The Concepts of Legitimacy (Continued)
The third in the series of PluriCourts reading seminars discusses texts by Joseph Raz, Jeffrey Staton and Will Moore, and Yonatan Lupu.
"Legitimate authorities provide pre‐emptive reasons for action, in that the reasons they provide are not to be added to all other relevant reasons when assessing what to do, but should exclude and replace some of those other reasons. Furthermore, legitimate authorities are dependent in the sense that they ought to issue directives that are based on reasons applying independently to the subjects of the directives. The pre‐emption thesis and the dependence thesis are closely related to the normal justification thesis, which states that the normal justification for authority involves showing that the alleged subject is likely to comply better with reasons applicable to him if he accepts the authoritative directives rather than trying to follow the reasons directly. The chapter ends with a discussion of the nature of the explanatory‐normative reasoning employed in the book."
Why this reading?
Joseph Raz' account of legitimate authority - the "Service Conception" - is a central contribution to the discussions about how we should understand the concept of 'legitimacy', which many other authors refer to. This early presentation lays out the central ideas; later Raz has developed the account to clarify and defend aspects of it against several critics.
Questions for discussion
- Raz claims that bodies that have de facto authority - and not just power - claim to have legitimate authority, that is: the right to rule those who are subject to its power.
- The puzzle Raz starts with is how it can be that a directive issued by some body, conostitutes a reason to act - and even a duty to act - for another body. Which such apparent puzzles arise for international courts? what sorts of duties do their judgment impose on various 'compliance constituencies'?
- His answer is in part that a purported legitimate authority must actually issue directives - including judgments - that enable subjects to better conform to reasons they anyway have for acting. One of the points of authorities is that their directives pre-empt the subjects' judgments in a particular case. Does this fit with international courts' judgments and interpretations?
- Raz lists five reasons for when an authority may be legitimate (p 75). Which of these - if any - might apply to international courts?
Staton and Moore (2011). "Judicial Power in Domestic and International Politics." International Organization 65: 553-587.
"Although scholars have made considerable progress on a number of important research questions by relaxing assumptions commonly used to divide political science into subﬁelds, rigid boundaries remain in some contexts. In this essay, we suggest that the assumption that international politics is characterized by anarchy whereas domestic politics is characterized by hierarchy continues to divide research on the conditions under which governments are constrained by courts, international or domestic. We contend that we will learn more about the process by which courts constrain governments, and do so more quickly, if we relax the assumption and recognize the substantial similarities between domestic and international research on this topic. We review four recent books that highlight contemporary theories of the extent to which domestic and international law binds states, and discuss whether a rigid boundary between international and domestic scholarship can be sustained on either theoretical or empirical grounds. "
Why this reading:
Staton and Moore challenge the common assumption that international and domestic courts are situted in fundamentally different contexts, and therefore are best studied in separate litteratures. If they are right, in that research on international courts can fruitfully draw on research from the domestic level (and vice versa), much can potentially be won by improving rather than re-inventing wheels that are already rolling.
Questions for discussion:
- Their argument targets political science, and the entrenched subfield divide between international relations and comparative politics. To what extent is the general problematique relevant also to law and philosophy?
- Are there any risks with downplaying the distinction between international and domestic law and politics?
Lupu (2013). "International Judicial Legitimacy: Lessons from National Courts."
"How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy can be more difficult for international courts for two key reasons: (1) they serve audiences with more diverse preferences than national courts; (2) they are less likely to be able to predict which rulings will result in significant backlashes from these audiences."
Why this reading
Lupu provides a (rare) example of a scholar following the prescription of Staton and Moore. He explicitly builds on the research on domestic courts to improve our understandning of international courts, in an area which is of central importance to PluriCourts: Explaining social legitimacy of courts.
Questions for discussion
- To what extent is Lupu’s study a successful indication, or a warning sign, of the potential of the bridging-approach?
- Lupu argues that international judges have less information about important compliance constituencies compared to domestic judges, which negatively affects their ability to generate social legitimacy. Does that apply to all international courts and tribunals? Can we assume that the variation is less significant when comparing different international courts?
- The social legitimacy of courts seems to be driven by the perception of courts as “apolitical” actors. Paradoxically, at the same time, courts need to be politically strategic in order to build legitimacy. What can we conclude from this paradox regarding the legitimation strategies available to international courts?
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.