Discussion Following Presentations by Helen Keller, Armin von Bogdandy and Daniel Bodansky

Abstract

This was a wonderful series of presentations. I am just going to focus on one issue which Daniel Bodansky raised and try to clarify at least my view on it. This is the relationship between normative and sociological legitimacy. They are fundamentally different conceptually and if we can fuse the two, we’re making a mistake. But they’re linked empirically because legitimacy is a threshold concept, i.e. it’s in the realm of what the philosophers call non-ideal theory. And therefore, to ascertain what the appropriate standards for legitimacy are at any given point in time, one needs to know the conditions of civil society and values and beliefs. Daniel is quite right. The Buchanan-Keohane paper does not demonstrate our view about the sociological conditions. To do so one would need to develop a theory that links the ex ante procedures with ex post results. For example, the theory of democracy does that. It makes the claim that if you follow democratic procedures you will in the long run get better results, even if in any given situation, a dictator might have given you a better policy. So, the theory is that there is a link between the ex ante and the ex post, which connects normative with sociological legitimacy. The objective is to promote a set of standards that are somewhat above current levels. I’m not claiming that people actually follow these standards. But the standards are not so far above the level of behaviour that they’re Utopian or unattainable.