Silje A. Langvatn

Science advice bodies increasingly shape public policy. Yet, their analyses and recommendations routinely involve non-epistemic value judgments that sit uneasily with ideals of democracy and separation of powers. We argue that in liberal constitutional democracies the political legitimacy of such judgments can be enhanced by integrating structured proportionality analysis into the workflow of policy-recommending advisory bodies. This deliberative procedure – first developed by constitutional courts – brings attention to policies’ impact on protected rights and amounts to a multi-pronged scrutiny of the justifiability of a policy which infringe on rights. We show, first, that existing guidelines for science advice bodies nationally and in international organizations implicitly acknowledge non-epistemic judgments but under-specify how to deal with them. Second, recent philosophy of science rightly foregrounds the democratic scrutiny of values (and so representation, alignment, and participation) but underemphasizes rights-based constraints. Our proposal reorients advisory practice toward rights-sensitive, deliberative justification that science advice bodies can apply ex ante—where these bodies often possess superior expertise on relevant aspects such as the suitability and necessity of a policy. Embedding proportionality analysis both mid-stream (to shape option generation) and in public justifications (to enable contestation and deliberation across branches and publics) improves transparency, mitigates overreach, and aligns advice with the rule-of-law and rights commitments of liberal democracies. The final part discusses scope conditions, institutional implications and limitations of our proposal. Structured proportionality analysis does not guarantee optimal outcomes, but supplies a stable, recognized method to discipline non-epistemic judgments and thereby enhance the legitimacy of science-based policy advice.

This article aims to explain the protean nature of the concept of “legitimacy,” arguing that its variability largely stems from denoting a quality of institutions that is both internally complex and sensitive to variations in institutional context. While this institutional-context sensitivity often leads to confusion and miscommunication, it is also what centers the concept’s meaning and use. To better understand legitimacy’s different forms of institutional-context sensitivity, and how they are interconnected, the article shifts from analysis and comparisons of concepts and theories of legitimacy to analysis and comparison of specific legitimacy arguments regarding specific institutions. It introduces a structured framework for analyzing legitimacy claims, beginning with the identification of the institutional level that the argument is directed at. This approach highlights how legitimacy assessments vary across higher and lower institutional levels—a crucial aspect of institutional-context sensitivity that has been underexplored in recent institutional legitimacy literature. The framework, comprising four steps of analysis and two supporting figures, advances our understanding of the complex nature of institutions’ legitimacy and underscores the importance of distinguishing between the legitimacy of an institution and the legitimacy within an institution. Throughout, the article illustrates the framework with examples drawn from scholarly debates on the legitimacy of the International Criminal Court.

This article assesses Frank I. Michelman’s constitution-centered and proceduralist interpretation of Rawls’ conception of political legitimacy and argues that it merits attention because it highlights the institutional aspects of Rawls’ understanding of political legitimacy for constitutional democracies. However, the article also questions Michelman’s interpretation of Rawls’ ‘liberal principle of legitimacy’ (LPL) and the later ‘idea of political legitimacy based on the criterion of reciprocity’ (ILBR). As Michelman rightly points out, for the exercise of political power to be legitimate in a constitutional democracy, it must be in accordance with a constitution that is itself legitimate or reasonably acceptable to free and equal citizens. Yet, the article argues that Rawls’ two legitimacy formulations are attempts to make an additional point: Namely that when democratic citizens exercise political power in ‘the fundamental political issues’, or in issues that shape the basic justice of society or the essentials of the constitution itself, they must respect the ideal of public reason – or ensure themselves and other citizens that their exercise of political power is in accordance with the underlying basic political-moral ideas of persons and society that make the constitution itself acceptable to them. The LPL and the ILBR are conceptions of political legitimacy, not in the sense of setting up a criterion for when a specific law is legitimate, but in the sense of outlining civic or “office-specific” constraints that citizens and public officials must put on their reasoning and exercise of political power in the fundamental political issues for the practice of a constitutional democracy to be legitimate, or well-ordered, reasonably just, and stable for the right reasons – in the long run. The article also discusses why Rawls saw the need to reformulate the LPL, and how the later ILBR assigns a new significance to citizens’ actual use of public reason and their intersubjective deliberation.

The article offers a reconstruction of John Rawls views on political legitimacy, from A Theory of Justice to his late writings on political liberalism. It argues that Rawls had three conceptions of legitimacy, not two as one might expect based on the distinction between his two major works. Its argument is that the most radical change in Rawls’ thinking about legitimacy occurs in ‘Introduction to the Paperback Edition’ and ‘The Idea of Public Reason Revisited’. Here Rawls assumes that there can be a reasonable pluralism not only of comprehensive doctrines, but also of political liberal conceptions of justice. As a consequence, the standard of political legitimacy is no longer specified as sufficient justice relative to justice as fairness, but instead as sufficient justice relative to a family of political conceptions of justice – a family which in turn is animated by an ideal of public reasoning about constitutional matters and matters of basic justice. The article also shows how Rawls’ late ideal of public reason is grounded in the need for legitimate constitutional government.

This article assesses recent claims that international courts and tribunals can enhance their legitimacy through public reason. Section one argues that international legal scholars attribute a wide range of meanings to public reason, and goes on to provide clarification of how this range of conceptions, or ideas and ideals, referred to as public reason fits into the dominant and broadly Rawlsian tradition. Section two analyses properties and features of international courts that make public reason normatively relevant. Section three then sketches an ideal of public reason for ICs that suggests guidelines and principles to limit the discretion of judges when reasoning about morally and politically contentious issues. This ideal is designed to address a particular legitimacy concern raised against many new international courts, namely, that they engage in judicial activism, passing judgments on contentious moral and political issues without being sufficiently authorized and accountable. This ideal does not encourage the judges to engage in more judicial review, rather it seeks to restrict the judges' reasoning and judicial discretion when engaging in review and judicial development of the law. The final section compares and contrasts the proposed account of public reason to other adjudicative ideals, both from the general adjudicative accounts of Ronald Dworkin and Cass Sunstein, as well as the more ambitious and cosmopolitan accounts of public reason for ICs offered by the legal scholars Kumm, Sadurski, and Petersmann.