How should international law’s role in determining international distributive outcomes, economic and otherwise, affect how we think about its legitimate authority? Domestic institutions’ legitimate authority in respect of distribution derives in large part from their concurrent roles in enabling security and coordination. Internationally, by contrast, functional disaggregation means that distribution must be legitimised in its own right. I begin by distinguishing the phenomenon of Distributive International Law, on which my argument focuses. I next introduce a number of wide instrumental accounts (...) of legitimate authority, including Rawls’ Natural Duty account, Buchanan’s metacoordination view, and Williams’ political realism, showing how each understands legitimacy as an institution-level characteristic, allowing an institution’s success in one area to support its legitimacy in another where it may be less successful. This poses the question of how we distinguish amongst distinct institutions, which I answer by reference to the causal and constitutive (in)dependence amongst activities. This approach explains why distributive legitimacy does not arise as a separate question domestically: we cannot distinguish the state’s security and coordination activities from its distributive activities, so if the former are legitimate then so, ipso facto, are the latter. Internationally, by contrast, these mutual dependencies are limited, requiring that the legitimacy of distribution be established independently of other roles that international law plays. (shrink)

Journal of Social Philosophy, EarlyView.

Traditional concepts of legitimacy that often focus on a right to exercise coercion or a right to create moral obligations are not applicable to many political institutions. In particular, many global governance institutions rely on ways of providing governance that do not involve coercion or the creation of moral obligations. That is why this paper develops a novel concept of legitimacy as the right to function. This more general concept of legitimacy is able to help us make sense of many (...) references to the term `legitimacy´ in academic or practical-political debates that cannot be explained by traditional concepts of legitimacy. In addition, the use of the concept of legitimacy as the right to function opens up the conceptual space to accommodate important insights with respect to the normative criteria of legitimacy in global governance. For instance, as global governance institutions fulfil very different functions it is plausible that the criteria of legitimacy for different global governance institutions are not the same because in judgments concerning their legitimacy different rights are at stake. (shrink)

Journal of Political Philosophy, EarlyView.

International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards fo...

Interest in just war theory has boomed in recent years, as a revisionist school of thought has challenged the orthodoxy of international law, most famously defended by Michael Walzer [1977]. These revisionist critics have targeted the two central principles governing the conduct of war (jus in bello): combatant equality and noncombatant immunity. The first states that combatants face the same permissions and constraints whether their cause is just or unjust. The second protects noncombatants from intentional attack. In response to these (...) critics, some philosophers have defended aspects of the old orthodoxy on novel grounds. Revisionists counter. As things stand, the prospects for progress are remote. In this paper, we offer a way forward. We argue that exclusive focus on first-order moral principles, such as combatant equality and noncombatant immunity, has led revisionist and orthodox just war theorists to engage in “proxy battles.” Their first-order moral disagreements are at least partly traceable to second-order disagreements about the nature and purpose of political theory. These deeper disputes have been central to the broader discipline of political theory for several years; we hope that bringing them to bear on the ethics of war will help us move beyond the present impasse. (shrink)

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number (...) of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation. (shrink)

ABSTRACTThis article addresses the identity of the legitimate actors of international law-making from the perspective of democratic theory. It argues that both states or state-based international organisations, and civil society actors should be considered complementary legitimate actors of international law-making. Unlike previous accounts, our proposed model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to palliate the democratic deficits of more common versions of the Principle (...) of State Consent. Second, it endorses a qualified version of the Principle of Civil Society Participation, one that is much more restrictive and more critical of the democratic defects of civil society actors than most of its current supporters. Finally, it reveals how the democratic strengths and deficits of both models are best approached as mirroring one another and need to be combined in a complex ac... (shrink)

Pluralistic theories of global distributive justice aim at justifying a plurality of principles for various subglobal contexts of distributive justice. Helena de Bres has recently proposed the class of disaggregated pluralistic theories, according to which we should refrain from defending principles that apply to the shared background conditions of such subglobal contexts. This article argues that if one does not justify how these background conditions should be regulated by principles of a just global basic structure, then the realization of the (...) principles that are justified for the subglobal contexts of distributive justice can erode and undermine justice over time. For example, the realization of justice in international trade might undermine climate justice, at least if climate justice requires increasing tariffs but justice in international trade calls for reducing tariffs. Principles of a just global basic structure would have to ensure that such justice-eroding spillover effects from one to another context of justice do not occur. Finally, the article responds critically to de Bres’ objections that an account of a just global basic structure is too idealistic, not action guiding, and superfluous. (shrink)

There are two bodies of literature, one offering theories of the legitimacy of domestic institutions like states, another offering theories of the legitimacy of international institutions like the IMF. Accounts of domestic legitimacy stress the importance of democratic procedure, while few to no theorists make democracy a necessary condition for the legitimacy of international institutions. In this paper, I ask whether this asymmetry can be defended. Is there a unified higher-order theory which can explain why legitimacy requires democracy in the (...) domestic context, but not in the international context? I argue that no proceduralist higher-order theory succeeds, and that we need to look for other solutions. (shrink)

The question of whether global democracy requires a world state has with few exceptions been answered with an unequivocal ‘No’. A world state, it is typically argued, is neither feasible nor desirable. Instead, different forms of global governance arrangements have been suggested, involving non-hierarchical and multilayered models with dispersed authority. The overall aim of this paper is to addresses the question of whether global democracy requires a world state, adopting a so-called ‘function-sensitive’ approach. It is shown that such an approach (...) is equipped to resist the predominant binary view of a world state and offer a more differentiated and nuanced answer to this question. In brief, a basic presumption of a function-sensitive approach is that the content, justification and status of principles of democracy are dependent on the aim they are set out to achieve, what functions they are intended to regulate (e.g., decision-making, implementation, enforce... (shrink)

This paper discusses how the general and abstract concept of legitimacy applies to international institutions, using the United Nations Security Council as an example. We argue that the evaluation of the Security Council’s legitimacy requires considering three significant and interrelated aspects: its purpose, competences, and procedural standards. We consider two possible interpretations of the Security Council’s purpose: on the one hand, maintaining peace and security, and, on the other, ensuring broader respect for human rights. Both of these purposes are minimally (...) morally acceptable for legitimacy. Second, we distinguish between three different competences of the UNSC: 1) the decision-making competence, 2) the quasi-legislative competence, and 3) the referral competence. On this basis, we argue that different procedural standards are required to legitimise these competences, which leads to a more differentiated understanding of the Security Council’s legitimacy. While maintaining that the membership structure of the Council is a severe problem for its legitimacy, we suggest other procedural standards that can help to improve its overall legitimacy, which include broad transparency, deliberation, and the revisability of the very terms of accountability themselves. (shrink)

Modern democratic polities regularly operate at several political levels. In the case of the EU at the level of the member-states and the EU itself, and in addition at federal, regional, and municipal levels. Is there any democratic rule to determine which level is more legitimate than the others? The article argues that from a majoritarian perspective there is none. Individual citizens may have quite different preferences with regard to the level that is of particular political importance for them. The (...) article critically analyses different concepts, from sovereignty to demos, subsidiarity, and the judicial review of competences, and tries to show that none of them can provide a solution to the dilemma. Instead, democratic theory has to assume that in the co-evolutionary process of institutions and societies at different political levels, the question of the final say has to be left open. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 123-138, June 2022.

ABSTRACT Peter Hägel's Billionaires in World Politics undoubtedly fills a gap in the literature of international relations and global governance. My comment seeks to highlight that Hägel's (2020. Billionaires in World Politics. 1st ed. Oxford Scholarship Online. Oxford: Oxford University Press) work allows us to advance our understanding of how these private actors can be understood as legitimate authorities and how they can contribute to the legitimacy of the international order. I divide my commentary into three points: the first concerns (...) the approach to billionaires from their individual agency (the individual approach), the second relates to the separation between the state and the global levels (the division approach), and the third presents questions on political legitimacy that arise from his case studies (the legitimacy question). (shrink)

International law’s legitimacy has come under serious attack lately, including, and maybe even more so, in regimes considered democratic. Reading Dworkin’s New Philosophy for International Law in the current context is a timely reminder of the centrality of the political legitimacy of international law. Interestingly, indeed, his account does not succumb to the (however progressive) cosmopolitan ideal of an international political community. Nor is it reducible to a concern for domestic justice in which political legitimacy is only self-regarding. By revisiting (...) seventeenth century international legal theories, Dworkin sends both cosmopolitans and statists back-to-back. He (re-)discovers a third way in which to conceive of statehood today: not on its own, but in a mirror-image fashion and against the background of the international institutional order without which there would be no equal sovereign States, but no individual equality either. Carrying Dworkin’s argument forward, this article identifies and discusses three of its crucial contributions with respect to the objects, subjects and institutions of international legitimacy that deserve further attention. It concludes with different proposals regarding the design and organization of other international institutions than States, both public and private, by reference to their relationship to States (and their people). According to Dworkin, this should enable us to improve not only the legitimacy of the international institutional order as whole, but also the political legitimacy of each State therein since both are mutually related. (shrink)

In this thesis I defend the principle of global egalitarianism. According to this idea most of the existing detrimental inequalities in this world are morally objectionable. As detrimental inequalities I understand those that are not to the benefit of the worst off people and that can be non-wastefully removed. To begin with, I consider various justifications of the idea that only those detrimental inequalities that occur within one and the same state are morally objectionable. I identify Thomas Nagel’s approach as (...) the most promising defence of this traditional position. However, I also show that Nagel’s argument does not even justify the elimination of detrimental inequalities within states. A discussion of the concept of political legitimacy rather shows that egalitarian justice is not a necessary condition of the justifiability of the exercise of coercive political power. I, then, consider other, more Rawlsian approaches to the question of detrimental inequalities. These views appear more plausible than Nagel’s position and argue that egalitarian duties also arise in certain international contexts. But also these more global theories of distributive justice suffer from shortcomings. Since they make the application of duties of justice dependent on the existence of social practices they cannot adequately account for the justified interests of non-participants that are affected by these practices. The counter-intuitive implications of practice-dependent theories lead me to investigate the plausibility of a theory that does not limit justice to existing practices and that argues for the inherent value of equality. This theory is global egalitarianism. I defend global egalitarianism by debilitating three objections that opponents of this idea frequently present in the relevant literature. Finally I also address two particular objections to the idea that global egalitarian duties are institutionalizable with the help of coercive global authorities. (shrink)

Once limited to issues in maritime and trade law, today the most recognizable examples of international law govern issues such as human rights, intellectual property, crimes against humanity and international armed conflicts. In many ways, this proliferation has been a welcomed development. However, when coupled with international law’s decentralized structure, this rapid proliferation has also posed problems for how we (and in particular judges) identify if, when, and where international law exists. This article puts forward a novel, dignity-based account for (...) how we answer this question: arguing that an international law exists if and only if it is consistent with respecting dignity. The upshot of this account is two-fold. First, it explains many features of international law that other theories leave unaccounted for or under-explained. And second, my dignity-based account provides for a mechanism through which the system can continue to be developed and improved. (shrink)

In the contemporary philosophical literature, political legitimacy is often identified with a right to rule. However, this term is problematic. First, if we accept an interest theory of rights, it often remains unclear whose interests justify a right to rule : either the interest of the holders of this right to rule or the interests of those subject to the authority. And second, if we analyse the right to rule in terms of Wesley Hohfeld’s characterization of rights, we find disagreement (...) among philosophers about what constitutes the conceptual core of political authority: a power-right or a claim-right to rule. In this paper I show that both of these are problematic for a number of reasons. First, if we think that it is only the interests of the holders of a right to rule that justify the possession of authority, the conceptual core of authority must consist in a claim-right. However, this understanding of authority biases our thinking about legitimacy in favor of democratic exercises of power. Second, if we hold such a decisively democratic view of legitimacy, we confront an impasse with respect to addressing global collective action problems. Although it is clear that political authority is necessary or useful for solving these issues, it is doubtful that we can establish global institutions that are democratically authorized anytime soon. The paper suggests an alternative ‘Power-Right to Command View’ of political legitimacy that avoids the democratic bias and allows for thinking about solutions to global problems via global service authorities. (shrink)

In the last few decades, the democratic credentials of global governance institutions have been extensively debated in the fields of international relations and political philosophy. However, despite their prominent role in the architecture of global governance, club governance institutions like the Group of Seven (G7) or the Group of Twenty (G20) have rarely been considered from the perspective of democratic theory. Focussing on the G20, this paper analyses its functions in international political practice and discusses whether, in exercising these functions, (...) the G20 exhibits a democratic deficit. As a standard of democracy, the analysis uses the all-affected principle, according to which all those who are affected by a policy decision should be given the opportunity to participate in decision-making. This paper identifies several democratic shortcomings of the G20, for instance related to the exclusion of citizens of non-member states and a lack of parliamentary and public control. By describing realisable reforms that could to some degree alleviate these shortcomings, it is shown that more democratic institutional alternatives are feasible. Thus, the ascription of a democratic deficit to the G20 is warranted. (shrink)

In this paper, I challenge Joshua Cohen’s denial of the existence of a human right to democracy, using for that purpose arguments presented by Cohen himself in other occasions. In a first section, I explain five contradictions in which I believe Cohen incurs with respect to his previous works. In a second section, I explain two conclusions that I believe can be derived from this development: first, that the right of peoples to self-determination does not impede the existence of a (...) human right to democracy, and second, that this reasoning is not only applicable to the domestic order, but also to global decision-making. (shrink)