Legitimacy and Law-Making Alliances

Claire R. Kelly, Brooklyn Law School

Abstract

Abstract Law-making institutions seek legitimacy to secure compliance with the norms that they generate. In the international setting this quest is made more difficult by the lack of both an identifiable public that international organizations represent and competing normative prescriptions for international law-making. In light of these obstacles, various legitimacy theories attempt to evaluate the law-generating efforts of international organizations. These theories consider whether the organizations are representative, inclusive, procedurally fair, or effective. Law-making organizations that satisfy the legitimacy criteria articulated in these theories can claim legitimacy and expect greater compliance as a result.

Although these theories are helpful, a powerful new phenomenon forces us to reassess international law-making legitimacy and how we evaluate it. International organizations now form law-making alliances with each other in order to tackle complex problems. These alliances claim, and sometimes are credited with, legitimacy derived from the very relationship between the organizations. Any framework that assesses the legitimacy of these alliances needs to approach “derivative legitimacy” by examining that relationship. A framework must also address the particular concerns raised by these alliances, including marginalization, entrenchment, false legitimacy claims and abuse.

This article suggests that derivative legitimacy should be evaluated by examining whether the international law-making alliances employ good procedures. Although process is not a perfect assessment tool, it is best suited to ensure that the relationship between law-making alliances fosters inclusion and effectiveness. Good procedures also ward against the negative consequences these alliances generate. Although the necessary procedures will depend upon the particular organizations involved and their goals, the available procedures include: participatory mechanisms (such as notice and comment procedures), transparency procedures, rules against corruption, and rules requiring explanation.