Legitimacy, Rights and Ideology: A Seminar Note

The quote “[w]e need to treat normative concepts less as statements about the world than as tools and weapons of ideological debate” offered in the first lines of Koskenniemi’s piece “Legitimacy, Rights and Ideology[1] seems to set the tone quite nicely of the remainder of the paper since Koskenniemi not only tries to damask the concept of legitimacy in international law talk but also, unwillingly or not, takes the critical edge out of the word ‘hegemonic power’ by turning it into a descriptive term of all power, be it soft, persuasive, rhetorical or “brute”. But for that a bit later, for now let’s start at the beginning, with Koskenniemi’s note of the change in vocabulary in international law speak, one that moves away from both international law and international morality and towards a new concept of legitimacy. Legitimacy, it seems, is a mediating concept, neither fully overlapping with international law, (since some actions can be legal but not legitimate and vice versa – the answer to the Weimar paradox – and has no commitment to any particular institutional form), nor international morality (it might be your morality but not mine; you are trying to hide your interests behind a moral façade) and allowing it to escape the objections that can be lodged against both. It creates normativity “that would be something else than ‘simply’ law or morality and provide[s] an independent reason for yielding to authority.”[2]

 
[L]egitimacy poses an elusiveness well adapted to the realities of a fluid, complex and globalizing world … [where it] redescribes the international world in terms of categories whose beneficiality seems self-evident: lawfulness, fundamental values and human rights. It does this as an exercise neither in law nor political philosophy but in terms of an empirically oriented social science that connects popular attitudes with institutional decision-making, being itself part of the latter.[3]

 

In this new world “lawyers, political philosophers and realist international relations scholars” need not bother applying since their vocabulary and their concepts are left behind in the ‘old’ world now transformed which can only become “visible if articulated by the mélange of empirical sociology, psychology, and liberal political theory that is now offered by the language of legitimacy”.[4] It is domestic liberal political theory where the concept of legitimacy comes from and is exported to the international sphere, but unlike its domestic counterpart, this borrowed concept is “thin”, having very little substance behind it and can be marshalled in the service of one’s interest. It is a similar case with human rights (another mediating concept identified by Koskenniemi), which are “‘factoid’, they transcend mere preferences and mediate between factual and value judgments”[5] and which “paradoxically … seem strongest when they can be accepted without recourse to such putative justifications … like ‘facts’, the force not of ‘reasons’, but on self-evidence”[6] Furthermore, like legitimacy, rights is a thin concept imported from domestic settings where it draws it substance since

 
“for rights to receive meaning and applicability, they depend on the prior existence of an institutional and political culture that thinks of certain benefits as ‘rights’, follows some pattern of rights-conflict, sets rights and exceptions to some relation to each other and provides interpretative guidance.”[7]
 

Furthermore, “[r]ights cannot create a moral community because they require for their proper function the existence of such.”[8] Absent such a community, legitimacy and rights, although not ideological, have the role of the fig leaf, “its openness dissimulates a substantive void that blunts legal and political criticism and lets power redescribe itself as authority on its own terms.”[9] Moreover,

 
The perspective is control. The normative framework is in place. The action has been decided. The only remaining issue is how to reach the target with minimal cost and delay. This is where legitimacy and the political scientist are needed as the ‘feeling’ of appropriateness and its interpreter. But in normative terms, nothing is added to what legal validity or moral-political appropriateness may have offered… Sure enough the fact that some action is agreed to by others will enhance its exclusionary reason only if it is justifiable on terms of law or morality. If neither is present – if agreement is received by coercion or by fabrication of evidence – then the added value results simply of power.[10]
 

Absent a constructing community, the escape of a discourse that would not end in a “bottomless relativism”[11] which comes with moral reasoning in foreign policy is found in the talk of legitimacy, marking an area of “acceptable disagreement”[12] where certain world views do not even get a seat at the dining table conversation and where the table manners of the day are knives and forks, not chopsticks. “Legitimacy here sets down the normative space or a field of jurisdiction within which some positions or actions are altogether excluded while everyone must formulate their claims within one orthodox set of notions – namely ‘Rechtsstaat’ and rights.”[13] Moreover, “[t]he discourse of legitimacy has naturalized a subtle shift in the structures of disciplinary power through which we make sense and evaluate the workings of international institutions.”[14] The realist pre Cold-War world has passed in the realm of historians and is replaced by the normativity of legitimacy lifted from the political doctrines of the West of a specific modernistic (but not-postmodern) world full of “context[s] in which representation, popular consent, human rights and the Rule of Law”[15] were they were created and from where they receive their meaning.

 
Legitimacy points backwards into those discourses, lifts them onto the international level, but is distinguished from them by its lightness and elusiveness. It is not a standard external to power, against which power might be assessed, but a vocabulary produced and reproduced by power itself through its institutionalised mechanisms of self-validation.[16]
 

It is hard not to be persuaded by the account that Koskenniemi gives of the concept of legitimacy and its current use in international politics, but it is a this point that I would like to offer a couple of comments of my own to this critic, one small one regarding his broad concept of power and the other regarding the thinness of the concept of human rights as connected to the ides of “bottomless relativism.” It seems that Koskenniemi has an all-encompassing notion of power, conflating persuasive, rhetorical, soft power (“soft power is power, too, the power of moral rectitude”[17]) with “brute force” power. If persuasive power, the ability to change and model actors’ self-perceived interests is “hegemonic” power it is hard to see what type of power, what type of discourse for that matter, would escape the notion of hegemonic for if there is no difference between the change of perceptions of self-interests that comes at the point of a gun and the one that comes from being persuaded in a certain belief then the word hegemonic loses its critical bite. It comes to us at a level of a descriptive rather than as a moral qualification about its acceptance. It becomes a synonym of power rather than an adjective qualifier; it adds nothing to the word power and can, therefore, be easily dropped from the conversation, side-lined, dismissed as adding nothing to the discourse.

But as we all know, especially those of us who have been at the receiving end of the adjective “hegemonic” know that the word is loaded with moral judgment, it is a label which nobody wants to be associated with and for a good reason. Used in a way that it is used in Koskenniemi’s piece the conclusion would be that the way to escape the adjective hegemonic for persuasive force is to have a type of discourse that does not want to persuade, that does not want to change one’s audience’s beliefs, but then again that type of discourse would be at best insincere (by saying things we ourselves do not believe in and therefore having no desire at persuasion) and at worst a talk about nothing important the mere production of noise for the sake of noise.

The second comment that I would like to make is a point about Koskenniemi’s missing conclusions for he has seemed to miss the force of his own analysis especially when he is talking about problems of morality and the avoidance of dissent into “bottomless relativism”. To put the claim of international human rights thinness of concept in its proper context, we have to first start the discussion with the notion of the thesis of social constructiveness where notions of value, truth, morality etc. do not have intrinsic meaning but are socially and historically contingent. Consequently, Koskenniemi’s discussion of your morality but not mine, for to speak of an action justified by morality on the international plane is to speak of one’s community’s morality therefore opening oneself to the attack of trying to mask ones interests in the language of morality (in the absence of a shared morality, one person’s morality is another person’s “mere” interest). In the Rortyian sense, without a shared foundation and a lack of external measures of validity, or external measures of right and wrong (outside of one’s own community’s beliefs) how can one still maintain one’s claim that one action is more morally justifiable then another. And that is where the problem lays for one gets the impression that Koskenniemi both accepts that there is no external standard of moral validity, of a sense of right and wrong, but labels a process hegemonic because it cannot offer such an external standard.

 

Consequently, Koskenniemi’s analysis does not go far enough; yes human rights and the concept of legitimacy have been exported from Western liberal though and yes they are a way to shape the self-interests of other communities and yes they rely on a thick notion of Western morality, but can it be any other way? In a world of where one’s moral perceptions are shaped by one’s beliefs, beliefs themselves shaped by one’s community, and if one cannot escape one’s beliefs for they shape her world view, then asking for someone not to try to persuade, to rhetorically shape other’s beliefs would be to ask somebody to either not hold their beliefs sincerely (which is an impossibility) or to ask one to hold the belief that the toleration of actions (be they justified by morality other than one’s own or not) regardless of one’s moral judgment of them as higher than any other moral notion. It is to elevate the notion of tolerance to a supreme moral principle (a universal moral principle why not); it is to ask to tolerate a North Korean dynasty not because it has nuclear weapons and is prepared to use them, but because they are an expression of different kind of morality, of a different community’s morality. In this sense, human rights and legitimacy have a thick conception behind them (as evidenced by the daily “business” of interpreting and applying the various international human rights conventions), it is just that that thick concept comes from a specific view point, that of Western liberal thought, but again can there be a different way? If the answer that Koskenniemi would give is no then Koskenniemi’s article, although a very interesting and a delight to read and a great contextualization of the legitimacy talk, loses its critical bite; it becomes a description rather than a warning (the silence of the klaxons is welcome). But what a description it is!





[1] Martti Koskenniemi, Legitimacy, Rights, and Ideology: Notes Towards a Critique of the New Moral Internationalism, 7 Associations 349 (2003).
[2] Ibid at 354.
[3] Ibid. 350-351
[4] Ibid.
[5] Ibid at 365.
[6] Ibid at 365.
[7] Ibid at 367.
[8] Ibid at 367.
[9] Ibid at 367 emphasis in original.
[10] Ibid at 369.
[11] Ibid at 371.
[12] Ibid at 371.
[13] Ibid at 372.
[14] Ibid at 372.
[15] Ibid at 373.
[16] Ibid at 373.
[17] Ibid at 369.

 

 

Merket med Legitimacy