Reciprocal legitimation: Reframing the problem of international legitimacy

Politics, Philosophy and Economics

Volumn 10, Issue 1, 2011, Pages 5-19

  Buchanan, Allen ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

extended constitution; international institutions; legitimacy; reciprocal legitimation

Indexed keywords

EID: 79951980583     PISSN: 1470594X     EISSN: 17413060     Source Type: Journal    
DOI: 10.1177/1470594X09351958     Document Type: Article

References (23)

1. Allen Buchanan, 'The Legitimacy of International Law', The Philosophy of International Law, edited by Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010).
2. Thomas Christiano, 'Authority', in Stanford Encyclopedia of Philosophy (Stanford, CA: Stanford University, 2006), URL (consulted March 2010): http://www.plato.stanford.edu/entries/ authority.
3. One difficulty of providing such an account is that it is hard to think of any duty which completely excludes considerations of any kind, including considerations of self-interest. The standard example of an exclusionary reason is that one has promised something. But the fact that one has promised something (under even the best conditions for generating special duties by promising) does not imply that reasons of interest are literally excluded from consideration. If the cost to oneself of keeping the promise is great enough, and the promise is trivial enough, then a consideration of one's own interest is not excluded.
4. This is not to say in all contexts that acknowledging an entity's legitimacy is incompatible with saying that it is permissible to try to destroy it. In cases of economic competition, for example, one might say that a rival firm is legitimate (a legitimate business), meaning only that it is not shady or does not operate illegally, and yet one might try to destroy it by outcompeting it in the market. In the case of political entities, however, in most cases acknowledgement of legitimacy implies recognition of standing in the sense described above. Legitimate political institutions are presumptively not to be destroyed, though it may be permissible to replace or dismantle them if appropriate procedures are followed. I am grateful to Jerry Gaus for pressing me to make this point clearer.
5. John Tasioulas has adapted Joseph Raz's normal justification criterion (NJC) to provide an alternative conception of legitimacy which he believes works for both states and international Buchanan 17 institutions.
6. John Tasioulas, 'The Legitimacy of International Law', in The Philosophy of International Law,edited by Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010).
7. An agent or entity A satisfies the NJC relative to an individual B if and only if B does better, according to the reasons that apply to her (independently of A's directives), by intending to act in accordance with A's directives. On Raz's view (and Tasioulas's), an institution satisfies the NJC when its rules constitute content-independent, exclusionary reasons for acting for those to whom it addresses them, so this conception of legitimacy, like mine, features a respondent aspect. However, the Razian view recognizes only one kind of response: the acknowledgement of authoritativeness on the part of rule addressees. For example, the Razian view does not acknowledge that there are contexts in which what is at issue is whether the institution is entitled to noninterference by parties other than rule addressees, a question that is of central importance for individuals and non-state groups in the case of international institutions, since the latter typically address their rules only to states. The Razian view is also silent on other practical stances that outsiders, as opposed to rule addressees, associate with legitimacy assessments.
8. It would not be plausible for Raz or Tasioulas to reply that their notion of authoritativeness subsumes the issue of practical stances for non-addressees. It may be true that one consideration a citizen should take into account in determining what her practical stance toward theWTO ought to be is whether states ought to take that institution's rules as authoritative, but it is not the only consideration. Such an individual might reasonably conclude that the fact that states have ratified the WTO Treaty and not formally de-ratified it gives the agents of those states a contentindependent reason to comply with its rules, but that need not settle the issue of whether she ought to refrain from efforts to disrupt or even destroy the institution. This would most obviously be the case if her state was nondemocratic, but it might be so in other circumstances as well. The point is that a conception of legitimacy such as Raz's explicitly takes into account only the perspective of rule addressees and the perspectives of others cannot be reduced to that.
9. Bas van der Vossen and Thomas Christiano have pointed out that the Razian view has another, more serious drawback: it does not capture the fact that justification is a necessary condition of legitimacy. The NJC has to do only with the reasons of rule addressees, not with the adequacy of the institutional agents' reasons for acting. It is conceivable that one could have contentindependent, exclusionary reasons for complying with the rules an institution addresses to one, even if the institution was created and controlled by usurpers, who, for that reason, were not justified in exercising power. So, if justification is a necessary condition of legitimacy and being authoritative in the Razian sense does not guarantee justification, then the Razian conception of legitimacy is inadequate; at most, satisfaction of the NJC is a necessary, not a sufficient condition for legitimacy.
10. Bas van der Vossen, 'On Legitimacy and Authority: A Response to Krehoff',Res Publica 4 (2008): 299-302;
11. Thomas Christiano, 'The Authority of Democracy', Journal of Political Philosophy 3 (2004): 278-9.
12. To meet this objection, Tasioulas makes a desperate move, arguing (or asserting) that among 'the reasons that apply to us' considerations of justification have such great weight that it will never be true that one does best in acting in accordance with all the reasons that apply to oneself, if one takes as authoritative the rules of an institution that is not justified in exercising political power. In my judgment, this move is utterly unpersuasive. But for the sake of argument, let us not take exception to it. There is still a problem with the Razian analysis thus understood: it buries the justification condition, hiding it from sight, as it were. It appears to be much more analytically perspicacious to exhibit the justification condition along with authoritativeness, rather than subsuming it under authoritativeness (via a dubious claim about the preponderance of considerations of justification among the various 'reasons that apply to us').
13. Allen Buchanan and Robert O. Keohane, 'The Legitimacy of Global Governance Institutions', Ethics and International Affairs 4 (2006): 405-37.
14. Allen Buchanan and Russell Powell, 'Survey Article: Constitutional Democracy and the Rule of International Law: Are They Compatible?' Journal of Political Philosophy 3 (2008): 326-49. For another account of the benefits that participation in international institutions can provide for states
15. Robert O. Keohane, Stephen Macedo and Andrew Moravcsik, 'Democracy-Enhancing Multilateralism', International Organization 1 (2009): 1-31.
16. Judith Kelley, Ethnic Politics in Europe: The Power of Norms and Incentives (Princeton, NJ: Princeton University Press, 2006).
17. Whether such behavior would undermine not only the legitimacy of the US government, but also of the US state itself would depend upon the duration of the refusal to participate (its persistence through changes of government) and also, perhaps, whether the best explanation of the persistence of the refusal invoked features of the US constitutional order or what might be regarded as the character of the US state as a historical entity.
18. Here is it important to distinguish carefully between an institution being illegitimate and a particular action of that institution being illegitimate. An institution may perform actions whose wrongness undermines the legitimacy of those actions, without the legitimacy of the institution itself being called into question. But when there is a pattern of sufficiently egregious wrongful action, this can undermine the institution's claim to be a justified wielder of political power and hence can impugn its legitimacy.
19. David Estlund and others have argued that democracy has important epistemic virtues. It is important to understand, however, that the epistemic virtues of democratic institutions are chiefly relative to the good of the citizenry; in other words, democratic processes, including the right sort of deliberative procedures, can be distinctively valuable for producing and helping to ensure a utilization of information that is relevant to the pursuit of the good of the public. But the crucial thing to note here is that 'the public' means only the citizens of the democracy in question. The epistemic virtues of democratic institutions are much less impressive with regard to the good of foreigners. On this point
20. Kristen Hessler, 'Democratic Government and International Justice', The Monist 2 (2006): 259-73;
21. David Estlund, Democratic Authority (Princeton, NJ: Princeton University Press, 2007).
22. Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009.
23. Andy Clark, Supersizing the Mind: Embodiment, Action, and Cognitive Extension (Oxford: Oxford University Press, 2008).