PREVENTING A DECIDUOUS LEGITIMACY
By: Gerald F. Witherspoon, Sr. 20150108
When the state is viewed as a political institution governed by a class of elite rulers, and the ruled are increasingly made aware (through the process of globalization) of international norms proliferated by transnational law, preventing a deciduous legitimacy becomes the biggest challenge to a state’s sovereignty.
A state’s sovereignty is a direct predication of its legitimacy, thus, the term “legitimate sovereignty” illustrates the need for a state to substantiate its sovereignty. Further, legitimacy is an unnerving gesture bringing with it a broad spectrum of test-abilities. That is, legitimacy can be tested in regards to the state’s ability to provide adequate protection to its citizens. It can be tested against a state’s ability to provide adequate justice to victims or its ability to genuinely prosecute crimes within its jurisdictions. All three testing grounds, and there are more, would especially require a legitimate legal system. A legitimate legal system would most assuredly contain legitimate legal mechanisms. The legitimacy of such legal mechanisms could be recognized by the willingness of others to adopt them in foreign domains whilst simultaneously questioning the need to embrace others.
Globalization is synonymous with interdependency within an international community of states where legitimate sovereigns place demands on other members. Such demands require legitimacy especially in the face of “national resistance” and “constitutional patriotism” (Jackson, Tolley, and Volcansek 2010, 258). National resistance and constitutional patriotism derive from a fear that supplanting domestic law with international law or exalting international law above the “supreme law” of a nation-state’s constitution will erode national authority and legitimacy.
Nevertheless, because of the sheer reliance on partnerships and cooperation throughout the international community, it has become increasingly important to act in synchronicity with international jurisprudence (Jackson, Tolley, and Volcansek 2010, 259). The internationalist approach to jurisprudence offered, despite the contention of some, a “fresh perspective on controversial issues” (Jackson, Tolley, and Volcansek 2010, 260).
In opening, I was inclined to use the word deciduous because it is indicative of a falling or shedding away of leaves from a tree on a seasonal basis. Indeed, the shedding of leaves can signal a growth transition, but it can also signal the death of the tree.
Here, we can envision a post-conflict period and a transition to democracy as new growth following an authoritarian regime. Likewise, we can envision a failing democracy as a signal of death to one’s legitimacy, and thus, sovereignty. Both speak to a failure to demonstrate legitimate sovereignty at a particular time.
Globalization has forced states into a season where it is no longer acceptable to ignore the interests of their neighbors. And if the public and political interests of others are enshrined in legal customs, it is not unwise to take note of international standards.
In closing, excessive constitutional patriotism can be ruinous for a state’s legitimacy when it proves bias in international and controversial matters. Likewise, international law places pressure on a state’s legitimacy irrespective of claims to the existence of legitimate domestic legal mechanisms.
Below are two quotes from two philosophers and a link to an article entitled, The American Experiment has Failed which offers further perspective.
To be interested in the changing seasons is a happier state of mind than to be hopelessly in love with spring. – George Santayana
Jackson, Donald W., Michael Carlton Tolley, and Mary L. Volcansek. 2010. Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-border Migration of Legal Norms. Albany, NY: State University of New York Press, 2010. eBook Collection (EBSCOhost), EBSCOhost (accessed January 7, 2015).