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What is it We Disagree About When We Disagree About the Legitimacy of an International Court?

Courts
International
Silje Langvatn
Universitetet i Oslo
Silje Langvatn
Universitetet i Oslo

Abstract

Presenter requested this Panel. When lawyers discuss the legitimacy of international courts and tribunals (ICs) they tend to speak of legitimacy as synonymous with sufficient legality. Political and moral philosophers, on the other hand, focus almost exclusively on the moral justifiability of the courts and their rulings, while political scientists often speak of court’s legitimacy as synonymous with the levels of support and deference. Almost all aspects of ICs’ set up and operation have been confronted with charges of illegitimacy from one perspective or the other. Is there any hope of integrating all these uses of the concept legitimacy, and all these aspects and concerns, into a single conception of IC legitimacy? Must we conclude that different disciplines and people mean different things by legitimacy, and that discussions about an ICs’ legitimacy are irresolvable? Or can we do with something less than a full substantive conception of legitimacy? The paper argues that theorizing about IC’s legitimacy ought to take a pragmatic turn, in the sense of refocusing on working out understandings of IC legitimacy that make sense also to other disciplines and practitioners. Most current attempts to work out conceptions of IC are either monistic conceptions of legitimacy; conceptions that attempt to define the essence of legitimacy or explain the core of legitimacy in terms of a single criterion or key quality such as “consent” or “service”, or so-called mixed conceptions of legitimacy; conceptions that set up a concrete list of substantive and procedural criterion that an IC has to satisfy in order to be sufficiently legitimate. The paper argues that both types of legitimacy conceptions are of little use in interdisciplinary settings, and when there are disagreements about an IC’s legitimacy. The paper argues that John Rawls’ general characterization of the formal elements and logic of legitimacy judgments (as opposed to his political liberal conception of legitimacy), provides a more useful starting point for formulating a general concept of legitimacy that can serve as a basis for interdisciplinary discussions, and help yield a more precise understanding of what it is we disagree about when we disagree about ICs’ legitimacy.