Gürkan Çapar

Any theory of legitimacy encompassing a general standard applicable to all kinds of authorities is required to come to terms with the problem of specification and tell us something about how to make this general standard operational. The service conception of authority (SC) is also presented, and hailed, as a general standard of legitimacy, yet it remains to be addressed how it can be applied to different kinds of authorities such as parental, domestic political, and international authorities. There are two different aspects of the specification problem besetting SC. While one concerns specifying the sort of problem an authority is expected to solve, the other pertains to the different meanings that the independence condition may acquire when an individual is subject to the different kinds of authorities such as recognitional, parental, and international. In addressing this second specification question, the article argues that SC needs a moral foundation to give a concrete meaning to the independence condition and find a balance between its two partially contradictory conditions. Raz explains what the independence condition implies for political authorities when he introduces his perfectionist liberalism as an alternative to its anti-perfectionist variant and argues that political authorities are warranted to pursue perfectionist policies and take necessary steps to create the conditions that make individuals autonomous (substantive conception of individual autonomy). However, it is yet to be examined what the independence condition, thought together with Raz’s perfectionist liberalism, implies for other kinds of authorities. The article concludes by making some cursory explanations for the way in which recognitional/international and parental authorities interact with their subjects when they are delivering their services.

There are two primary approaches to understanding the legitimacy of political institutions: sociological and normative legitimacy. Despite the conceptual distinction between these two approaches, it proves challenging to entirely separate the sociological or subjective aspect from the normative or objective account of legitimacy. Taking the service conception (SC) as a normative standard of legitimacy, this article explores whether it pays due regard to the perceptions of legitimacy prevalent in a political community (sociological legitimacy). In doing so, it argues that sociological legitimacy is relevant to political legitimacy in three different ways: (i) methodologically, (ii) consequently, and (iii) circumstantially. While the methodological connection underscores the role that sociological legitimacy plays in concretising abstract moral reasons, the other connections draw attention to the mutually reinforcing relationship between effectiveness and sociological legitimacy. Consequently, the article suggests seeing SC as a normative filter that allows political communities to obey their political authority for non-instrumental considerations, in particular when they perceive it legitimate when it garners their support and is deemed trustworthy.

The rise of populism and its consequences – such as democratic backsliding, the erosion of constitutional principles, and the weakening of the rule of law – are among the most pressing issues facing comparative constitutional scholars today. To address these emerging challenges, the Unconstitutional Constitutional Amendment Doctrine (UCAD) has emerged as the most promising remedy for the “third counterwave of democracy”. However, a fundamental problem with UCAD is how to apply it effectively without undermining constitutional democracy, as it is often criticised and deemed illegitimate from the perspective of democratic principles.

The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, this article aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis.

The recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges.

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law.

The transformation of international law has provoked a burgeoning literature on various conceptual and normative questions, such as the nature and legitimacy of international authorities. Constitutional and international scholars have so far been attracted to domestic normative theories such as constitutionalism, democratic legitimacy, and the rule of law. This attraction often comes at the expense of a more fundamental and prior question: How best to carry out this normative investigation and which normative theory to put into use in assessing the moral value of international authorities? This “meta-theoretical question” invites us to investigate the methodology of transnational constitutional theorizing by prompting discussions on which normative theory is more suitable for application at the international level. This review article brings into dialogue two recently published books (Sadurski’s Constitutional Public Reason and Mac Amhlaigh’s New Constitutional Horizons) that partially address this meta-theoretical question by prompting us to reflect on how best to conduct transnational constitutional theorizing.