The Power of Legitimacy among Nations PDF
Preview The Power of Legitimacy among Nations
The Power of Legitimacy Among Nations This page intentionally left blank THE POWER OF LEGITIMACY AMONG NATIONS Thomas M. Franck New York Oxford OXFORD UNIVERSITY PRESS 1990 Oxford University Press Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Berlin Ibadan Copyright © 1990 by Thomas M. Franck Published by Oxford University Press, Inc., 200 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Franck, Thomas M. The power of legitimacy among nations / Thomas M. Franck. p. cm. Includes biobliographical references. ISBN 0—19-506178-0 1. Recognition (International law) 2. Legitimacy of governments. 3. International relations. I. Title. JX4O44.F68 1990 341.26—dc2o 89-70908 2 4 6 8 9 7 5 31 Printed in the United States of America on acid-free paper In profound admiration and enduring friendship this study is dedicated to Judge Manfred Lochs. His life and work demonstrate that the never-ending search for enlighten- ment can neither be diminished nor contained by the temporal metes and bounds of political fashion. This page intentionally left blank Acknowledgments "I am so fat from being ashamed of having looted any other old and new writers that I even avow that the great part of [this work] is either the result of my reading or of my relations with friends, excluding some . . . examples which have come within my own experience." E. Nys* It has been truly wondrous: three years in another place on the landscape of the mind, far from the madding headnotes and hop- pers brimming with draft bills mewling to become laws. Three years to forage through the granary of our intellectual tradition, yahooing down the temple of reason's vistaed nave. Such respite is a blessed necessity for scholars of international law, as also, I am told, for members of other contemplative orders in which professional self-doubt is an occupational hazard. For a time, those embers can be banked. But extinguished? Never. Twenty years ago, when a teaching novice, I published The Structure of Impartiality. That done, I stopped worrying, let alone writing, about matters of teleology, preferring to concentrate on repairing the machine, tightening a bolt here and there. But the Big Questions will be put off only for a time, then their clamor rises above denial. Unattended things on the back burner have a tendency to scorch. The unpaid debt compounds. The account must be met. * "Introduction" to A. Gentili, De Legationibus Libri Tres (G. Laing trans., quoting Jean Hotman (1552-1639)); reprinted in 2 Classics of International Law 22a (1924). viii Acknowledgments This, then, is my accounting, a. highly personal search for mean- ing in rny chosen field. Of necessity, the search has been solitary. But wonderful companions have provided nourishment along the way. The Filomen D'Agostino and Max E. Greenberg Research Fund of New York University School of Law facialitated two pro- ductive summers largely free of distraction. My colleagues, David Richards and Irene Brown, joined me in teaching an experimental seminar—Legitimacy and Justice in the International System— which served the invaluable function that well-positioned out-of- town tryouts afford the lucky playwright. The helpful comments of Professors Brown and Richards, as also the many ideas and sources to which they awakened me, immeasurably deepened my own understanding. So, too, did the dialogue with that extraordi- nary group of students. Several other persons read all or parts of the manuscript at various stages of its gestation and helped, encouraged, provoked, and sustained my oft-flagging faith. Among them were Judge Man- fred Lachs, Michael Sharpston, Professors Paul Chevigny, Ronald Dworkin, David Kennedy, Theodor Meron, Thomas Nagel, Alfred Rubin, Oscar Schachter, and Detlev Vagts. To each I am truly grateful, as I am, also, to my superb and devoted research assis- tants: Steven Hawkins, Lisa Landau, Michael Nelson, Laurie Oberembt, William Richter, and Scott Senecal. The final chapter of this book is based on an article, published elsewhere, which Mr. Hawkins and I wrote jointly. That experience of co-authorship with a particularly gifted student was another of the unqualified rewards of the teaching enterprise. Finally—and this has become joyously trite in twenty-five years of collaboration—I celebrate the work of Rochelle Fenchel, my administrative assistant, who guided innumerable drafts through the computer maze, rounding up stray footnotes, questioning way- ward form and substance and, generally, cheering me up and on at every season. To be constantly buoyed by her wisdom and spirit is, itself, fully worth the voyage. T. M. F. New York February 1990 Contents 1. Prelude: Why a Quest for Legitimacy? 3 2. The Irrelevance of Law and Non-Law 27 3. Legitimacy: A Matter of Degree 41 4. Determinacy 50 5. Determinacy and the Sophist Rule-Idiot Rule Paradox 67 6. Redefining Determinacy 84 7. Symbolic Validation, Ritual, and Pedigree 91 8. True Cues and Symbolic Validation 111 9. Validation and Coherence 135 10. Coherence and Legitimacy 150 11. Adherence: Legitimacy and Normative Hierarchy 183 12. Community and Legitimacy 195 13. Postlude: Why Not Justice? 208 Notes 247 Index 291
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