ABSTRACT
Under what conditions can a decision to use force be reckoned to be legitimate in international politics? This study has concluded that legal and moral concep tions of legitimacy fail to answer this question properly, largely because they do not account for how politics, understood as the process of articulation and maxi mization of actors’ political interests through the deliberative construction of social reality, constrain the definition, contestation, and adjudication of what counts as legitimate conduct in a particular political context. By bridging the gap between the level of observation (ethics) and the level of action proper (politics), which define how legitimacy is assessed and exercised respectively, the concept of deliberative legitimacy offers a much better framework for the analysis of legitimacy in international politics. From an analytical perspective, it explains how meanings associated with the decision to use force are produced and natu ralized through argumentation by the relevant interpretative community. From a normative perspective, it offers a moral platform on the basis of which actors’ justifications to resort to force can be ascertained and validated. The book has also argued that a sound analysis of legitimacy requires consti tutive, not causal, theorizing. The political dimension of legitimacy (i.e. the sub stance of legal or moral arguments) does not exist independently of the social dimension of legitimacy (i.e. actors’ voluntary compliance with these rules and not others). The first constitutes the second, as opposed to “causing” it – that is, it explains how certain rules, norms, and principles are put together so that they have the social properties that they do. Therefore, a constitutive theory of legiti macy involves two levels of analytical reasoning: one deals with the substantive principles and procedural norms that make legitimacy possible, while the other focuses on the social structures that make certain constitutive arrangements of legitimacy more reliable than others. The concept of deliberative legitimacy addresses the first level of analysis, whereas those of fairness and tractability are concerned with the second. Fairness refers to the idea of “mutuality of freely consented restrictions” – that is, when a number of persons voluntarily agree to participate in and to share proportionally the burdens and benefits of a joint enterprise, those who have
submitted to these restrictions have a right to similar conduct from those who benefited from their submission. Tractability, on the other hand, refers to the ability of normative claims to draw adherents at reasonable costs. This implies that a tractable conception of legitimacy must include aspects that address not only the communitarian focus on state autonomy, but also the cosmopolitan interest in “duties beyond borders.” The concepts of fairness and tractability thus offer effective tools for understanding why actors may be more inclined to follow certain constitutive arrangements of legitimacy rather than others. Simply put, a sound conception of legitimacy must be normatively tractable and sub stantively fair. Applied to the case of just war theory (JWT) and international law, the ana lysis revealed a relatively low degree of fairness and tractability for the two approaches. JWT is unable, for instance, to account for how fairly the members of the relevant interpretative community negotiate interpretations of just war cri teria and produce political decisions. On the other hand, selectively enforced restrictions and constrained consent introduce, for instance, a critical tension at the core of the UN legal framework on the use of force. The level of tractability of the two conceptions of legitimacy is also compromised by their limited capac ity to address issues pertaining to both cosmopolitan and communitarian models of sovereignty, as well as by the lack of deliberative effectiveness of the relevant interpretative community. The deficit of fairness and tractability in the two models’ legitimacy shows how important argumentative exchanges are for fixing the meaning of legitimacy around particular textual provisions. By providing an effective tool for evaluating how interpretations of legal and moral standards are constructed, negotiated, and settled through argumentation, deliberative legitimacy, understood as the non coerced commitment of an actor to abide by a decision reached through a process of communicative action, does not merely offer a supplementary dimension to legal and moral conceptions of legitimacy. It aims instead to integrate the latter into a more coherent conceptual framework that provides a more nuanced understanding of the validity of moral and legal arguments, as well as of their reasoning in practice. The application of deliberative legitimacy to issues of international politics depends, though, on three validity claims: claims of truth, inclusiveness, and truthfulness. The signifi cance of the three validity claims of deliberative legitimacy stems from the unique way in which they address the issue of how to make sense of ambiguous or contradicting statements. The first condition of deliberative legitimacy takes care of this problem by investigating whether relevant existing information has been deliberately omitted or manipulated by interested parties. In other situations, ambiguities are the result of the fact that social reality is still unfolding, and hence hard evidence regarding the case under scrutiny is not yet available. This is why the second and third criteria of deliberative legitimacy are crucial for making sense of the various claims put forth by the actors involved. Unwillingness to include other relevant actors in the debate and refusal to engage in argumentative reasoning only serve to discredit claims made on that basis, because they clearly demon
strate the intent to pursue an ideological agenda largely divorced from social reality. Deliberative legitimacy serves not only as an analytical theory of social action explaining how actors coordinate their actions based on subjective interpreta tions of the legal or moral worthiness of a particular decision, but also as a nor mative theory of justice underpinned by an emancipatory critique of power. From an analytical perspective, the key issue that deliberative legitimacy tries to clarify is whether the promoters of a military intervention try to reach a reasoned consensus on the legal or moral justifications for the use of force, or merely engage in power games based on credible threats, promises, or rhetorical exchanges, with no visible intention to achieve argumentative consensus with the other members of the international community on the definition of the situa tion and on the course of action. From a normative perspective, deliberative legitimacy represents the platform on the basis of which the points of contention between actors’ justifications to use force can be ascertained and validated. Deliberative legitimacy thus validates the position of the party making system atic efforts to reach a reasoned consensus on the legal and moral justifications for using force. The last part of the study focused on the empirical application of the three conceptions of legitimacy (legal, moral, and deliberative) to two case studies: the 1999 NATO intervention in Kosovo and the 2003 US intervention of Iraq. From a moral point of view, just war criteria provided marginal support for the Kosovo intervention and negative support for the Iraq war. In the Kosovo case, the criteria of right intention, likelihood of success, and last resort offered good support for the legitimacy of the intervention. The moral aspects of the US inter vention in Iraq were very controversial, since only two of the just war criteria (right intentions and likelihood of success) offered moral support for the intervention. From a legal point of view, neither the UN Charter nor international custom ary law offered clear legal grounds for the two interventions. In the Kosovo case, none of UN Security Council resolutions adopted in response to the crisis autho rized the use of force against the Federal Republic of Yugoslavia. On the issue of international customary law, many legal analysts expressed doubts as to whether a rule of customary law permitting an armed humanitarian intervention really existed and whether it could be invoked in the Kosovo case. The legal basis of the US intervention against Iraq was ambiguous at best and illegal at worst. Resolution 1441 recognized officially that Iraq was in material breach of the terms of the 1991 cease fire, but it refused to authorize the use of force against it. From a customary law perspective, neither the necessity nor the pro portionality of the response to the alleged Iraqi threat could be convincingly proven, although the notion of imminence might require some qualification in view of the WMD threat. By clarifying how textual based arguments concerning the moral or legal conditions for using force were interpreted, negotiated, and eventually settled through deliberation in the two cases, deliberative legitimacy provided a more
reliable framework for examining the legitimacy of the two interventions. The analysis revealed, for instance, that the decision to use force in Kosovo was based on sound justifications, inclusive deliberative context, and positive argu mentative reasoning. More specifically, the problem of human rights abuses was presented by the supporters of the intervention in compelling terms, the inclu sion of all parties in the debate was comprehensive and reasonably fair, and the degree of responsiveness to others’ interests and arguments was positive, espe cially on the issue of diplomatic negotiations. By contrast, a deliberative analysis of the legitimacy of the US intervention in Iraq demonstrated that the decision to use force was informed by inaccurate jus tifications framed by an exclusivist deliberative context and was based on nega tive argumentative reasoning. In more concrete terms, the pro war side failed to substantiate any of its main justifications for war. At the same time, the delibera tive framework was set up in an exclusivist manner to the extent that key members of the domestic and international interpretative community were pre vented, often abusively, from providing input to or raising criticism of the Bush administration’s position. Last but not least, while the two sides had demon strated a minimal level of argumentative reasoning in the period leading up to the adoption of Resolution 1441, strategic and rhetorical actions dominated the diplomatic process once the UN inspectors started to report back the lack of evi dence concerning Iraqi WMD.
