Another Voluntarism

John Rawls’s presentation of his famous principle of legitimacy raises a number of exegetical and philosophical questions which his texts leave unresolved. The key to their solution lies in a claim Rawls makes about the character of political power. Rawls uses language familiar from social contract theory to describe that power, saying that it is the power of the public as a corporate body. This chapter considers but ultimately rejects the suggestion that Rawls’s treatment of legitimacy is Lockean. Rather, Rawls follows Kant in thinking that talk of a contractual incorporation is best understood as a way of expressing fundamental moral claims about the object of a constitution, about citizens’ standing, and about legislators’ duties. These are the claims that do the real work in Rawls’s account of legitimacy. To show this, the chapter lays out Kant’s conception of the social contract and argues that we can draw on that conception to understand Rawls’s account of political legitimacy. It then spells out the philosophical pay-offs of the reading offered here by showing how it solves some textual puzzles and how Rawls’s account differs from others that have recently been defended in political philosophy. The chapter concludes by mentioning some lingering questions about Rawlsian legitimacy.

The Future of State Sovereignty

This chapter is the first of four to focus on the legitimacy of the state. It starts with a question: Do increasing challenges to state sovereignty require legal theory to be re-thought? The chapter observes that, despite these increasing challenges, state sovereignty persists, since no alternative is available. It then argues that the success of the assortment of international organizations that challenge state sovereignty depends on their ability to attract loyalty, which depends, in turn, on their ability to recognize the truth of pluralism and respond to diverse interests, preferences, and traditions. It also suggests that perhaps such value-pluralism is best protected by sovereign states.

Who’s Afraid of Suprastate Constitutional Theory?

This chapter is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. More specifically, it responds to the objection that suprastate constitutionalism is idealistic due to the improbability of a demos beyond the state. Two points are made: first, the objection relies on a normative understanding of the idea of a demos that is itself potentially idealistic and, second, the objection assumes that idealism in normative theory is problematic, which might be doubted. The chapter concludes that we should be more sanguine about the contribution that constitutionalism in all its forms can make to addressing the challenges of legitimacy faced by contemporary suprastate law and governance.

Conceptions of Public Reason in the Supranational Sphere and Legitimacy beyond Borders

This chapter contends that legitimacy beyond the state should be understood, given the democratic deficit of supranational authorities, as a subject-conferred attribute of specific norms that generates no more than a duty to respect those norms. It recommends a public reason conception of legitimacy. This conception is not John Rawls’s view of public reason in the supranational sphere, but is Supranational Public Reason sensu stricto, which is found in the legitimating strategies of supranational bodies such as the European Court of Human Rights. Overall, the chapter criticizes Rawls’s account of public reason as a conception of legitimacy in the supranational sphere.

The Legitimacy of Whom?

This chapter argues that a complete account of a state’s legitimacy must evaluate not only its powers and its institutions, but also its officials. It gives reasons for separate evaluation of officials before suggesting that, to be legitimate, officials who claim a state’s authority must seek to improve the legitimacy of both the state’s powers and institutions. In exercising the state’s authority, officials owe relational duties towards those subject to the state’s powers and institutions. Finally, the chapter emphasizes that an assessment of the ‘micro-legitimacy’ of officials may be integrated with a pluralist dimension of ‘macro-legitimacy’, in which the state is one among many claimants of authority, one among many principals with official agents.

The Control Theory of Legitimacy

This chapter addresses the problem of legitimacy (that of morally justifying the way a state exercises monopoly power over its adult, able-minded, more or less permanently resident members) that every state poses and looks at different grounds on which a state might be thought to be legitimate. It considers benefit-based, merit-based, and will-based theories of state legitimacy. It suggests that theories of the third type, according to which the will of the state must not be dominating, are best from a republican perspective. It then considers three will-based approaches. Of these, it argues, only the ‘control’ approach ensures that individuals are not dominated.

Legitimate Political Authority and Expertise

Can legitimate political authority be based on expertise? Stephen Darwall has argued that it cannot. According to Darwall, legitimate political authority requires a mode of justification involving mutual accountability, which is exemplified by public reason. Darwall has objected to the influential Razian account of legitimate political authority that it conflates expertise and legitimate political authority. In a first move, this chapter defends Raz’s account against Darwall’s objection and argues that expertise can be a ground of legitimate political authority. It also argues that mutual accountability remains important for political legitimacy, however. That is because political decisions often concern complex issues on which sufficiently robust expertise is not available.

Perfectionist Liberalism and the Legitimacy of International Law

This chapter examines Joseph Raz’s perfectionist liberalism, an alternative to liberal neutrality. Perfectionists, unlike neutralists, have done little to extend their view beyond the state to international law and institutions. It considers whether perfectionist liberalism can be a theory of legitimacy in this sphere. The discussion focuses on the neutralist worry that the moral pluralism and the conception of autonomy that are aspects of Raz’s view fail to respect moral diversity and the equal standing of citizens across state boundaries. In particular, it looks at Martha Nussbaum’s claim that Raz’s liberalism is less stable than John Rawls’s because it is incompatible with the moral views of many people. The chapter argues that this critique is not persuasive in the state context and, even if it were compelling, it would be less so in the suprastate context, due to well-known attributes of international institutions, including their limited jurisdiction and their relatively limited capacity to enforce norms and decisions.

The Rule of Law and State Legitimacy

This chapter, on the rule of law and state legitimacy, begins by pointing out that how the rule of law contributes to state legitimacy turns on how the rule of law is understood. It recommends looking first to the point of the rule of law, which is, it suggests, to temper the arbitrary exercise of power. The chapter suggests that such tempering is something without which a state cannot be legitimate. It then insists that the rule of law does not depend simply on the formal rules and procedures of states, but also on the actual and the perceived functioning of those rules and procedures, on tempering both state and non-state arbitrariness, and on being effective.

Legitimacy Criticisms of International Courts

This chapter concludes the book as a whole and attempts to bring some order to debates about the legitimacy of international courts. It draws on Raz’s conception of authority and on cosmopolitan theory. It argues that this approach can reduce apparent confusion about the legitimacy of international courts by explaining the significance of considerations such as states’ consent, states’ compliance, and the legality of courts’ decisions. International courts not only adjudicate disputes, but also engage in the interpretation and specification of laws, and—some would argue—even law-making. Thus, the issue is not only the judicial legitimacy of these courts, but also their legitimate role in specifying treaties and shaping other actors’ expectations of others’ future actions more broadly. Raz’s service conception helps to explain why several legitimacy conceptions matter for normative legitimacy, including legality, the (limited) significance of state consent, and why actual compliance often matters if international courts are to provide impartial yet responsive judgments and specifications whilst accountable and responsive.