Our current understanding of the idea of legitimacy is deeply connected to the peculiarly modern political institution of the nation-state. 1 But questions of legitimacy have moved beyond the state. It is now common to examine the legitimacy of institutions such as the European Union, international courts, international human rights institutions, or those focused on specific issues, like the World Trade Organization or particular transnational non-governmental organizations. 2 As our traditional state-centric understanding of legitimacy is applied to these new modes of governance and new varieties of institutions, however, it is becoming increasingly strained. The concepts and standards developed in response to the problems of a much less globalized, much more Westphalian world may be inadequate for the contemporary context. Theorists have responded to this tension in two general ways. 3 One strategy is to take a traditional state-centric understanding of political legitimacy and modify it as * My thanks to Merten Reglitz, Antoinette Scherz, and Cord Schmelzle for their feedback on this paper and for many incisive conversations on this topic. An early version of this argument was presented at the workshop "International Legitimacy and Law" at Goethe University Frankfurt in July 2015; thanks to the organizer and audience for the discussion. In addition, thanks also to three anonymous reviewers of this journal for their helpful comments and suggestions. 1 The term 'legitimate' gets used in a huge variety of ways, often simply to mean "justified." My account is not meant to capture all of the many ways the language of legitimacy is applied. Section one outlines the sense of the term that I am interested in; as will be clear, my concern is with the normative sense of legitimacy, not the dependent descriptive or sociological sense. 2 Here is an extremely incomplete but somewhat representative sampling to illustrate the variety of international legitimacy claims that are being made in an increasingly large literature. On the EU:
Discussions of political obligation and authority have focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of “content-independence” is unclear and controversial, with some claiming that it is incoherent, useless, or irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their container. I then show how the fact that laws can constitute content-independent reasons is consistent with the fact that some laws must fail to bind due to their egregiously unjust content. Finally, I defend my understanding against challenges and show why it retains a place of special importance for questions about the law and political obligation. Content-independence highlights that it is some feature of the law or law-making process in general that is supposed to generate moral obligations for citizens, not the merits of particular laws.
The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further and show how the special issue's individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law.
Forthcoming in Philosophical Studies. Please refer to the published version. AbstractExclusionary defeat is Joseph Raz's proposal for understanding the more complex, layered structure of practical reasoning. Exclusionary reasons are widely appealed to in legal theory and consistently arise in many other areas of philosophy. They have also been subject to a variety of challenges. I propose a new account of exclusionary reasons based on their justificatory role, rejecting Raz's motivational account and especially contrasting exclusion with undercutting defeat. I explain the appeal and coherence of exclusionary reasons by appeal to commonsense value pluralism and the intermediate space of public policies, social roles, and organizations. We often want our choices to have a certain character or instantiate a certain value and in order to do so, that choice can only be based on a restricted set of reasons. Exclusion explains how pro tanto practical reasons can be disqualified from counting towards a choice of a particular kind without being outweighed or undercut.1 Although we sometimes we refer to a fact as the same reason across cases because it can be in more than one reason, I will avoid this; the reason is the relation between the fact, object, and agent, not the fact alone.
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