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Justice, Legitimacy, and Self-DeterminationMoral Foundations for International Law$
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Allen Buchanan

Print publication date: 2003

Print ISBN-13: 9780198295358

Published to Oxford Scholarship Online: April 2004

DOI: 10.1093/0198295359.001.0001

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The Legitimacy of the International Legal System

The Legitimacy of the International Legal System

(p.179) CHAPTER 7 The Legitimacy of the International Legal System
Justice, Legitimacy, and Self-Determination

Allen Buchanan (Contributor Webpage)

Oxford University Press

Completes the second part of the book, and relies on the conception of political legitimacy delineated in Ch. 5 to advance a justice‐based, rather than a consent‐based, account of system legitimacy: a set of criteria that the international legal system would have to meet in order to be legitimate. Building on groundwork already laid in Chs 1 and 5, it is shown why, contrary to the dominant view among international lawyers, the consent of states cannot confer legitimacy on the international legal system. In addition, it is argued that it is a mistake to assume that political equality among states is a necessary condition for system legitimacy, and that the international legal system, like any system for the exercise of political power, ought to be democratic. It is also shown that the idea of democratizing the international legal system is an ambiguous one and should not be equated with increasing state majoritarianism in the workings of the system; the charge that the international legal system has a “democratic deficit” is valid, but it is a mistake to assume that the remedy is to make the system conform more closely to the ideal of democracy as state majoritarianism. The eight sections of the chapter are: I. The Question of System Legitimacy; II. The Case for Having an International Legal System; III. A Justice‐Based Conception of System Legitimacy; IV. The Consent Theory of System Legitimacy; I. Moral Minimalism and the Consent Theory of System Legitimacy. VI. The Instrumental Argument for State Consent as a Necessary Condition for System Legitimacy; VII. Is Democracy a Necessary Condition of System Legitimacy?; and VIII. The Pursuit of Justice in an Imperfect System.

Keywords:   consent, consent of states, democracy, democratic deficit, international legal system, international legal system, justice, legitimacy, majoritarianism, Moral Minimalism, political equality, political legitimacy, state majoritarianism, states, system legitimacy

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