacy
Published Mar. 17, 2016 9:52 AM - Last modified Aug. 17, 2016 2:04 PM