legitimacy in international law and international relations

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Legitimacy in International Law and InternationalRelations

Daniel Bodansky

Over the past couple of decades, there has been an explosion of interest, bothamong international lawyers and international relations scholars, in the legitimacyof international institutions (IOs) – what Ian Clark (2005: 12) has described as a“veritable renaissance of international legitimacy talk.” Studies have:

� historically traced the changing conceptions of legitimacy in “internationalsociety” and “world society” (Clark 2005, 2007);

� theorized about the concept of legitimacy (Applbaum 2010; Buchanan 2010;Simmons 1999; Tasioulas 2010);

� advanced general normative conceptions of legitimacy (Buchanan 2003;Buchanan and Keohane 2006; Caney 2009);

� surveyed the legitimacy of different types of international institutions, includingglobal governance organizations (Koppell 2010), international financial insti-tutions (Porter 2001; Woods 2003, 2006); private governance systems (Cashore2002; Bernstein and Cashore 2007; Schaller 2007); and public–private partner-ships (Backstrand 2006); and

� examined the legitimacy of particular international institutions, including,among others, the World Trade Organization (WTO) (Howse 2000, 2001;Weiler 2000; Howse and Nicolaidis 2001; Esty 2002; Cass 2005; Picciotto2005; Conti 2010), the International Criminal Court (Danner 2003), the Secu-rity Council (Caron 1993; Sato 2001; Jodoin 2005; Voeten 2005; Hurd 2008),the treaty bodies of multilateral environmental agreements (Brunnee 2002),investor–state arbitral tribunals (Brower 2003, Franck 2005), the Global Report-ing Initiative (Beisheim and Dingwerth 2008), the World Commission onDams (Dingwerth 2005), and the International Organization for Standardiza-tion (ISO) (Clapp 1998; Raines 2003).

This recent burgeoning of interest in legitimacy represents a significant shift.Historically, neither international law (IL) nor international relations (IR) had paid

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much attention to the issue.1 International lawyers tended to focus on legality ratherthan legitimacy. And political scientists tended to focus on power and interests,rather than on normative factors such as legitimacy. The newfound concern aboutlegitimacy reflects the growing interest by international lawyers in interdisciplinarystudies and the greater openness of political scientists to constructivist perspectives.

Several substantive changes in international relations have contributed to thefocus on legitimacy.2 First, international governance is increasing both in depthand breadth. Second, international governance increasingly affects not only states,but also individuals and other non-state actors. Finally, international governance isincreasingly being exercised by private and public–private institutions, as well as byintergovernmental institutions. The focus on legitimacy is one of several responses tothese trends toward greater international governance; others include the streams ofwork on good governance (Woods 1999; Esty 2006), constitutionalism (Kumm 2004;Dunoff and Trachtman 2009; Klabbers, Peters, and Ulfstein, 2009), accountability(Grant and Keohane 2005; Koppell 2010), and global administrative law (Kingsbury,Krisch, and Stewart 2005).

The issue of international legitimacy raises many important questions:

� Conceptually, what do we mean by “legitimacy,” and what is its relation to otherconcepts such as legality, authority, obedience, power, self-interest, morality,and justice?

� Normatively, what standards should we use to assess the legitimacy of IOs?Are these legitimacy standards uniform, or do they vary depending on aninstitution’s issue area and on the type and extent of authority it exercises?

� Descriptively, what standards do different actors (government officials, interna-tional bureaucrats, civil society groups, and business) actually use in assessingthe legitimacy of international institutions? Are these factors complementary,or do they sometimes work at cross-purposes?

� Causally, what explains why institutions are accepted as legitimate, and whatare the effects of these beliefs? How much practical difference does legitimacymake – for example, for the effectiveness and stability of an institution?

This chapter reviews the IL and IR literatures on legitimacy over the last twodecades. To a significant degree, these literatures do not divide up neatly. Books onthe legitimacy of international governance contain contributions by both interna-tional lawyers and political scientists (for example, Coicaud and Heiskanen 2001;Wolfrum and Roben 2008; Meyer 2009). Some important contributions come fromother disciplines, such as philosophy (Buchanan 2003; Caney 2009; Tasioulas 2010)

1 An exception is Claude (1966).2 For a general analysis of the causal factors responsible for the increasing attention to legitimacy, see

Zurn (2004).

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or psychology (Tyler 2006), and others involve collaborations among different dis-ciplines (Buchanan and Keohane 2006). In many cases, the work of internationallawyers and political scientists on legitimacy is virtually indistinguishable. And,within each field, there is an enormous variety of approaches. Within political sci-ence, for example, Ian Clark’s historical books on the legitimacy of world society(2005) and world community (2007) bear little resemblance to the more analyticalwork of Robert Keohane (Grant and Keohane 2005; Buchanan and Keohane 2006).Similarly, within IL, Joseph Weiler’s “geological” approach (2004) is strikingly dif-ferent from the Fullerian approach of Jutta Brunnee and Stephen Toope (2010). Soit is possible to describe only broad tendencies, which gloss over the diversity withinboth fields.

To date, much of the work on international legitimacy has been of a theoreticalnature, clarifying the general concept of legitimacy (Steffek 2003; Meyer 2009;Applbaum 2010; Buchanan 2010; Tasioulas 2010) and elaborating conceptions oflegitimacy that are appropriate for international institutions, given their differencesfrom domestic governments (see, e.g., Bernstein 2005; Bodansky 1999; Buchanan2003; Buchanan and Keohane 2006; Esty 2006). These have generally sought tofind a middle ground between state consent on the one hand and democraticdecision making on the other, and have focused largely on procedural factors suchas transparency, participation, and neutrality.

By comparison, there has been surprisingly little empirical work by either interna-tional lawyers or political scientists to determine what standards of legitimacy actorsactually apply and how much difference these beliefs make in practice. Instead,most studies assume that normative standards of legitimacy, such as transparency,participation, and representativeness, are, in fact, widely shared; that actors use thesestandards to assess the legitimacy of international institutions; and that enhancingthese factors will help legitimize international institutions and make them moreeffective.3 Going forward, more empirical work is needed both on attitudes aboutlegitimacy and on their causes and effects.

Despite many areas of convergence between the IL and IR literatures on legiti-macy, important differences also exist. International relations scholars focus on thelegitimacy of international institutions rather than of international law. Althoughmany international lawyers share this institutional orientation, some have attemptedto develop a more specific theory of legal legitimacy, based on internal qualities ofthe legal system (for example, whether rules are clear, prospective, and public, andwhether they were adopted in conformity with the legal system’s secondary rulesabout norm creation), rather than on the political process by which the rules were

3 Koppell’s study (2010) of twenty-five global governance organizations is one of the few works thatexplores the divergence between what people believe about legitimacy and what standards are actuallyjustified as a matter of normative theory. Other empirically oriented studies include Beishem andDingwerth (2008), Breitmeier (2008), and Raines (2003).

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produced or their substantive outcomes. This concern with what Lon Fuller (1964)called “the internal morality of the law,” characteristic of international lawyers suchas Thomas Franck (1990) and Jutta Brunnee and Stephen Toope (2010), has no coun-terpart among political scientists, who have shown little interest in the legitimacy ofinternational law as such.

The study of legitimacy thus stands in contrast to many topics considered in thisvolume, where IL has been the consumer of theoretical approaches produced by IRscholars. In the case of legitimacy, political science is itself a consumer of theoriesproduced by other disciplines, such as sociology and psychology, and has yet todevelop its own theory of legitimacy. Instead, IL has been the more theoreticallyactive of the two disciplines, developing theories of legitimacy based on the conceptof “interactional law” (Brunnee and Toope 2010), constitutionalism (Kumm 2004;Klabbers et al. 2009), and global administrative law (Kingsbury et al. 2005; Esty2006).

i. the concept of legitimacy

In thinking about the problem of legitimacy, it is useful initially to distinguish (fol-lowing Rawls) the general concept of legitimacy from more particular conceptions oflegitimacy. Often, “legitimate” and “illegitimate” are used simply as terms of appro-bation and disapproval. For example, people might characterize nuclear power as“illegitimate,” meaning not within the bounds of acceptability, or an argument as“legitimate,” meaning logically valid. In both political science and IL, however,the concept of legitimacy is usually understood in a narrower way, as relating tothe justification and acceptance of political authority (Beetham 1991). A legitimateinstitution or leader has a right to exercise authority – it has a right to rule (orto use the more common expression, govern) – whereas an illegitimate one doesnot.4

A wide variety of factors might give an actor the right to govern: democraticaccountability, legality, religion, tradition, expertise, preservation of order, successin solving collective problems, respect for human rights, and so forth. These differentconceptions of legitimacy are all consistent with the general concept of legitimacy asthe right to rule.

If the concept of legitimacy is understood as the right to govern, this raises twoquestions: first, what does it means to “govern”? And second, what does it mean tohave a “right” to govern? The answer to the first question defines the domain to

4 Although most of the IL and IR literatures on legitimacy consider the legitimacy of particular interna-tional institutions, such as the Security Council (Caron 1993; Hurd 2008) or the WTO (Howse 2001),some apply the term more broadly to general political orders, such as the Westphalian state systemor the Congress of Vienna’s balance of power system (Clark 2005), or more narrowly to particularinternational rules. An example of the latter is Franck (1990), who focuses on the legitimacy of rulesrather than institutions.


which the concept of legitimacy is applicable. The answer to the second addressesthe nature of the claim being made in calling governance “legitimate.”

Obviously, the concept of legitimacy applies to institutions such as the WTO orthe United Nations (UN) Security Council. But does it apply to private governancearrangements such as the Marine Stewardship Council? To the exercise of “soft”power? To market-based institutions such as international emissions trading?

International relations scholars have devoted more attention than internationallawyers to the problem of defining the concept of governance (Bernstein 2010).Although definitions vary, the essence of governance involves making decisions fora collective – decisions that not merely affect others indirectly, but are directed atthem and are intended, in some way, to constrain their behavior. The decisions maybe general rules intended to guide behavior or very specific decisions related to aspecific case. But, in either case, they have a social (other-directed) quality, aimingto substitute the ruler’s judgment for that of its subjects. Components of governanceinclude applying and enforcing decisions as well as making them.

Governance can vary widely in its coerciveness. At one end of the spectrum, aninstitution may use “hard” power to enforce its rule. Although power and legitimacyrepresent different types of reasons for compliance, the exercise of power is itselflegitimate if the actor involved has a right to do so. Power and legitimacy can thuscomplement one another as bases of governance.5 At the other end of the spectrum,people may voluntarily accept and be guided by an institution as a result of its softpower. Although nonbinding regimes lack coercive power, they still could be said to“rule” to the extent that they intend their decisions to guide others. Indeed, beliefsabout legitimacy are arguably more crucial for institutions exercising soft ratherthan hard power, since an institution’s lack of coercive power means that it mustrely more on perceived legitimacy as a basis of influence. That said, the weaker aninstitution’s rule – the less it is able to compel obedience to its decisions – the lesslegitimacy concerns it raises (Esty 2006). The imposition of sanctions by the SecurityCouncil, for example, raises a greater issue of normative legitimacy than the MarineStewardship Council’s environmental standard for sustainable fishing.

A wide variety of actors exercise authority and hence raise an issue of legitimacy,including governments, IOs, expert groups, market actors, and civil society groups.Increasingly, IR scholarship has focused on private or public–private governanceregimes (Cashore 2002; Raines 2003; Dingwerth 2005; Backstrand 2006; Bernsteinand Cashore 2007; Schaller 2007; Hlavac 2008; Koppell 2010). Indeed, it appearsthat political scientists have focused more attention in recent years on the legit-imacy of private governance arrangements (such as the World Commission onDams, the Forest Stewardship Council, or the supply-chain authority of Wal-Mart)than on public (binding) regimes (such as the WTO, the Security Council, or the

5 Indeed, Reus-Smit (2007: 19) argues that, as a descriptive matter, power and legitimacy are mutuallysupportive: power helps create legitimacy and legitimacy reinforces power.

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International Criminal Court), which have been of greater interest to internationallawyers (Caron 1993; Howse 2001; Weiler 2001; Esty 2002; Danner 2003).

The concept of legitimacy can be understood by comparing it with two otherbases of influence: rational persuasion and power. Rational persuasion dependson convincing another based on the content of a decision. To the extent that aninstitution exercises influence through rational persuasion, then this does not raiseany issue of legitimacy. In contrast, when an institution governs, it substitutes itsjudgment for that of those subject to its authority. A decision influences behaviornot because it persuades its addressees that it is correct, but because it has anauthoritative source.

Consider, for example, two very different reasons why the U.S. Supreme Courtmight follow a decision of the International Court of Justice (ICJ): first, it might bepersuaded by the ICJ’s reasoning; second, it might view the ICJ as an authoritativesource. The second would raise a question about the ICJ’s legitimacy – does it havethe right to govern vis-a-vis the Supreme Court? – while the first would not. Ingeneral, judges attempt to persuade others that their decisions are correct by writinglegal opinions; but their decisions are authoritative even if they fail to convince. Insaying that a decision or norm is legitimate, one isn’t asserting that the decision iscorrect as a matter of substance – for example, because it is just or efficient. Instead,one is saying that the author of the decision has a right to rule. It is a legitimateauthority, whose decisions are entitled to respect.

Legitimacy also differs as a basis for compliance from compulsion. Like legitimacy,compulsion engenders compliance independent of whether those subject to an insti-tution’s authority agree with its decisions. But, in contrast to compulsion, legitimacyhas a normative quality. A legitimate institution has a right to rule; it is “morallyjustified in attempting to govern” (Buchanan 2010: 85), and this moral justificationhas normative consequences for those subject to the institution’s authority, and alsopossibly for third parties as well (for example, by creating a duty not to intervene).6

ii. distinguishing and conflating normative and descriptive

legitimacy

Why do we care about the legitimacy of international institutions? There are twopossible reasons. First, we might want to know whether an institution is worthy ofour support. Do we think that the ICJ, or the International Criminal Court, or theWorld Bank, or the Security Council has a right to rule in its given domain? Doesits exercise of authority have some moral or other normative justification? Second,

6 Philosophers disagree about the nature of those normative consequences. What Buchanan (2010: 82)calls the “dominant political view” holds that the legitimacy of an institution – its right to rule – entailsa corresponding moral duty to obey on the part of those subject to the institution’s authority (Raz 1986;Simmons 1999; Tasioulas 2010). But others conceptualize the right to rule as a power to create legalas opposed to moral duties (Applbaum 2010: 221).


we might care about legitimacy for instrumental reasons – because we think that alegitimate institution is more likely to be effective or stable. The first issue has to dowith an institution’s normative legitimacy – with whether it has a right to rule as amatter of moral theory. The second issue has to do with an institution’s descriptive orsociological legitimacy – with whether its authority is accepted by relevant audiences,such as states and civil society groups; whether it enjoys a reservoir of support thatmakes people willing to defer even to unpopular decisions and helps sustain theinstitution through difficult times.

The relationship between normative and descriptive legitimacy is complex. Onthe one hand, to some degree, descriptive legitimacy seems conceptually parasiticon normative legitimacy since beliefs about legitimacy are usually beliefs aboutwhether an institution, as a normative matter, has a right to rule.7 People justify,criticize, and persuade on the basis that an institution is actually legitimate (orillegitimate).8 On the other hand, some argue the other way around, that normativelegitimacy depends on descriptive legitimacy. It has an intrinsically social quality anddepends on people’s beliefs. An institution could not be normatively legitimate if noone thought it so. As Andrew Hurrell (2005: 29) argues, legitimacy is “quite literallymeaningless outside of a particular historical context and outside of a particular set oflinguistic conventions and justificatory structures. To paraphrase Ronald Dworkin,legitimacy has no DNA.”

But the normative and descriptive/sociological perspectives on legitimacy clearlydiffer.9 If we ask what makes an institution normatively legitimate, the answer willdepend on arguments about moral, political, and legal theory. In contrast, if weask what makes an institution descriptively legitimate, the answer will depend onempirical and explanatory arguments about what people believe and why. Normativelegitimacy depends on whether an institution objectively has a right to rule – whetherits claim is in some sense true. It focuses on qualities of the ruler that morally justifyits authority – for example, its democratic pedigree, transparency, or expertise. Incontrast, descriptive legitimacy concerns whether actors subjectively believe that aninstitution has a right to rule. It focuses on the attitudes of the ruled, rather thanon the qualities of the ruler, and thus reflects “not the truth of the philosopherbut the belief of the people” (Clark 2005: 18, quoting T. Schabert). An institutionis descriptively legitimate when it is socially sanctioned (Reus-Smit 2007: 158) and

7 According to Steffek (2003: 263), both Weber and Habermas viewed legitimacy as “the conceptualplace where facts and norms merge, where the de facto validity (Geltung) of a social order springsfrom a shared conviction about the normative validity of values (Gultigkeit).”

8 Some writers sever this conceptual link between normative and descriptive legitimacy by includingwithin the concept of descriptive legitimacy acceptance of an institution’s authority for affectualreasons or because people simply take the institution for granted (Suchman 1995).

9 “Legitimacy” is one of the few words that refer both to beliefs and to the thing about which beliefs areheld, and a considerable amount of confusion might be avoided if different terms were used to referto normative and descriptive legitimacy.

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when people tend to follow its decisions not because of self-interest or compulsion,but because they accept the institution’s right to rule (Hurd 1999).

Which perspective on legitimacy do international lawyers and political scientiststake? Although the answer is not always clear, it appears that, for most internationallawyers and political scientists, legitimacy is of interest primarily as a basis of com-pliance and effectiveness. Both disciplines see legitimacy as particularly importantat the international level because of the lack of institutions that can compel com-pliance with international norms. For example, Thomas Franck (1990) begins hisseminal book, The Power of Legitimacy Among Nations, by framing the issue in termsof compliance:

In the international system, rules usually are not enforced yet they are mostly obeyed.Lacking support from a coercive power comparable to that which provides backingfor the laws of a nation, the rules of the international community nevertheless elicitmuch compliance on the part of sovereign states. Why do powerful nations obeypowerless rules? That is the subject of this excursion into power: more precisely,the power which rules exert on states, both the weak and, more remarkably, thestrong. (Thomas Franck 1990: 3)

Similarly, Ian Hurd’s article, “Legitimacy and Authority in International Politics”(1999: 379–80) – one of the first international relations pieces on legitimacy – begins:

What motivates states to follow international norms, rules, and commitments? Allsocial systems must confront what we might call the problem of social control – thatis, how to get actors to comply with society’s rules – but the problem is particularlyacute for international relations, because the international social system does notpossess an overarching center of political power to enforce rules . . . [T]he idea thatstates’ compliance with international rules is a function of the legitimacy of therules or of their source gets less attention. . . . In this article, I address those whowould ignore . . . the workings of legitimacy in international relations. . . .

The common interest of both international lawyers and IR scholars in legitimacyas a basis of compliance suggests that both disciplines are concerned primarily withdescriptive/sociological legitimacy10 – with whether people think an institution orrule is legitimate – since that is what influences people’s behavior. The same is trueof other perceived benefits of legitimacy, such as effectiveness and compliance: theyare a function of an institution’s descriptive rather than normative legitimacy. Theydepend on whether an institution is perceived as legitimate, rather than on whetherit is legitimate as a matter of normative theory.

Some writers make their focus on descriptive legitimacy explicit. Ian Hurd (1999:381), for example, states: “I am interested strictly in the subjective feeling by a partic-ular actor or set of actors that some rule is legitimate,” not the rule’s “moral worth”

10 Exceptions include Buchanan and Keohane (2006) and Kumm (2004), who have an explicitly nor-mative orientation.


or “its justice in the eyes of an outside observer.” Many writers, however, neverstate explicitly that they are interested in descriptive legitimacy, so one must inferit from their work. This is true, for example, of Thomas Franck (1990), who doesnot distinguish in his book between normative and descriptive legitimacy. Similarly,Andrew Hurrell (2005) develops a very useful typology identifying five dimensions oflegitimacy – process, substantive values, expertise, effectiveness, and deliberation –but he does not state explicitly whether these are dimensions of normative or descrip-tive legitimacy.

The failure to specify whether they are addressing normative or descriptive legit-imacy reflects the fact that both international lawyers and IR scholars tend to thinkthat the two go together in practice. Although few say so explicitly, most seem toassume that the normative legitimacy of an institution is a good indicator of itssociological legitimacy; that if an institution is normatively legitimate, it will beaccepted as legitimate (see, e.g., Zurn 2004; Buchanan and Keohane 2006: 436).For this reason, neither discipline has distinguished much between the two perspec-tives on legitimacy or has made a serious effort to study legitimacy empirically –for example, through public opinion surveys about what people think would makean international institution legitimate or illegitimate. Instead, both use a method-ology that essentially conflates normative and descriptive legitimacy. Initially, theymake some simple assumptions about what makes an institution normatively legit-imate – transparency, for example, or public participation or democratic decisionmaking. Then, they assume that these are the criteria that people in fact use inassessing the legitimacy of an institution – that is, these normative criteria are thetest of descriptive legitimacy. Finally, they examine whether some internationalinstitution – say, the Security Council or the WTO or the Forest Stewardship Coun-cil – meets these standards and, on that basis, decide whether the institution islegitimate.

Consider, for example, Alison Danner’s article (2003) on the legitimacy of theInternational Criminal Court prosecutor. Danner states that “good process . . . willenhance the legitimacy of the Prosecutor’s exercise of discretion” (552) and that,“by contributing to the impartiality and consistency of [the Prosecutor’s] decision-making, [guidelines for prosecutorial decisions] will enhance its legitimacy” (541).But, like most writers about legitimacy, she does not provide empirical support forthese propositions. Instead, she simply “assumes that, over time, external perceptionsof [the Prosecutor’s] legitimacy will mirror the Prosecutor’s actual practices” (536).On this approach, descriptive legitimacy tracks normative legitimacy and need notbe studied separately.

iii. conceptions of normative legitimacy

When the issue of international legitimacy emerged in the 1990s, the initial instinctof most political scientists was to apply the same standard of legitimacy – that is,

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democracy – to international institutions as to domestic governments. This led to fre-quent criticisms of the “democratic deficit” in international governance (Dahl 1999).

Over the past decade, considerable work has been done by both internationallawyers and political scientists to articulate less demanding normative standards thatmight be appropriate for international governance. Part of the motivation for thisintellectual move was pragmatic. If international legitimacy requires internationaldemocracy, then it is unachievable according to many writers, given the lack of aglobal demos – a community that is the precondition for democracy.11 In the sphereof nonideal moral theory, we must take this institutional constraint into account.But the move away from democracy also has a normative justification – namely, thatinternational institutions lack the comprehensive authority of domestic governmentsand therefore do not require as demanding a normative justification (Steffek 2003).Their functions are more akin to those of an administrative agency – hence the recentfocus, particularly by international lawyers, on standards drawn from administrativelaw (Esty 2006) and on the development of a theory of global administrative law(Kingsbury et al. 2005).

Although democratic legitimacy seems too utopian to serve as a useful standard,state consent seems too apologetic. State consent was, of course, the traditionalbasis of international legitimacy: institutions could trace their legitimacy back to thetreaties that created them. But most international lawyers and IR scholars now rejectstate consent as a sufficient basis of normative legitimacy (see, e.g., Bodansky 1999;Buchanan and Keohane 2006: 412–14; Weiler 2004; Zurn 2004). Problems with stateconsent as a basis of legitimacy include the fact that many states are undemocraticand therefore lack legitimacy themselves, and that state consent is usually givenby the executive branch, which lacks legitimate authority to create rules that bindprivate actors.

In the middle space between global democracy on the one hand and the statesystem on the other, authors have advanced a wide array of procedural and substantivefactors that arguably contribute to normative legitimacy. Political scientists typicallyclassify these factors in terms of whether they contribute to input- or output-basedlegitimacy, to use the terminology originated by Fritz Scharpf (1997, 1999). Input-based legitimacy derives from the process by which decisions are made, includingfactors such as transparency, participation, and representation. Does a decision resultfrom a democratic process, for example? Was there sufficient participation by civilsociety? Did it involve adequate deliberation? In contrast, output-based legitimacyderives from the results of governance. Does a regime solve problems effectively?Does it reach equitable outcomes? Is it stable? Does it respect human rights?

Perhaps because they are ostensibly concerned with descriptive rather than nor-mative legitimacy, few international lawyers or political scientists delve deeply into

11 But see Moravcsik (2004: 27), who argues that IOs are not significantly undemocratic when assessedagainst the “real world practices of existing governments.”


moral or legal theory in discussing the issue of legitimacy. Habermas’ theory ofdiscursive legitimation is perhaps the most prominent input-based normative the-ory (Steffek 2003), whereas Raz’s “service conception of authority” (1986) sets forththe basic logical structure of instrumental, output-based accounts of normativelegitimacy.12

Instead of focusing on these general theories, political scientists and internationallawyers tend to take a more ad hoc approach to normative legitimacy. For example,Allen Buchanan and Robert Keohane (2006) put forward what they call a “complexstandard of legitimacy,” which combines a wide variety of factors, including substan-tive (output-based) elements such as minimal moral acceptability and comparativebenefit, procedural (input-based) elements such as transparency and institutionalintegrity (i.e., conformity with an institution’s own procedures), as well as a varietyof factors that are more difficult to classify, such as channels of accountability to civilsociety, ongoing consent by democratic states, and various “epistemic virtues.”

A more general organizing principle for discussions of normative legitimacy isaccountability (Grant and Keohane 2005). Accountability is a broad concept thatcaptures much of what makes democracy normatively attractive, but appears moreachievable internationally (Risse 2006). Democratic elections provide one type ofaccountability, but so can transparency, liability mechanisms, procedural rules,third-party review, and so forth.

Many international lawyers approach normative legitimacy in much the same wayas do political scientists, considering a variety of procedural and substantive factors(e.g., Bodansky 1999, 2007). But some have drawn on specifically legal constructs,such as administrative or constitutional law, in developing a more general theory ofinternational legitimacy. Administrative law combines both input- and output-basedelements. Input-based legitimacy is provided by procedural requirements such asnotice and comment, reason-giving, and review, whereas output-based legitimacyis provided by technical expertise (Esty 2006). International lawyers have similarlyargued that constitutionalism can provide a basis for input- and output-based legiti-macy: input-based legitimacy by delineating the procedures for how authority maybe exercised and output-based legitimacy by imposing substantive limits on what aninstitution may do (Kumm 2004).

Finally, some international lawyers have sought to develop a theory of whatmight be called legal or rule legitimacy, which focuses on features of legal rulesand the international legal system more generally. Thomas Franck’s seminal work(1990) on “the power of legitimacy in international law” argued that the legitimacyof international law rests on four properties of legal rules: determinacy (clarityof content), symbolic validation (including ritual and pedigree), consistency, andadherence (conformity with the legal system’s secondary rules about norm creation).

12 According to the service conception of authority, authority is justified when “we will do better byfollowing an authority than by working out what to do on our own” (Hershovitz 2003: 206).

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Although his theory is ostensibly about international law’s descriptive legitimacy,his discussion of these factors suggests that most also have a normative character.Similarly, Jutta Brunnee and Stephen Toope’s book, Legitimacy and Legality inInternational Law (2010), develops a theory of legal legitimacy that draws on whatLon Fuller (1964) called the “internal morality of the law,” including features oflegal rules such as generality, public promulgation, prospectivity, intelligibility,consistency, stability, and congruence with official action.

Much of the work thus far on legitimacy seems to assume a single general nor-mative theory of legitimacy. But, as Monica Hlavac (2008: 210) observes, institutionsvary in their “capacities and functions, and as they do what legitimacy demandsof them may change too.” (In a similar vein, see Bodansky 2008.) Going forward,political scientists and international lawyers may therefore need to take a more dif-ferentiated, contextual approach in studying normative legitimacy, which focuseson factors such as:

� The kind of authority an institution is exercising. For example, legislative insti-tutions would seem to require a different kind of justification – a different basisof normative legitimacy – than judicial institutions. Political scientists havetended to assume a legislative model for international law, and have accord-ingly seen democracy as the touchstone of legitimacy. In contrast, internationallawyers have seen international law more in administrative law terms and haveattempted to analyze the legitimacy of international law using an administrativelaw model (see, e.g., Kingsbury et al. 2005; Esty 2006; Lindseth 2010).

� The issue area or domain. For example, in more technical arenas, such asinternational environmental law or international health, expertise may providea basis of normative legitimacy. In contrast, in less technical areas, norma-tive legitimacy may depend more on public participation, transparency andaccountability.

� How much authority an institution is exercising. As noted earlier, soft powerrequires less justification than does hard power. Daniel Esty (2006: 1509) devel-ops a two-dimensional model in which legitimacy concerns are a function ofthe degree to which international governance is autonomous and binding.

iv. the empirical study of descriptive legitimacy

Unlike the study of normative legitimacy, which involves issues of morality andpolitical theory, descriptive legitimacy raises primarily empirical questions:

� What standards of legitimacy do actors actually use in assessing the legitimacyof international institutions?

� To what degree are international institutions, in fact, accepted as legitimate?� What are the causal consequences of an institution’s perceived legitimacy (or

illegitimacy)? Political scientists and international lawyers generally assume that


an organization perceived to be legitimate will have higher levels of complianceand be more stable (see, e.g., Bodansky 1999; Hurd 2008: 202). But is thisempirically true? Does a belief in legitimacy cause greater compliance? Greatereffectiveness? More stability? Conversely, to what degree do perceptions ofillegitimacy undermine a regime’s effectiveness and/or stability? How importantare beliefs about legitimacy in determining behavior? How do they compare,as a causal factor, with other factors, such as power and self-interest?

� To what extent is “legitimacy talk” sincere and to what extent is it merely a“strategic move in a political game” (Hurrell 2005: 16)?13 How important is itsrole in supporting or undermining an institution’s authority? Are weak powersable to use legitimacy arguments as a means to “strengthen the legal and moralconstraints” on stronger states (Hurrell 2005: 16)?

One potential problem with the concept of descriptive legitimacy is circularity.If descriptive legitimacy is defined in terms of a propensity to comply with rules,then compliance is part of the meaning of legitimacy, rather than something thatmight be caused by it.14 In studying descriptive legitimacy, we need to be carefulto specify indicators of legitimacy that can be measured in some objective way,independent of compliance. We can then take this measure of legitimacy eitheras the dependent variable, to explore what factors might cause an institution to beaccepted as legitimate (for example, transparency, participation rules, accountabilitymechanisms, and so forth), or as the independent variable in attempting to explainbehavioral compliance or problem-solving effectiveness.

As noted earlier, most writers assume that an institution’s descriptive legitimacyis at least to some degree a function of its normative legitimacy. So their theoriesof descriptive legitimacy are partly parasitic on their assumptions about normativelegitimacy. But whether the normative attractiveness of an institution makes it morelikely to be accepted as legitimate is an empirical question that cannot be answered apriori. The fact that a policy is normatively justified – say a carbon tax or a single-payerhealth care system – does not necessarily mean that it will be popularly accepted,and the same is true of institutions.

Some writers posit that various non-normative factors are also important in causingan institution or legal rule to be accepted. Thomas Franck (1990), for example,argues that the legitimacy of international law depends in part on symbolic validationthrough ritual or pedigree. Similarly, Jutta Brunnee and Stephen Toope (2010) arguethat legal legitimacy depends not only on the “internal morality of the law,” but alsoon the degree to which legal rules are congruent with shared social understandings

13 For example, in his study of UN Security Council reform, Ian Hurd (2008: 212–13) concludes that“legitimacy talk” is insincere, “covering up the political interests of states.”

14 For example, Andrew Hurrell (2005: 16) says that “legitimacy . . . refers to a particular kind of rule-following, or obedience, distinguishable from purely self-interested or instrumental behavior on theone hand, and from straightforward imposed or coercive rule on the other.”

334 Daniel Bodansky

and are upheld by official practice. Other non-normative factors that might berelevant to an institution’s acceptance as legitimate include the length of time theinstitution has existed (since trust often takes time to develop), the size of the groupover which the institution exercises authority, and the degree to which the grouphas a shared identity and common values (Steffek 2003: 256; Esty 2006: 1504–05).

All of these, however, are only theories; they have little if any empirical support.How might we go about empirically studying the descriptive legitimacy of an insti-tution and the factors that actually contribute to (or detract from) the institution’sperceived legitimacy? Initially, we would need to identify the relevant communityof actors. Then, we would need some way of ascertaining their beliefs about whetherthe institution has a right to rule, why or why not, and what the effects of thosebeliefs are.

International institutions have multiple audiences and constituencies and affectmany different actors. So a wide variety of actors are potentially relevant in determin-ing an institution’s descriptive legitimacy. Many studies of legitimacy focus on theattitudes of states. Ian Hurd (2008), for example, focuses on states in examining theimportance of membership and deliberation as legitimating factors for the SecurityCouncil. The state, however, is an abstraction that doesn’t have attitudes or beliefsof its own. So, in assessing the legitimacy of international institutions for states, wemust examine the attitudes and beliefs of government officials. In countries with aseparation of powers, an international institution may be accepted as legitimate byone branch of government but not another. For example, since foreign relations islargely subject to executive control, the transfer of authority from national govern-ments to international institutions increases the authority of the executive relativeto the legislative branch, and this is likely to raise legitimacy concerns, primarilyamong legislators (Zurn 2004: 264).

As international institutions increasingly address what goes on within countries(rather than simply the interactions between states) and are directed ultimately atprivate conduct, then they raise concerns primarily for individuals (and, by extension,nongovernmental groups) and business – actors that traditionally have had little if anyability to participate or control international institutions, and to whom internationalinstitutions have not been accountable. Not surprisingly, many if not most of thecritiques of international institutions as illegitimate come from what Michael Zurn(2004: 283) calls the “societal sphere” rather than from government elites, andassessments of descriptive legitimacy focus on the public’s beliefs.

Once the relevant actors are determined, how might we go about determiningtheir views about legitimacy? By necessity, any methodology will be imperfect andoften it may be impracticable to get the necessary evidence. As Ian Hurd (2008: 213)notes in his study of the legitimacy of the Security Council, “in practice the evidenceneeded to confirm or falsify [my hypotheses about legitimacy] is unobtainable.” Twopossible methods of determining beliefs about legitimacy are opinion surveys anddiscourse analysis.


Political scientists and psychologists have used opinion surveys and interview datato study the legitimacy of domestic institutions, despite the formidable methodolog-ical challenges involved (Weatherford 1992). For example, in a pioneering study,the psychologist Tom Tyler (1990) used interview data to explore why the losing sidein litigation often accepted the result. Political scientists have similarly used surveydata to study the legitimacy of the South African Constitutional Court (Gibson andCaldeira 2003), the European Court of Justice (Gibson and Caldeira 1995), nationalhigh courts (Gibson, Caldeira, and Baird 1998), and the U.S. Supreme Court andCongress (Gibson, Caldeira, and Spence 2005). To avoid the circularity of measuringlegitimacy in terms of compliance and then relying on legitimacy as an explanationof compliance, these political science studies devised separate empirical measuresof general support for an institution, knowledge about its particular features (e.g., itsprocedures), and acceptance of the institution’s decisions.

Only a few studies have attempted to determine attitudes about the legitimacy ofinternational institutions through surveys (Raines 2003; Koppell 2010). Instead, moststudies infer attitudes about legitimacy from the arguments that actors make – forexample, the reasons states give for compliance or noncompliance with legal rules(Hurd 1999: 391), the criticisms by civil society groups of international institutionsas illegitimate, and the responses by international institutions in trying to legiti-mate their authority. For example, in response to criticisms relating to participation,accountability, and transparency, the WTO Appellate Body has allowed amicusbriefs, the World Bank has established the Inspection Panel, and international orga-nizations generally have sought to provide greater information about their activities.Similarly, in an effort to enhance the legitimacy of the Global Environment Facil-ity (GEF), states adopted a new governing instrument in 1994, giving developingcountries greater voting shares and making the GEF more independent from theWorld Bank. Of course, these attempts to enhance the legitimacy of internationalinstitutions may rely on mistaken assumptions about what people (or states) wantand may therefore be unsuccessful. So we also need to consider the responses tothese reform efforts by affected groups, which provide more direct – and presumablymore reliable – evidence of their attitudes about legitimacy.

A complicating factor in empirical studies of legitimacy is the possibility thatdifferent actors may have different conceptions of legitimacy, leading an institutionto be accepted as legitimate by some actors and not by others. Some may seelegitimacy as dependent primarily on procedural justice, for example, and others onspeed and efficiency. The Security Council may be accepted as legitimate by the“Perm-5” (the United States, Russia, China, the United Kingdom and France) butnot by other states, which have lesser rights of participation and decision making.Similarly, international financial institutions may be accepted as legitimate by donorcountries, but not by the developing world. Or increased participation by civilsociety groups may increase an institution’s legitimacy in the eyes of those groups,but decrease its legitimacy for governments. Standards of legitimacy may also vary

336 Daniel Bodansky

depending on individuals’ political or cultural views – for example, whether they arehierarchic or egalitarian in orientation, and individualist or communitarian (Kahanand Braman 2006).

In his discussion of the legitimacy of WTO dispute settlement, Joseph Weiler(2001) distinguishes between insiders, who view diplomatic approaches to disputesettlement as legitimate, and outsiders, who want WTO dispute settlement to bemore judicial. Similarly, as Jonathan Koppel (2010) argues, factors that enhancean institution’s legitimacy – such as neutrality – often make it more difficult foran institution to serve the needs of important states, which may in turn reduce theinstitution’s authority. Along the same lines, Julia Black (2008: 29–30) argues thatpolycentric regulatory regimes must appeal to different audiences, with differentviews about legitimacy. Scientists focus on expertise, for example, while the widersociety appraises legitimacy in terms of representativeness. International institutionsthus construct multiple narratives, according to Black, aimed at different legitimacycommunities.

Even the views of a single actor about legitimacy may not necessarily be consistent.The standards that an actor applies in assessing the legitimacy of an internationalinstitution may conflict with one another. To take a simple example, proceduralconstraints that play an important role in establishing an institution’s input-basedlegitimacy may make it harder for the institution to make decisions and therebyundermine its output-based legitimacy.

Ultimately, descriptive legitimacy is important because it is believed to enhance aninstitution’s effectiveness and stability. If actors perceive an institution as legitimate,they are more likely to accept its decisions and comply with them. That, at least, isthe theory. But, as with other assumptions about descriptive legitimacy, it needs to bestudied empirically. One of the apparently few studies to assess whether legitimatingfactors such as transparency and participation are associated with greater success foran institution is Beishem and Dingwerth (2008 More empirical works along theselines are needed.

v. conclusion

During the last twenty years, interest in international legitimacy has blossomed.Surveying the period as a whole, three general trends stand out:

� First, an increasing interest in the views of non-state actors, reflecting thegrowing impact of international institutions on civil society and business.

� Second, an increasing focus on the legitimacy of private and public–privategovernance, rather than only intergovernmental organizations.

� Third, an intellectual move away from democracy and toward less demandingstandards of legitimacy such as accountability, deliberation, or administrativeprocedure.


Despite much work by both international lawyers and political scientists, how-ever, our understanding of the subject is still in its infancy. Writers have identifiedmany factors that arguably contribute to an institution’s normative legitimacy – trans-parency, public participation, deliberation, and so forth. But it is unclear whether,even together, these factors provide a sufficient basis of normative legitimacy –whether they would give international institutions a right to rule. Certainly, theyleave many key questions about the design of international institutions unanswered,including the composition of decision-making bodies (should they be inclusiveor have a more limited membership?) and the appropriate decision-making rules(consensus or some kind of qualified majority voting?).

Similarly, we know very little about what would make international institutionsaccepted as legitimate. Writers assume that, if international institutions were moretransparent, representative, accountable, and so forth, this would engender the dif-fuse support – the reservoir of good will – that is the essence of descriptive legitimacy.But descriptive legitimacy may depend as much, if not more, on affective factors –common traditions and values, symbols, and the trust that can develop only over time.Thus far, most of the writing about descriptive legitimacy is a version of informedspeculation. We need more careful empirical work to determine the key factors thatcontribute to an international institution’s perceived legitimacy and those factors’relationship to compliance and effectiveness.

The study of international legitimacy offers an unusual opportunity for collabora-tion between political scientists and international lawyers. The two fields approachthe issue in largely similar ways. And, in contrast to some topics, in which the flowof insights has run mostly in one direction, from political science to internationallaw, each field has something to contribute to the other in studying legitimacy.Political science can assist in the development of more rigorous empirical studies ofdescriptive legitimacy. And IL can contribute insights about the particular ways thatlegality itself can be a legitimating force.

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