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Legitimacy, Justice and Public International Law


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 (ISBN-13: 9780521199490)

Legitimacy, Justice and Public International Law
Cambridge University Press
9780521199490 - Legitimacy, Justice and Public International Law - Edited by Lukas H. Meyer

Introduction: Legitimacy, justice and public international law. Three perspectives on the debate

Lukas H. Meyer and Pranay Sanklecha

In this introduction, we attempt to elucidate three theoretical perspectives that are helpful in framing the contributions to this volume. In the course of this elucidation we also attempt to indicate some important problems that the debate currently faces. We do this through discussions of international legitimacy, international justice and the relations between ideal and non-ideal theory.

International legitimacy. From normative authority by consent to instrumental legitimacy

Questions of legitimacy have long been central to both political philosophy and political practice. It is not merely vanity that leads dictators of virtually all stripes to first decide to hold elections and then announce that they have won 96 per cent of the vote in them. Saddam Hussein, for instance, held a referendum in 2002 on whether he should continue as ruler of Iraq for the next seven years, and after the election was held it turned out that out of 11,445,638 eligible voters, every single one voted in favour.1 The natural question to ask is: why bother? Why bother to hold sham elections with sham results when you hold power anyway? There are many possible answers, but two are especially relevant here. The effect of legitimacy is, or can be, twofold. First, it makes it easier to exercise the power one does possess. Second, and as important, it can often increase the scope of the power one possesses. Legitimacy matters

in the real world because it affects power, and power matters because it creates the ability – on some views, is just the ability – to get things done.

In this section, we will consider three important traditions in the debate on legitimacy. These are the consent, instrumentalist and procedural traditions respectively. We will argue that the consent tradition is generally deemed to be unsatisfactory when applied to the international context, at least when consent is thought of as a sufficient condition for legitimacy. The instrumentalist and procedural traditions have found more favour in the international context, and we will attempt to outline some important ways in which these traditions have influenced the debate on international legitimacy. Besides identifying areas of consensus in the debate, we also attempt to describe some important problems that this consensus faces and will need to resolve.

Before beginning a discussion of legitimacy, however, we must first make a distinction between descriptive and normative senses of the concept of legitimacy. On the dominant descriptive view (which comes from Max Weber2), ‘a norm or an institutional arrangement is legitimate if, as a matter of fact, it finds the approval of those who are supposed to live in this group’.3 Legitimacy in this sense is simply the fact that the subjects of the norm or institutional arrangement believe that norm or arrangement to be legitimate.

The normative sense of legitimacy deals with whether this belief is correct – i.e. whether that norm or institutional arrangement satisfies certain specified conditions for possessing legitimacy. As Arthur Applbaum points out, one could of course hold the view that one of the conditions – or even the only one – for possessing normative legitimacy is that most people subject to the rule of an entity believe it to possess normative legitimacy, but ‘this is a claim about the normative criteria for having moral legitimacy – a particular conception – not a claim about the meaning of moral legitimacy’.4 It is possible, then, for a political authority to be legitimate in the descriptive sense while being illegitimate in the

normative sense; this is what we might say, for instance, of the rule of kings in the Middle Ages. The chapters in this volume, and therefore this introduction, concentrate on normative legitimacy.

There are various ways in which one could argue that entities are legitimate in the normative sense, and there are also various ideas of what follows for the political entity and its subjects from the political entity possessing normative legitimacy. We will outline the more influential views briefly because this background is necessary for placing the contributions to this volume within the tradition of the debate on legitimacy and authority. This will also, we hope, have the effect of identifying some small consensus on which tradition appears best suited to dealing with the specific challenges raised by considering legitimacy in an international rather than domestic context.

One very important understanding is found in the consent tradition, and its basic idea can be stated simply: it is the consent of persons within a state to the authority of the state that legitimates the state with respect to those persons. This simple formulation is obviously not a full expression of a fully worked out consent understanding, but every such understanding has this insight at its heart, and it is sufficient for the purposes of this introduction to work with this simple formulation.

Two main interpretations of consent within this tradition can be distinguished. The first is that consent is to be understood as hypothetical consent,5 the second that it is to be understood as historical consent. David Hume raised powerful criticisms against both interpretations. He objected to the interpretation that historical consent could legitimate by first arguing that there never was historical consent in the first place.6 Further, even if it was true that the historical parties in given historical circumstances gave their consent, it does not follow from this that presently existing parties are bound by this historical consent. Hume also levelled this kind of objection at the idea of hypothetical consent, the idea being that while the hypothetical parties in the hypothetical position might have hypothetically consented to certain rules, this does not bind actual parties in actual positions.7 Those rules may be worth following

for several reasons, and so actual parties may agree to follow them, but they agree to follow them because of those reasons and not because hypothetical parties would have agreed to follow them in hypothetical circumstances – hypothetical consent is, or so the argument goes, both non-binding on and irrelevant to actual people in real situations. The second objection to hypothetical consent, meanwhile, is also simple but powerful. Consenting to being tortured, or killed, does not legitimate being tortured or killed, and promising to obey orders to act in ways that are morally prohibited does not justify acting in such ways. At the very least, then, consent cannot be the only condition for the legitimacy of an authority.

These objections are not decisive but are important to outline because they describe problems that will be faced by any account of international legitimacy that is based on hypothetical consent. Having mentioned these problems we will not further pursue the hypothetical consent model, because one view in the context of international legitimacy has been that it is the actual consent of states to international institutions that legitimates those institutions. When consent theory is discussed in this volume, it is this view which is considered.

The first three chapters in this volume are unanimous in rejecting this view (i.e. the one from actual consent) of international legitimacy. They offer a variety of reasons which together amount to a substantial case against the extension of the consent idea. Many states are themselves illegitimate, for instance, and this makes it difficult to see how their consent could legitimate an international institution. If in response to this one claims instead that it is the consent of democratic states that legitimates international institutions, one faces other problems. First, there is the problem of what Allen Buchanan and Robert O. Keohane call ‘bureaucratic discretion’,8 which is the idea that even within democratic states ‘at some point the impact of the popular will on how political power is used becomes so attenuated as to be normatively anaemic’.9 This problem would exist for international institutions even if there was a world democracy, but given its absence the problem of bureaucratic discretion becomes even more important at the international level because ‘global governance institutions require lengthening the chain of delegation’,10 i.e. the chain between the popular will and the exercise of political power. Second, as Simon Caney remarks, the restriction to democratic states also creates the problem of explaining how and why

international institutions ‘possess legitimacy over the unfortunate members of illiberal states whose lives are structured by these institutions but have no input into the process’.11

Additionally – and this problem arises whether we limit the legitimating power of consent to democratic states or not – the imbalance of power between states means that weak states may have no choice but to accept a particular international institution, and this makes it difficult to argue that they have truly consented to it. The imbalance of power creates the further problem that even if we could argue that weaker states did somehow consent to international institutions, the design and operation of these institutions would be dominated by the more powerful states and used to serve their ends, thereby creating injustice and making it difficult to claim that the institutions were legitimate.

Theorists of international legitimacy seem to agree that the consent tradition cannot be used as an exclusive explication of the conditions required for international legitimacy. This looks like being one of the areas of consensus referred to earlier. Note that this is, as one would expect in such a contested field, a very limited claim – we suggest that the consensus is only that the consent tradition cannot be used to provide sufficient conditions for international legitimacy; whether state consent is a necessary condition or not is still up for grabs. Buchanan and Keohane, for instance, argue that ongoing democratic state consent is a necessary but insufficient condition for international legitimacy.12

Turning away from the consent tradition, we consider now a second major tradition in the debate on legitimacy, namely that of instrumentalist accounts of legitimacy. The most sophisticated account in this tradition comes from Joseph Raz, and consists of what he terms the service conception of authority.

The idea at the root of the service conception is that an authority is legitimate for a person when (a) by obeying its orders that person will do better at acting for the reasons that she ought to act for independently (the normal justification condition), and (b) the authority takes those independent reasons into account when it issues its directives (the dependence condition). It follows from these two conditions, argues Raz, that the directives of a legitimate authority are not an additional

independent reason for action, but rather a reason for action that excludes some independent reasons (the pre-emption thesis).13

This is an account of authority that specifies both a justification right on the part of the agent exercising power plus a content-independent obligation to obey on the part of the subjects under the authority of that agent. Rather than directly attacking this interpretation of authority, one important strategy in the debate on international legitimacy has been to attempt to drive a wedge between what we will call ‘authority’ and ‘legitimacy’.14 Many seem to adopt this strategy and doing this might well be another area of consensus in the debate. Roughly speaking, the idea has been to first suggest that legitimacy consists only of the justification right on the part of the agent exercising that power without any corresponding obligation to obey, then to attempt to secure legitimacy rather than authority for international institutions.

This is an understandable move, because the normal justification condition and the dependence condition are clearly very difficult to satisfy. Because of its importance in the international legitimacy debate, we would like to briefly point out one important problem that has to be dealt with if the move is to be successful. This is the question of whether the distinction between authority and legitimacy, as it is outlined above, can be sustained at all. Does an agent-justification right make sense without a corresponding duty?15 Broadly speaking, there are two possible options. One would either have to deny that an agent-justification right implies any duties on the part of others, or one could accept an implication but argue that what was implied was something less than a duty. If one takes the first option, one faces the problem that it then becomes more difficult to understand what the right in question actually means. Normally, when we say, for instance, that one has a right to free speech, we understand this right as entailing some sorts of duties on the part of others; and even if this duty is simply not to interfere with, rather than promote, free speech, when fleshed out this often amounts to substantial

duties. If one were to take the second option instead, a difficulty would lie in explaining exactly what was implied, and how these demands, whatever they were, were to be meaningfully distinguished from duties.

The stringent requirements of the service conception along with how influential it has been have together made a major contribution, then, to the direction the international legitimacy debate has taken. In addition, the tradition the service conception exemplifies (i.e. instrumentalist interpretations of legitimacy) has also been very influential in the debate on international legitimacy.

We can see this influence in Arthur Applbaum’s contribution to this volume (Chapter 10). He attempts in it to identify conditions under which the use of force in international relations is morally permissible. He puts the question thus: is forcing a people to be free possible, and if so, is it ever morally permissible? Now, forcing a people to be free, if possible, seems like a classic case of a paternal action, and Applbaum argues that paternal actions are most likely to be just when three conditions are met: the freedom of the agent being paternalised is already impaired, the good at stake is that agent’s future freedom, and the agent’s retrospective endorsement is likely. The agent’s retrospective endorsement is most likely, of course, when the paternal action results in the agent’s future freedom being secured. Applbaum claims, that is, that a necessary condition for the legitimacy of forcing a people to be free is that the use of force should result in certain effects, namely that the agent’s future freedom be secured.

Buchanan and Keohane argue in Chapter 1 for a standard of legitimacy which contains, amongst other things, the following two conditions: in order to be legitimate, international institutions must (1) not violate the least controversial human rights and (2) provide benefits that would otherwise not be obtained, compared to other practically feasible institutions and not compared to the optimal case. The second condition is clearly in the tradition of instrumental justifications of legitimacy, and while the first can be seen as a constraint, it is also plausible to either see it, or recast it, as an instrumental condition that needs to be satisfied for institutions to be legitimate. Similarly, Caney also argues in Chapter 3 for a standard of legitimacy which includes the condition that for an institution to be legitimate it must ensure that ‘persons’ most fundamental rights are upheld’, and he explicitly refers to this as ‘an instrumental component’16 of his standard of legitimacy.

This seems to be another of those areas of consensus in the debate on international legitimacy. Again, however, it is necessary to be clear about what we are claiming exactly. It is the limited claim that any account of international legitimacy seems to pay homage to the tradition of instrumentalist justifications of legitimacy by accepting that at least one part of the standard for legitimacy is that the institution in question satisfies certain instrumental considerations. We are not claiming that there is a consensus that instrumental considerations constitute sufficient conditions for the legitimacy of international institutions, but rather that there seems to be agreement that they are necessary ones.

Samantha Besson’s chapter in this volume (Chapter 2) brings out very clearly, in fact, that there isn’t agreement on instrumental considerations being sufficient to legitimate international institutions. She attempts to provide a feasible model of instantiating global democracy. The idea is that given the weaknesses of the view that state consent can legitimate international institutions, the model of global democracy she proposes could serve as a better way of legitimating those institutions. Her chapter can be seen as flowing from a third important tradition in the debate on legitimacy and authority, namely the idea that the legitimacy of institutions derives from the procedures they follow in issuing their directives.17 One strand in this tradition, and the one that Besson’s chapter can be understood as belonging to, is that these procedures are democratic ones,18 but this is not settled, for there seem to be ways in which procedures could legitimate without them being democratic.

Buchanan and Keohane, and Caney, include different procedural elements in the conditions for legitimacy that they propose in their respective contributions to this book. One of Caney’s conditions, for instance, is that in order to be legitimate international institutions must ‘provide a fair political framework in which to determine which principles of justice should be adopted to regulate the global economy’.19 Buchanan and Keohane, meanwhile, argue that legitimate international institutions must make ‘provision for ongoing, inclusive deliberation about what global justice requires’.20

It is not the aim of Steven Ratner’s chapter (Chapter 4) to provide procedural conditions for legitimacy, but his contribution can also be fruitfully seen as being part of the debate that centres on this tradition. He takes existing international institutions as a fundamental starting point and subjects these to analysis aimed at answering the question: do they act ‘impartially in the broad sense of not playing favourites in the way they treat certain actors and situations with which they deal?’21 Among the institutions he considers are the Security Council and the IMF, and the decision-making processes of both these organisations can certainly be said to use partial procedures.22

Given this partiality, the tradition of procedural legitimacy could be understood as providing a basis for the claim that these international institutions are illegitimate. Ratner argues, however, that in many cases unequal treatment can be justified from a second-order impartial perspective. For example, the nature of the Security Council could be defended on impartial utilitarian-type grounds by arguing that it would be paralysed with a large membership, or that the veto promotes stability and peace. This is an impartial justification because the limited and exclusive composition of the Security Council is justified on the basis of the benefits that such a composition would in theory generate for all countries, namely the preservation of international peace and security.

Ratner does not argue that the possible second-order impartial justifications of unequal treatment are conclusive or even uniformly persuasive. Rather, the point is that any appraisal of international organisations needs to move beyond knee-jerk opposition to unequal treatment – it can be legitimate for these organisations to make distinctions in whom they admit, who will decide how they act, and what will be the target of their decisions. Further, these distinctions need to be justified from an impartial perspective, because while partiality may be justifiable – even desirable – in private interaction, justice in the context of international institutions demands the higher standard of impartiality.

Ratner can be understood, then, as arguing that while international institutions ought to be impartial this does not mean that the partial procedures that they actually follow should be rejected out of hand. He

provides a possible defence of the (first-order) partial procedures of institutions like the IMF and the Security Council, and this defence makes most sense when it is understood as a challenge to the influential view that legitimacy requires that specific sorts of procedures – in this case (first-order) impartial ones – be followed. This defence, as we have said, consists of suggesting second-order justifications, such as defending the partial nature of the Security Council on the basis of the benefits this provides to all countries. This type of justification could also be read as being in line with the instrumentalist tradition of legitimacy, because such a defence rests on the first-order partial procedures having certain effects.

Ratner’s chapter shows that there can be, and is, much debate over what procedural legitimacy requires. The general debate, however, seems to be inching towards a consensus that a procedural element, whatever it might consist of, is one of the necessary conditions for the legitimacy of international institutions, and more slowly towards the idea that this procedural element has to be, if possible, democratic. This makes sense if we take into account the minimal consensus we claimed existed on the necessity of an instrumental element in the conditions for the legitimacy of international institutions. The least controversial, and most plausible, necessary instrumental condition for the legitimacy of these institutions seems to be that they uphold basic human rights, i.e. the rights that there is the least disagreement over, and that are the least susceptible to charges of parochialism. Now, it is notoriously difficult to ground even the most basic of human rights satisfactorily, but their plausibility does seem to depend on some sort of generally shared assumption about the equal worth of human beings as human beings and the treatment this implies towards them.

It is clearly not the case that the use of democratic procedures guarantees that basic human rights will be upheld. Indeed, a well-known difficulty with accounts that claim that democratic procedures are a necessary and sufficient condition for legitimacy is that democratic procedures can result in outcomes that clearly and systematically violate basic human rights, leading to the thought that a state which produces such outcomes, even if through democratic procedures, cannot be legitimate.

It also seems plausible, however, to argue that democratic procedures have a better chance of upholding basic human rights than any other feasible political procedures.23 Second, one might further (and differently) argue that a belief in the equal worth of human beings implies that they should be able to participate equally in the business of governing themselves and, once again, democratic procedures seem to be the types of procedures which, if other conditions hold, can secure this. Neither of these arguments is uncontroversial, and we do not mean to suggest otherwise. They are, however, prominent, and they can help explain why a commitment to the upholding of human rights as being a necessary part of any standard of legitimacy can lead to a further commitment to democratic procedures as also being a necessary part of a standard of legitimacy.

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