Legitimacy Beyond the State

Normative and Conceptual Questions

N. P. Adams, Antoinette Scherz, Cord Schmelzle, N. P. Adams, Antoinette Scherz, Cord Schmelzle

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000350623
• Edition: 1
• Topic: Personal Development
• Subtopic: Conflict Resolution

This volume addresses the normative legitimacy of the international order, asking how we can make sense of legitimacy claims of increasingly diverse global governance institutions and practices and how their legitimacy relates to and differs from state legitimacy.

State legitimacy is a central concern of modern political thought but is inadequate when applied to institutions that differ from the state in type, level of governance, scope, and much else. We need a new, tailored approach to the legitimacy of institutions beyond the state, especially international and transnational institutions. Such an approach includes foundational questions: what does it mean for institutions to be legitimate that have radically different purposes, means, interests, capacities, constituents, and roles from states? And what standards do such institutions have to meet in order to count as legitimate? The contributions to this volume seek to advance the debate on these questions at both abstract and more concrete levels. They range from conceptual questions about the nature of legitimacy and international institutions, to rule of law, to the legitimacy of the UN Security Council, the International Criminal Court, and occupying military forces in the face of challenges specific to their nature and context. Together they demonstrate both the promise and challenges of theorizing legitimacy beyond the state.

The chapters in this book were originally published as a special issue of the journal Critical Review of International Social and Political Philosophy.

Legitimacy and institutional purpose

N. P. Adams

ABSTRACT

Institutions undertake a huge variety of constitutive purposes. One of the roles of legitimacy is to protect and promote an institution’s pursuit of its purpose; state legitimacy is generally understood as the right to rule, for example. When considering legitimacy beyond the state, we have to take account of how differences in purposes change legitimacy. I focus in particular on how differences in purpose matter for the stringency of the standards that an institution must meet in order to be legitimate. An important characteristic of an institution’s purpose is its deontic status, i.e. whether it is morally impermissible, merely permissible, or mandatory. Although this matters, it does so in some non-obvious ways; the mere fact of a morally impermissible purpose is not necessarily delegitimating, for example. I also consider the problem of conflicting, multiple, and contested institutional purposes, and the different theoretical roles for institutional purpose. Understanding how differences in purpose matter for an institution’s legitimacy is one part of the broader project of theorizing institutional legitimacy in the many contexts beyond the traditional context of the state.

The purpose of the state matters a great deal for the debate over state legitimacy. The most basic conflicts between political anarchists, statists, and cosmopolitans, for example, often comes down to whether or not the state is actually necessary or sufficient for achieving some purpose. Within statism, Rawlsian political liberals reject any perfectionist aim, libertarians claim that the state can only undertake minimal functions, and so on. How we conceive of the purpose of the state matters for our understanding of the state’s legitimacy at a fundamental level.

In this article I explore how institutional purpose matters for institutional legitimacy in general.¹ Most discussions of legitimacy consider a bundle of specified institutional features that characterizes a particular institution or institutional type (Collingwood & Logister, 2005; Sangiovanni, 2013). For example, the state’s purpose is often considered alongside how it uses coercion and claims authority. Thus it is often difficult to see the role that purpose plays apart from other features of the institution. While complete theories of legitimacy eventually need to account for the bundle of features as an interdependent whole, it also helps to theorize the features independently of one another.

Such independent theorizing is especially important as we develop theories of legitimacy for new varieties of institutions, especially beyond the state. Having theorized the features independently, we will be able to see more clearly how they interact in unique combination. We will also be better able to investigate whether theories developed for particular institutions are applicable more broadly. For example, it is an open question whether democratic conceptions of state legitimacy are appropriate for institutions that differ drastically with respect to purpose, means, and other features. This is true of political institutions above the state, like the United Nations, the European Union, or institutions with more specific remits, like the World Trade Organization. Answering whether or to what extent democratic standards apply to such institutions requires us to investigate how particular features of institutions matter for legitimacy, both independently and in various combinations. My goal here is to show a number of complex ways that institutional purpose matters for legitimacy, although complete consideration of even this one feature is beyond the scope of this article.

Here is the plan. In the first section I sketch an account of institutions and institutional legitimacy, showing how general features of institutions establish a prima facie justificatory baseline. In the second section I consider how the deontic status of an institution’s purpose matters for its legitimacy. In section three I complicate matters, considering how degree of achievement of purpose matters and distinguishing extant purpose from hypothetical justificatory purpose. In section four I raise a variety of problems for theorizing extant purpose. Finally, in a brief concluding section, I suggest a way forward with a more minimalist understanding of institutional legitimacy.

Institutions and legitimacy

In the sense I am concerned with, institutions primarily consist of two elements: norms that define various institutional roles or offices and individuals who accept the norms, thereby occupying roles (Miller, 2009, p. 25). By defining the roles in a coherent way, institutions are able to carry out their most basic function of coordinating individuals’ actions.² While this broad definition might capture informal collections of norms, for example ‘the institution of marriage,’ my focus here is on more formalized cases. Formalization enables collections of individuals to act collectively and so raises the question of the standing to act collectively.

At its core institutional legitimacy constitutes a normative status or standing, which an illegitimate institution of that type lacks.³ For example, state legitimacy is usually understood as the right to rule: legitimate states have the right to rule and illegitimate states do not. This standing correlates to a specific uptake on the part of others; the right to rule standardly correlates with a duty to obey. The right to rule cannot capture the legitimacy of all institutions because many do not rule at all. Regardless of the type of institution, though, a legitimate token of that type has a standing that illegitimate tokens do not.

The nature of this standing is tied to legitimacy’s inherently practical role: it coordinates our collective responses to institutions in order to enable institutions to function (Adams, 2018; Buchanan, 2013). To call an institution legitimate is to ascribe it a standing that defines its relationship to various other individuals and groups in such a way as to protect its ability to exist and to function. To call an institution illegitimate is to deny that it has such a standing and so to deny it such protection.

For such an evaluation to be coherent, two conceptual preconditions must be met. First, there must be a coherent whole that can be evaluated and attributed a distinct normative standing qua collective actor. Second, that coherent whole must have a constitutive functioning that is protected. We must have a bearer of standing and a way to delimit its protections in a principled way. Institutional purpose contributes both to organizing a group of people into a coherent whole and to defining that group’s constitutive functioning.

Purpose shapes and structures a collection of norms into a viable whole, capable of coordinating individuals. Any collection of norms is bound to have conflicts and tensions. There is an indeterminate number of ways that any conflict between norms could be resolved. Why should this office or role have these powers? Why should it relate to other roles in this way? Without a guide to resolve these tensions, the collection will be incoherent, incapable of coordinating people in an organized way. The guide is the institution’s purpose.⁴

The constitutive functions of an institution are those functions without which it could not undertake its defining purpose. It is these functions that are the focus of the standing that legitimacy constitutes and so they are a useful criterion for individuating distinct institutional types.⁵ Universities and businesses are distinct kinds of institutions primarily because of their distinct purpose and constitutive functions. A private home that becomes a museum memorializing its famous occupant becomes a new kind of institution because its purpose and constitutive functions change.⁶

Institutional purpose need not be something that is explicitly and intentionally held by all or even any members of the institution; instead it is an organizing principle that is required to make sense of any collection of norms as being bound together in such a way as to contribute to the constitution of an institution. This purpose can be very simple; at the limit, as explored below, an institution’s purpose might simply be to share a set of norms. While institutional purpose can be merely implicit or very simple, it is more common for institutional purpose to be explicit and to aim at further goals.

Given that institutions are necessarily directed at and shaped by some purpose, the most basic normative question for any given institution is whether it is an appropriate tool for achieving the purpose in question. This question admits of various interpretations. We might ask whether the institution is the most efficient way to achieve some purpose. We might ask whether it is the only way to achieve some purpose – whether the state is the only way to achieve justice, for example, or whether membership in a particular church is the only way to get into right relationship with the divine. Among these interpretation, legitimacy asks: does this institution have the right to pursue its purpose? Must we collectively let this institution exist and undertake its constitutive functions, or not?

For an institution to be legitimate must mean that it has the right to exist qua means for pursuing its purpose or, as I call it, the right to function. As I understand it, the right to function is a claim-right against coercive interference in the constitutive functioning of the institution.⁷ Coercively interfering in the constitutive functioning of an institution amounts to preventing it from pursuing its purpose and so renders it a non-viable token of its type. Legitimacy, regardless of whether we conceive of it as also including anything more robust such as a right to rule, must include the right to coordinate people towards achieving some purpose.

In order to inquire into the role of institutional purpose in a relatively ecumenical way, here I focus on the right to function as the core of legitimacy on any account. Focusing on the right to function allows us to ask the following general questions: under what conditions does a group of people have the right to accept a set of norms and coordinate their behavior in order to collectively pursue some purpose, such that others have a duty not to prevent them from so doing? How does the nature of that purpose matter for the conditions under which that right can be gained or lost?

Inquiring into these questions is the task of the rest of the article, informed by two important features of institutions in general. First, institutions produce a variety of goods by their very nature, including the goods of association, cooperation, and organization (Levy, 2015). Further, individuals’ fundamental rights to self-determination include both the right to free association and the right to accept and bide by norms that structure our lives. An institution has a prima facie case for its right to function simply because it is a result of the free, protected choices of individuals and because it generates certain goods.⁸

The strength of this prima facie case is a matter of some contention that I do not address here but which matters a great deal for our final understanding of the legitimacy of a variety of institutions. One likely implication is worth noting because it also helps clarify the role of institutional purpose. There are many institutions that do not seem to have a purpose in the strong sense that, for example, we associate with institutions that have mission statements. A neighborhood’s social club doesn’t undertake any grand programs. But these institutions do have a purpose: organizing people. Regardless of whether they also pursue some further purpose, forming an institution allows them to gain the benefits of association and cooperation in a structured manner, reliably securing various goods. The goods of institutionalization can be the sole purpose of an institution. On my reading of the strength of the prima facie case for institutions’ right to function, such limited institutions are legitimate ceteris paribus.

It is worth asking, though, why we should conceive of an institution as the result of voluntary choice, and so worthy of the protections we grant such choices.⁹ Some institutions are the result of the voluntary associational choices of their members and some are not; membership in the state is most commonly not a voluntary act. Of course, when an institution is not voluntary in the right way, this raises immense questions for its legitimacy. The question I must address here is a methodological one: why take the voluntary institution as the default case, from which we construct our initial understanding of legitimacy? We might instead take involuntary membership in institutions, like the state or an ethnic group or often a religion, to be more fundamental.

In short, I think that it is much more difficult to make sense of legitimacy if we take involuntary membership as the base case. Being involuntarily obligated to join some group and to abide by its norms runs directly contrary to liberal egalitarian individualism, which is the general normative framework within which I am making my argument. Understanding legitimacy is difficult and nuanced enough in the case of voluntary institutions that adding the fundamental problem of nonvoluntariness seems to make the question profoundly difficult to answer. But ultimately I am a methodological pluralist and am happy to admit that every starting point, including my own, will illuminate some issues but obscure others.

In opposition to the prima face positive case for an institution’s legitimacy arising from voluntary choice and freedom of association, there is a prima facie negative case because institutions constitute a concentration of power precisely because they gather and coordinate the efforts of many individuals. Choosing to concentrate any significant amount of power is prima facie unjustified for a variety of reasons. One is that concentrating power is risky and people have rights against unreasonable levels of risk. Another is that, at least according to some views, concentrating power is in itself a harm when it is not controlled, e.g. on views which construe freedom as non-domination and domination as arbitrary power (e.g. Pettit, 1997). So there is also a prima facie case against an institution’s right to function because it generates certain risks or harms, some of which others may have rights against. The strength of this case largely depends on the type and magnitude of power in question and so on the size and nature of the institution. Small social clubs are legitimate ceteris paribus in part because they concentrate very little power. With these two baseline elements of the case for institutional legitimacy in hand, we turn to the role of purpose.

Deontic status

I noted at the outset that purpose is only one of the features of an institution that matters for an institution’s legitimacy. Even narrowing my focus to only one feature, here I cannot explain all the ways in which purpose matters for legitimacy. For example, it is clear that purpose will shape how an institution functions and so what further claims and rights will follow from the more general right to function, yet I do not pursue this issue here.¹⁰ Instead I focus on only one question: how purpose matters for the stringency of the standards that an institution must meet to be legitimate. I characterize this as how institutional purpose can raise or lower the justificatory bar for the right to function. Some purposes – or feature of that purpose – will raise the bar, i.e. an institution with that purpose must meet more stringent standards to have the right to function.

The standards for state legitimacy are more stringent than those for your local book club: the justificatory bar for the state’s right to function is higher. The state has to separate out its powers, has to consult everyone within its ambit, must have limited terms for officials, must explain itself to its members, and so on. Your book club doesn’t have to meet those same standards: it doesn’t have to be democratic, or even formalized, in order to have the right not to be interfered with in pursuing its constitutive purpose. This is intuitively plausible. The question I address in this paper is how different institutional purposes matter in this kind of way.

Perhaps the most obvious evaluation we can make of an institution’s purpose is in terms of its deontic status: is the purpose morally mandatory, merely morally permissible, or morally impermissible? The deontic...