ABSTRACT
This chapter will argue that a sound analysis of the legitimate use of force (LUF) must integrate legal and moral conceptions of legitimacy through a deliberative dimension, based on Jürgen Habermas’s theory of communicative action. This conceptual innovation is important for three reasons. First, from an ontological viewpoint, the concept of legitimacy cannot be reduced to an essentialist description of social norms and rules. Legitimacy rests on an intersubjective understanding, the meaning of which is only partially fixed by authoritative texts such as legal conventions, treaties, or moral doctrines. A significant additional part is created and fixed through deliberation – that is, through an exchange of arguments among the relevant actors about what textual interpretations of legitimacy are more valid in a particular situation, and why. Given the usual ambiguity of the legal and moral documents, the same textual provisions could be differently interpreted and prioritized depending on the political positions of the actors involved. Moreover, it is exactly this surplus of meaning created through argumentation that eventually shapes the decision to use force. Second, from an epistemological viewpoint, legitimacy cannot be discussed separately from the interpretative community that defines and validates it. Legal and especially moral conceptions of legitimacy are premised on the idea that their textual provisions are self-sufficient – that is, they require little to no interpretative work for their validation and implementation. Put differently, the legal or moral text represents the primary source of authority for most conventional approaches. The reader interpreting it (e.g. the relevant interpretative community) is basically assigned a minor role in this process. This position is nevertheless unsustainable. The reference text and the interpreting reader are equally important sources of legitimacy. As mentioned above, meaning is created not only through textual inscription, but also through deliberation. Even more importantly, some actors have more “deliberative power” than others. Not everyone is capable of rendering a particular interpretation of the text into a dominant conception of legitimacy. A serious analysis of the concept of legitimacy must, then, account for the way in which power asymmetries among the members of the interpretative community shape the deliberative process.
