Applying Different Concepts and Conceptions of Legitimacy to the International Level: Service, Free Group Agents, and Autonomy

1 Introduction

International institutions are currently facing severe scrutiny of their legitimacy. Some commentators even argue that the liberal international order based on multilateralism is perhaps under greater pressure than ever before (Lake, Martin, and Risse 2021). These challenges to international institutions’ legitimacy have different sources, including nationalist and populist movements as well as non-Western states. Whether such critiques have merit is difficult to assess for at least two reasons: first, due to the vast differences in purposes and institutional structures of international institutions; and second, because it is often unclear what is meant by legitimacy beyond the state.

The core topic of legitimacy theories in political philosophy, political science, and jurisprudence has traditionally been the state (Hart 2012; Hobbes [1651] 1962; Kelsen [1960] 2017; Locke [1689] 2003; Rawls 1993; Raz 1986; Rousseau 2002; Weber 1964). Only recently has the issue of legitimacy of international institutions – that is, their legitimate authority or political power – gained traction (e.g. Adams, Scherz, and Schmelzle 2020; Besson 2014; Buchanan and Keohane 2006; Christiano 2012; Scherz 2021; Tasioulas 2010). Yet, there is also still disagreement over key conceptual questions around legitimacy. This is evident, for example, in Arthur Applbaum’s latest book Legitimacy: The Right to Rule in a Wanton World (2019), which presents a novel and convincing concept of legitimacy through a power-liability account that understands the right to rule as a normative power. It also outlines a free group agency account of legitimacy that describes the condition under which rule is legitimate. However, it is unclear whether Applbaum’s approach can be applied to international institutions and whether it is useful for determining appropriate legitimacy standards for them.

The aim of this paper is twofold: First, on the concept level, it shows that conceptualising legitimacy as a normative power is indeed useful for our understanding of the legitimacy of international institutions. The paper does so by first examining different concepts of legitimacy, amongst them Applbaum’s power-liability view. Second, regarding the normative content of legitimacy assessments, it seeks to provide clarity on how different normative legitimacy conceptions can determine legitimacy standards for international institutions. In this regard, it critically engages Raz’s service conception and Applbaum’s free group account. As an alternative to these, it proposes an autonomy-based conception of legitimacy. It argues that this conception relies on three fundamental aspects that need to be included to address the legitimacy of international institutions. These fundamental aspects of legitimacy are: the political power, the purpose, and the institutional relationships of the institution. The paper then illustrates how the creation of an international institution and in particular state consent as a standard for this creation bears on legitimacy assessments of international institutions. This paper contributes to the growing literature on the legitimacy of international institutions by showing how the power-liability concept can be applied to these institutions and what kind of questions arise in doing so. It also provides an autonomy-based conception that shares certain features of Applbaum’s free group agency account but that is better suited for the international realm.

2 The Concept of Legitimacy for International Institutions

How does the concept of legitimacy apply to international institutions?^[1] For a long time, applying the concept of legitimacy to international institutions has been seen as a conceptual mistake. The links between legitimacy, coercion, and the absence of coercive means at the international level were the main reasons for this. Since it was assumed that a large degree of obedience results from the coercive power of the state, what needed to be justified was coercion. Yet, as Franck observes, in the international realm law is generally not backed by coercive means. Nevertheless, ‘some, indeed many, international rules of conduct are habitually obeyed by states’ (Franck 1990, 20). Thus, legitimacy can be defined as a normative quality that generates a pull towards compliance which is not motivated by the threat of coercion or short-term self-interest. In fact, this lack of coercive means makes international institutions an interesting and perhaps an even better case through which to study the relevance of legitimacy. On the sociological side of legitimacy, the lack of coercive means explains why international institutions are even more dependent on their perceived legitimacy than state institutions. The critique raised about the legitimacy of international institutions, however, concerns a deeper normative issue, namely, that they are committing a wrong, rather than that they fail to generate certain beliefs and compliance. What this wrong consists of, whether international institutions commit such a wrong, and how it can be alleviated needs to be clarified in order to address questions of normative legitimacy.

So, what needs to be legitimised? What is it specifically about the behaviour of international institutions that needs justification? Legitimacy has often been characterised as the ‘right to rule’. But what exactly does ‘rule’ entail? First, in many traditional accounts of legitimacy, the concept applies to coercion (e.g. Blake 2001; Locke [1689] 2003). The reason why institutions that wield political power need to meet standards of legitimacy is grounded in the fact that this power includes the coercive means to enforce their directives. Legitimacy is thus necessary to justify the prima facie wrong of coercion. Yet, despite the fact that international institutions do not generally exercise coercion, their influence and structures nonetheless face public and academic scrutiny.

The core of some criticisms against international institutions may be better grasped by the second concept of legitimacy as the ‘right to rule’ that applies to practical authority (Raz 1986, 21). Here, the question is whether compliance with an institution’s rules is normatively demanded, irrespective of whether it has the coercive power to enforce them. Authority can be understood as providing content-independent and exclusionary reasons for compliance (e.g. Raz 1986). A reason for an action is content-independent if it is not connected to the content of that action. If an authority commands a particular action, its ‘saying so’ is a content-independent reason for action; other such reasons are promises and requests (Raz 1986, 35ff.). Exclusionary or pre-emptive reasons are second-order reasons that exclude at least some of the first-order reasons against an action. An authoritative directive provides exclusionary reasons that are not added to the reasons for or against the required action but replace some of them (Raz 1986, 46). Specifically, rules and decisions are intended to serve as exclusionary reasons, which is why authority is crucial for political institutions that seek to set binding rules and make decisions for others. Another distinctive feature of legitimacy as it applies to authority is that the right to rule is taken to entail a corresponding duty to obey (e.g. Raz 1986; Tasioulas 2010).

Third, several authors have proposed that legitimacy should be understood in a Hohfeldian (1917) sense as a moral power (right) or, in other words, via a power-liability account instead of a claim right with a corresponding duty to obey. In this view, legitimate authority consists in justified moral power (e.g. Applbaum 2010; Christiano 2012; Enoch 2014; Reglitz 2015) that changes normative relationships of its subjects such as rights and duties. In this case, there is no corresponding duty owed to the government, but rather a liability to have these relationships changed. This power-liability account has recently been elaborated in detail by Applbaum (2019). In his view, this concept of legitimacy falls between the conception of legitimacy as the justified use of coercion and that of legitimate authority as generating a moral duty to obey. He argues that ‘legitimate authority is a moral power (which is more than mere permission) to create moral liabilities (but not necessarily moral duties)’ (Applbaum 2019, 44).

In contrast, Raz’s account of legitimate authority relies on content-independent exclusionary reasons that result in an obligation to obey. One problem is that this seems to overstate what the law can require of its subjects. Some have argued that legitimacy should rather be seen as weighty reasons for compliance and noninterference, not as an obligation (e.g. Buchanan 2010). It is important to clarify what Raz means by obligations: there are, in his view, categorical reasons for action that are protected by exclusionary reasons. This means that at least some of the competing reasons to act differently are excluded, yet others are not. Therefore, exclusionary reasons are not necessarily conclusive reasons. The worry that Buchanan, for example, has regarding this view, namely, that these demands are too stringent – it generates all-things-considered duties instead of pro tanto duties – cannot be supported by the conclusiveness of exclusionary reasons and obligations in turn. Rather, Raz’s account is attractive because it does not describe exclusionary reasons as weighty but as second-order reasons that protect the first-order reason from other competing reasons. This captures more closely how the law is intended to function.

However, the feature of exclusionary reasons themselves can be problematic. First, it is questionable whether the complete exclusion of valid reasons from our deliberation of what to do can be warranted (e.g. Perry 1989). In particular, if we understand citizens as makers not just as passive takers of the law, restricting them to such an uncritical attitude towards the law is problematic.^[2] Second, it raises a serious question of which reasons are excluded. On Raz’s account, these are the reasons that the authority was meant to consider for its directive. It seems implausible that the law should cover all moral consideration. This would allow the account to be much more permissive in certain exceptional cases, as it would be responsive to conflicting moral reasons. For example, this would cover attenuating circumstances if someone stole food when they were starving. However, the account still has problems to explain why it is not a moral wrong to jaywalk in a deserted area or to overstay the time of a parking limit (Applbaum 2019, 58f.). In this case, the excluded reasons are not moral but exactly the kinds of reasons of convenience and ordinary preference that are meant to be excluded by the account. Finally, and most importantly, it provides an attribution of morality to fallible political institutions. While Raz argues that states do not have all the authority they claim to have, if states have authority, in this view, this translates into a moral obligation. The power-liability account provides a much more nuanced account of how to allocate morality in our relationship to the state and to others. The main argument that speaks for the power-liability view is the conceptual space it opens up between the political (including legal) and the moral. This allows for justified civil disobedience since it does not conceive of our legal obligations in a legitimate system as (fully) moral (Applbaum 2019, 46).

For Applbaum’s account it is important to specify what is meant by liability. Is it just that one is liable to be punished if one does not comply with legitimate rules? So is it just a positivist understanding of law, in the sense that legal obligations are not connected to morality? No. It is more than just a privilege to create and enforce institutional rules. The power-liability account holds that legitimate authority is the normative power to change normative relationships of those subject to it or, as Applbaum calls it, their moral status (2019, 52). The liability of the subjects means that they have ‘no moral immunity against the loss of legal rights and the subsequent detrimental exercise of privileges by others, or the imposition of legal duties and their enforcement, and this limits the sort of justified complaints the subject can make’ (Applbaum 2019, 49).

There are two important aspects of this that I would like to expand on: First, changing these institutional relationships is an exercise of power that needs to be justified even if it is not coercively enforced, because they affect the available opportunities of their subjects in nontrivial ways (Scherz 2021). In other words, institutional relationships affect moral rights and privileges (Applbaum 2019, 52). Second, legitimate authority, according to this account, creates an institutional obligation but not a moral obligation to obey. Applbaum describes them as not fully or not yet moral. But what does this mean for the appropriate up-take, that is, the behaviour that this demanded from the authority’s subjects? Can we think of political and legal obligations as something other than moral obligations without falling back into a positivist understanding? I take it that the political realm creates normative reasons which are distinct from general morality. If that is the case, the helpful idea of legitimate authority generating content-independence and exclusionary reasons can be upheld. This would mean that political institutions are in fact not supposed to consider all moral reasons. Therefore, political obligations are of normative importance and exclude some other reasons; however, they are not all-things-considered moral obligations but rather pro tanto obligations. To be clear, this is contrary to Raz’s understanding of the obligations that legitimate authority creates. Instead of seeing this as a flaw, it should be embraced as a more nuanced understanding of how we ought to respect political institutions and the rules they produce. First, for public authority to be able to provide their services, they need to be respected and have their rules followed, but not uncritically. Under this conception, citizens are able to question the fairness and justice of laws. Second, this allows for different degrees to which different laws need to be respected. While the pedigree of laws – in particular the respect for fellow citizens in a democracy – creates a general baseline for compliance and no right for complaint in case of punishment, the idea that different (but not all) reasons were meant to be considered by the lawmaker allows for differences in different legal areas. For example, the otherwise perplexing case of moral obligations not to jaywalk dissolves if we consider the underlying reasons for coordination and safety.

Now, which of these concepts of legitimacy is appropriate to assess the legitimacy of international institutions? For international institutions, it is clear that the focus on coercion cannot capture what is normatively problematic in the way they exercise power through rule setting and influencing the available options for their subjects. But does it make a difference whether we understand their legitimate authority as creating a corresponding obligation or a liability? In certain regards, the difference between the two concepts of legitimacy seems not so great: the moral power that is involved in Applbaum’s view is a general power to create and enforce a nonmoral normative order, in other words an entire legal system. This is very demanding – potentially as demanding as being bound by a moral duty to obey.

To assess whether the power-liability account is appropriate for the international level, we need to understand more clearly what it means to have a duty to the institutional system as a whole. First, and most importantly, this conception of legitimacy transforms our understanding of the normativity at stake here. It establishes the limits of political authority. There are moral reasons to respect the bindingness of a political and legal order, as it protects everyone’s freedom; however, the order itself is only legally binding if it is created in a politically legitimate process. Forst (2022) describes this as a principle of transformation that is essential for legitimacy. From a Kantian perspective, it is important to distinguish between this legal form of external laws and the internal moral grounds, so as not to over-moralise the function of laws and politics. The conceptual clarity of understanding legitimacy as a moral power involving the liability of those subjected to it to have their normative relationships changed, not a moral duty to obey, is also useful in the international realm.

Second, for the legitimacy of international institutions, this concept raises the difficult question of what the institutional system as a whole is. This seems much more unclear on the international level than on the domestic one. We tend to think of states as unified institutional structures, while international institutions, such as international law, or international organisations, such as the WTO or the ICC, seem to be much more connected and dependent on other institutions. Here, two issues come to the fore: first, vertically, even though one can delimit certain international organisations by reference to their founding treaties, their member states are an integral part necessary for their functioning, financing, and compliance with the organisation’s rules. Second, horizontally, international institutions and organisations also depend on other international institutions, in particular on international law, such as the Vienna Convention on the Law of Treaties. In this sense, the system that we are considering in the international sphere is more interconnected and its legitimacy is influenced by the legitimacy of the other parts. Buchanan (2011) has referred to the mutual dependence of member states’ and international institutions’ legitimacy as reciprocal legitimacy. I will call the broader phenomenon of legitimacy interdependency between member states, international institutions, and amongst international institutions themselves relational legitimacy and will return to this issue in Section 2.3.

Similarly, Adams (2023) proposes that we can distinguish different international institutions by ascribing a specific function or purpose to them by using a causal-role theory of functions. He argues that this requires situating them in a broader containing system. In Adams’ view, the state system is the containing system for both states and international institutions. In this sense, international institutions may not actually be so different from domestic ones. This means that we may not be able to separate international institutions strictly from others, but we can still distinguish them as functional systems (which are situated within and connected to others) and attribute a moral duty to these systems.

Beyond the conceptual question that defines what legitimacy is, the normatively more important question pertains to the criteria under which legitimate authority can actually be exercised. In the next section, I will analyse how different normative conceptions of legitimacy that define such criteria, fare on the international level.

3 Different Legitimacy Conceptions: Service, Free Group Agency, Autonomy-Based

International institutions vary widely in their aims and institutional setup. It is therefore not surprising that the allocation of legitimacy standards for international institutions often occurs in a rather unsystematic fashion. Frequently, legitimacy studies focus on a single specific international institution (e.g. Føllesdal and Hix 2006; Howse and Nicolaïdis 2003) or they are minimalist, proposing a baseline level of outputs, human rights, or transparency (e.g. Buchanan and Keohane 2006; Majone 2000; Ratner 2015). This stands in contrast with the legitimacy requirements for domestic institutions, since for states, democracy is generally presumed to be the gold standard (Brinkmann 2023).

Broadly speaking, we can distinguish between two different kinds of legitimacy standards, namely, procedural and substantive (e.g. Ceva and Calder 2009).^[3] This distinction also largely overlaps with the well-known distinction of input and output legitimacy for the legitimacy of international institutions (Scharpf 1999). Yet, while some argue that only procedural-input or only substantive-output standards matter, many accounts propose hybrid standards (Brinkmann 2023). We see this in the debate about democratic theory (e.g. Christiano 2004) but also with regard to international institutions. For example, Elsig (2007) argues that the WTO should balance input and output measures. Buchanan and Keohane (2006) propose a complex legitimacy standard for global governance institutions that relies, on the one hand, on minimal moral standards (in particular human rights) and comparative benefits and, on the other hand, on accountability and transparency. However, it remains unclear why a certain institution, for example the WTO, should rely on specific output or input standards. To assign legitimacy standards systematically, not only a clear concept of legitimacy but also a specific normative conception of it is necessary. In the following, I will discuss three different conceptions of legitimacy: first, one of the most prominent conceptions, Raz’s service conception; second, Applbaum’s free group agent account; and third, what I call the autonomy-based conception. The aim is to outline the differences between these conceptions and to evaluate how they can be used on the international level.

4 Creation of International Institutions as a Legitimacy Concern

Applbaum argues in his free group agent account that all foundings are forced and that this is not an impediment to the legitimacy of a state; rather, in some cases it is necessary to force a people to be free (Applbaum 2010, 73ff.). Yet, the creation of an institution is part of its legitimacy, much in the way that it is relevant for justice. For example, the annexation of a state is generally a problem for its justice even if it produces distributive justice. For legitimacy, this is relevant as legitimacy judgements allow us to coordinate through institutions, which enable us to work towards justice (Buchanan 2008). If these institutions are created in a problematic way, this may undermine their ability to secure autonomy. Does this mean that forced foundings can never lead to legitimate institutions? No, under certain circumstances the injustice of the creation may be superseded (Meyer and Waligore 2022; Waldron 1992). However, against the background of an autonomy-based legitimacy theory, the question is whether the creation of an institution undermines the autonomy of those subjected to it. Institutions that have been created through oppression or domination, for example in the case of colonial states, can be thought to make autonomy as a form of self-determination impossible, as they lead to the alienation of (at least) certain groups (e.g. Stilz 2015). This means that such an origin makes an institution intrinsically opposed to the autonomy of its people(s). While it is possible that groups that were subjected to such historical injustice recognise the state as their own, thereby enabling their autonomy and gaining legitimacy over time, this history is still corrosive in many cases today (e.g. Lu 2017; Spinner-Halev 2007).

Legitimacy as a nonideal concept that allows working towards justice can nevertheless leave some room for relaxing the creation standards if the purpose of the institution is of high importance. Yet, an additional instrumental consideration needs to be made. Given that legitimacy is meant to provide action guidance of how to behave towards an institution, were legitimacy obtained even if an institution was created in a questionable way, this might lead to the creation of more institutions in that manner because they are expected to generate liability with their rules. In other words, assigning legitimacy to institutions with objectionable origins can lead to a moral hazard, which should, of course, be avoided. Therefore, some nonideal considerations might be allowed for, but if legitimacy is about protecting autonomy, these standards cannot be completely relaxed. In this sense, the adherence to at least negative standards, such as the prohibition of annexation, for the creation of institutions is a presumptive precondition for their general legitimacy.

So, what is the appropriate standard for the creation of international institutions? Kant already distinguished between the creation of a civil condition on the domestic level – that is, states – and the establishment of such a condition on the international level. For Kant, forcing others into the civil condition is famously justified because only in the civil condition can an omnilateral point of view be created and therefore justice be realised. So, forced foundings may be unavoidable in the case of individuals. However, the violent and oppressive past of colonialism is a stark warning against forcing others to be free in the case of peoples and what I have referred to as potential peoples. The analogy between individuals and states does not hold for Kant because ‘as states, they already have an internal legal constitution and have thus outgrown the coercions by which others subject them to a broader legal constitution according to others’ conception of right’ (Kant [1795] 2006, 80 (8:356)). While the interpretation of Kant’s position with regard to international politics is highly controversial (e.g. Kleingeld 2004), the disanalogy stated by Kant should give us reason to question under which circumstances it is permissible to force a state into an international institution. Therefore, with regard to the creation of international institutions, more stringent standards, such as state consent, should be required.

But what legitimacy standards are available for the creation of international institutions? Because we are addressing the creation of institutions, it is difficult to apply democratic standards, as this would require already existing procedures and therefore an institutional framework. A similar issue arises for instrumental service standards since it is difficult to reliably judge what kind of benefits an institution will create before it exists and for the publicity issue that has been discussed above. Under international law, international institutions are generally established through state consent. So, states are largely bound only by international institutions they have consented to. Yet, state consent has often been criticised as a normatively questionable standard that reinforces the power asymmetries in the international system and relies on regimes that are not accountable to their own citizens.

There are several normative issues concerning state consent and consent in general. First, consent in general can only be used in a situation in which a person is morally at liberty to give consent. With regard to directives of reasonably just states, this liberty seems to be highly restricted and can therefore not contribute much normatively to the legitimacy of the state’s authority. Second, consent is thought to create accountability of the power holder towards the consenter, which mainly serves the protection of autonomy. However, the consent of citizens or its absence does not seem to make any difference for the accountability of the state (Christiano 2012, 383–4). On the international level, consent and its withdrawal from states is, however, important for the functioning of international institutions. Third, only democratic states can be understood to consent on behalf of their citizens and to create content-independent reasons for them. However, this should not lead us to think that only the consent of democratic states is normatively relevant as, for reasons of self-determination, other considerations such as an established rule of law might be sufficient (Waldron 2006). The fact that an institution respects states equally by relying on their consent for its creation is a content-independent reason to comply with the rules of that institution, both for states that have consented (and their citizens) and other states. Fourth, the fairness of state consent is not given under the strong power and resource differences between states (Christiano 2012). Regarding autonomy and self-determination, the third and fourth considerations are particularly relevant and need to be balanced against each other.

Taking these considerations into account, under what conditions is state consent a normatively relevant standard for the formation of international institutions? Primarily, it is important to keep in mind that Kant’s discussion concerns the formation of a federation, either a state of states with coercive powers or a voluntary league. However, institutions with different purposes and less far-reaching competences might require less demanding creation standards. In particular, this applies to highly important or, as Christiano (2012) calls them, morally mandatory aims and restricted competences. This means that, under such circumstances, state consent is not a necessary requirement for the legitimacy of an international institution if it has morally mandatory aims, such as the restriction of global warming or the alleviation of global poverty. On this basis, Christiano argues that since there is uncertainty about how to achieve these aims, this speaks for a system of state consent because it allows for a significant amount of experimentation in how to solve the problems. However, ‘when a state refuses to participate in a cooperative venture for the pursuit of morally mandatory aims and has no adequate explanation, it may be subjected to some kind of sanction or coercion’ (Christiano 2012, 389). To conclude, for the creation of international institutions, unlike on the domestic level, (state) consent is an available procedural standard that can contribute to legitimacy. While the standard is problematic due to the highly unequal background conditions in the international system which may in parts not allow for genuine consent, it should still be seen as protecting political autonomy in the form of self-determination to a certain degree. Therefore, the standard may be overridden depending on the moral importance of an institution’s purpose. Nevertheless, there should be a presumption for state consent contributing to the legitimacy of international institutions.

5 Conclusions

This paper has argued that Applbaum’s power-liability account of legitimacy is conceptually clearer than the idea of legitimacy as justified coercion and the claim-right view. His account helps us understand the normative importance that the rules of a legitimate political order have and, at the same time, their distinctness from moral obligations to obey. I have argued that this concept also brings much needed clarity to the debate of normative legitimacy. Its application to the legitimacy of international institutions can also be useful to understand legitimacy issues beyond the state. For example, it brings to the fore a new dimension to the question of what the entire institution is to which we owe a moral duty, which is easily overlooked on the domestic level. I have suggested that there are different ways of drawing the boundaries of international institutions, but this question deserves more attention in future research.

In the second part of the paper, three different conceptions of legitimacy and their applicability to the international domain have been discussed: the service conception, Applbaum’s free group agent account and the autonomy-based conception. Interestingly, all three are hybrid accounts that combine substantive and procedural grounds for legitimacy. I have argued that the service conception does not provide a clear way of combining the two or prioritising between them. The free group agent account emphasises the substantive, while the autonomy-based conception emphasises the procedural ones. I contend that Applbaum’s free group agent account neglects the international dimension of freedom or autonomy between peoples and the potential risk of multiple domination. Attributing no normative value to peoples with “impaired” agency or even militarily intervening in unfree states to force them to be free does not overcome but rather introduces an additional source of domination. I have proposed an autonomy-based conception of legitimacy that prescribes the appropriate legitimacy standards of international institutions depending on their political power, their purpose, and their relations to other institutions. Therefore, we should adopt a multilevel understanding of legitimacy that is based on the protection of personal and political autonomy on the domestic level but does not require a full-blown democracy on the international level.