Legitimacy and rationality in national and international law-making

Abstract

The assertion that the legitimacy of law-making in international law depends on its rationality means more than just maintaining that the rules on the basis of which international norms are created have their own logic. Rather, it hints at the fact that law-making corresponds to a social rationality which is deeply intertwined with a specific idea of the “well-ordered society”. In other words, the procedures through which norms are created depend on what a political community is poised to identify as the rational and justifiable tenets on which social interaction should be based. Within the context of the national political communities, we find two opposite rational justifications of law-making. On the one hand, we have a top-down approach, namely the assumption that a society is only well-ordered if it follows forms of rationality that are superior to the capacity of individual self-awareness. On the other hand, an alternative bottom-up view was developed, according to which the rationality and legitimacy of law-making is guaranteed only on the basis of the empowerment of those who have to comply with the rules created thereby. Each one of the conflicting understandings as regards the fundaments of legitimate law-making within the national context comprises different variants of how the rationality of the well-ordered society is interpreted. Moving on to the legitimacy of law-making in international law, the change of the context in which the nomopoiesis occurs inevitably makes some of the strategies inapplicable that had been developed for the national realm, while others have been explicitly created for the international setting or at least adapted to it. After having highlighted strengths and weaknesses of each variant of rational legitimation of international law-making, the article closes with some considerations about the tension between the request of an adequate legitimacy of international law and the difficulty to realize it in a world in which power politics, far from being neutralized, is always looming large.