Compliance and Legitimacy: Looking Back at Thomas Franck’s The Power of Legitimacy Among Nations
Introduction
The concept of legitimacy has been understudied in international relations theory, and moreover, in the discipline of political science in general. In an interesting book, The Power of Legitimacy Among Nations, Thomas Franck tried to fill this analytical gap by investigating the significance of legitimacy in international relations, in particular in issues concerning compliance. For Franck, legitimacy is the missing link to solve the international legalist’s puzzle: Why are rules obeyed or not? (Franck 1990: 7). But Franck approached the study by turning rationalist and legalist arguments on their heads, critiquing “an ontology that [gave] actors priority over rules” (Hasenclaver, Mayer and Rittberger 157). Franck might be described as a strong cognitivist or a social contructivist instead, approaching the study of IR by examining the influence of principles and norms in international society. This paper will examine in detail the concept of legitimacy and furthermore situate his book in light of other works on compliance. In doing so I argue that although Franck’s book is an important reminder of how legitimacy operates in the international environment, recent studies have raised questions about compliance that Franck’s book fails to answer
Legitimacy and Compliance Pull in IR
In a review of Franck’s book, Martti Koskenniemi remarked that legitimacy is inherently difficult to study because “we do not know whether is exists as a property of rules, psychology or behavior” (Koskenniemi 1992: 175). Realists, Franck observed, would have little use for the concept because obedience based on legitimacy would be a sign of weakness (Franck 1990: 4). The positivist school of thought, identified with John Austin, defined law as the enforcement of a sovereign to a subject (Franck 1990: 10). Without the sovereign, rules would not be obeyed (Franck 1990: 185). Franck sympathizes with this critique and spends much of the book developing a defensible definition of legitimacy since rationalists and legalists have argued that the legitimacy factor’s existence is “unprovable” [sic] (Franck 1990: 19).[1] Nevertheless, Franck believes international “law” in the sense many have previously conceived it to be also unprovable.[2] International “law,” unlike domestic law, has less legal ramifications and is guided more by the “house rules of the club” than the sovereign (Joiner 1992: 283).
Franck drew insights from Weber, Marx and the procedural-substantive school with respect to legitimacy. Weber’s contribution is the aspect of “belief” to legitimacy. Drawing on his categorization of regimes as traditional, charismatic and legal-rational, Weber argued that what tied all of these regimes together was the extent to which the subject population “believed” their leaders had the right to rule over them (Weber 1978: 113). Marxists and neo-Marxist theories spurred the Weberian notion and instead suggested that legitimate regimes brought about “just” outcomes and must be defended on the grounds of equality, fairness and freedom (Franck 1990: 18). The procedural-substantive school, generally associated with Habermas, argued that legitimation occurred through a discursive validation whereas the “procedures and presuppositions of justification are themselves…the legitimating grounds” (Habermas as cited in Franck 1990: 17).
Ultimately Franck thought each definition was too arbitrary and lacked the nuance it required. Also these definitions focused exclusively on domestic, or national, political systems. He hoped to explain legitimacy at the international level. Thus, for Franck, legitimacy was “ a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process” (Franck 1990: 24). Although Franck pays some homage to Weber in this definition, he more reflects the cognitivist orientation, relying less on process and procedure, and more on notions of societal principals and norms to explain legitimacy. Franck’s understanding of international politics closely resembles Hedley Bull’s in this sense. Despite Bull’s “philosophical realism,” his contribution to IR, the society of states argument, resonates. The society of states are a group of states cognizant of certain common values that form a society based on these values and a common set of rules (Bull 2002: 13).[3]
Franck’s definition of legitimacy, prima facie, makes little more sense than other definitions. It is with an examination of four properties of rule-legitimacy —determinacy, symbolic validation, coherence and adherence — that highlight the differences between the previous definitions and Franck’s international one. First, determinacy refers to the literary property of a rule, or “that which makes its message clear” (Franck 1990: 52). Second, symbolic validation takes place when a rule-making process or institution uses cues in order to gain compliance with a command. For example, a symbolic cue could be a song or act, like the national anthem (Franck 1990: 92). Symbolic validation also dealt with ritual and pedigree. Ritual is marked by ceremony, like the swearing in of the U.S. President, or other annual or semi-annual events that reflect a validation of compliance to rules. Pedigree acknowledged an aspect of tradition “emphasizing the deep rootedness [sic] of the rule or the rule-making authority” (Franck 1990: 94). In other words, the compliance pull depended on the historic origins of a rule or rule-making institution. Third, the legitimacy of a rule or rule-making institution depends on the rule’s coherence. Coherence, put simply, is the degree to which a rule was applied coherently and consistently (Franck 1990: 142). Coherence, as well, provides a connection between a rule and the principles used to resolve compliance problems (Franck 1990: 148). Lastly, adherence refers to the degree to which secondary rules — the ways rules are made or interpreted — adhere to a primary rule of obligation (Franck 1990: 184).
Franck spends most of the book fleshing out legitimacy in hopes of answering the question he posed in the first chapter: Why do nations obey rules? Clearly, Franck does not think the realist or Austinian schools can answer such a question. Both schools of thought believe that disobedience to international “law” is the norm (Franck 1990: 7). But Franck, drawing on the work of Louis Henkin, argued that states generally observe and obey the principles of international law almost all the time (Henkin as cited in Chayes and Chayes 2001: 249). This is what was so intriguing for Franck. Given that international politics is so unique from domestic politics, the occurrence of habitual state behavior and obligation, in the absence of a sovereign, seemed to open the way for an answer to this puzzle: legitimacy. For example, the refusal of the United States to enforce a naval blockade on a shipment of Chinese missiles en route to Iran placed the principals of the international system ahead of the strategy of U.S. policy (Franck 1990: 3-4).
Critiques of Franck’s Case
Franck’s book elicited a number of positive responses from reviewers when it appeared in 1990. Koskenniemi suggested that Franck’s book pointed out that the international system was far from the “positivist-ideal types of rule application and violation” (Koskenniemi 1992: 176). And reviewer Christopher Joiner remarked that Franck’s book was a “lucid, and profound study” that deserved the attention of scholars and students alike (Joiner 1992: 284). Of course, Franck’s work is not without flaws. First, although meant to address a question dealing with issues of rule compliance, Franck spends much of the book creating a theoretical framework from which to explore legitimacy at the international system. The compliance issue is discussed at only a cursory level. Several essays on compliance written after Franck’s book appeared draw different conclusions on why states obey.
For example, in an influential article by Victor and Raustiala, they argue that high compliance is not a sign that commitments are influential (or symbolic or legitimate), but instead reflect that states join agreements they already know they can comply (Victor and Raustiala 2001: 662). Chayes and Chayes suggest that compliance can be greatly improved by creating better treaties that have less ambiguous language and allow parties to better carry out their responsibilities (Chayes and Chayes 2001: 250, 260).[4] (In other words, tweaking the legal document increases compliance). And Downs, Rocke and Barsoom critique many in the managerial school, and other compliance scholars, for ignoring the notion that enforcement is often a necessary measure to combat noncompliance (Downs, Rocke and Barsoom 2001: 298). Put simply: states disobey more than prior scholarly works presumed. When they do, what enforcement measures ought to be taken?
Two, although Franck’s analysis of legitimacy is thorough and interesting, I am not certain engaging legitimacy — creating a rich definition with several “properties” — actually is needed to explain why nations obey. Sociologists John Meyer, Richard Scott and Brian Rowan in their work on organizational theory believe that legitimacy exists, but they are less certain that the legitimation process is as complicated or necessarily profound as Franck suggests. In their discussion of isomorphism, they have shown that states seem to adopt similar patterns of institutional development despite varying histories, cultures and political and social climates (Keck and Sikkink 1998:33). Often times institutions and organizations are recreated or sustained despite glaring inefficiencies in the institutional pattern (Meyer and Rowan 1992: 20). Whereas Franck takes members of the international society as serious actors – examining the rule’s normative and legitimate content – Meyer and Rowan suggest that participants think very little before they act, instead following the aforementioned, traditional approach simply because that’s the way it has always been.[5] In such a case, legitimacy is little more than Weber’s “traditional” claim some one-hundred years before.
Conclusion
Thomas Franck’s The Power of Legitimacy Among Nations, illuminated various insights into why states (or nations as he calls them) obey, or are obligated to, rules. For Franck, the compliance pull was the legitimacy of those rules – its determinacy, symbolic validation, coherence and adherence. Franck spends much of the book explicating his notion of legitimacy. On the one hand, by the time one is done with the book Franck has convinced the reader what legitimacy is and that it probably matters. On the other hand, Franck’s attention to the question, “what is legitimacy,” fails to answer his initial question, “why are rules obeyed?” Instead, Franck’s book becomes a descriptive text about legitimacy, not a text that explains compliance in the world of international relations. More recent critiques by Victor and Raustiala, Chayes and Chayes, and
[1] Of course, Franck realizes that he cannot “prove” legitimacy exists by basing his work on the assumptions of rationalists or legalists.
[2] Throughout the book, Franck always quotes “law,” emphasizing that domestic law is very different for international “law”.
[3] Oddly enough, Franck never cites Bull at all, although there are definitely similarities between Bull’s The Anarchical Society and Franck’s work.
[4] Franck does address Chayes and Chayes concern somewhat by arguing that increasing a rule’s clarity does not guarantee compliance. States do not obey the specific terms of rules, but read into the rule’s “normative” content: why and to whom their obedience should matter (Franck 1990: 68, 85).
[5] Meyer and Rowan are not necessarily different in their approach to studying institutions than Franck would be. They are both congnitivists interested in how social norms affect political or social outcomes. But Meyer and Rowan think the outcome – isomorphism – is more telling than the “cause” – legitimacy or legitimation.
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