The Power of Legitimacy among Nations

314 Pages·1990·16.65 MB·English

by  Thomas M. Franck

The Power of
Legitimacy
Among Nations
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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
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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.
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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