Posted 2:11 PM by Robert

Illegitimacy II

Demosthenes continues his earlier line of thought, in large measure apparently asserting the legitimacy of non-democratic states from his understanding of international law.

The point of my original posting on legitimacy and international law started from the observation that most versions of international law do consider non-democratic states as capable of legitimacy, which I consider to be an error which rejects universal political principles discovered in the eighteenth century. That's the problem with existing international law that I wanted to address.

Demosthenes is free to disagree, of course, but I am not really sure why he has put so much effort into showing that his version of international law also considers non-democratic states as capable of legitimacy.

Demosthenes also seems to make rather heavy use of an argument that if there is no official authority to make a particular determination, then the determination cannot be part of international law. For example, he seems to feel that the concept of "electoral democracy" is hopelessly undefined unless we know the details of the actual constitution and "who gets to decide this, and why."

However, since there is not now and never has been a set of official authorities making any such determinations in international law, Demosthenes' argument seems to be nothing less than a complete rejection of the very concept. Demosthenes oddly and unsuccessfully tries to skirt the problem by holding his own set of truths to be self evident: "Sovereignty does exist. That isn't in question," he says. Well, excuse me, but I think it is a not only question but an unsupported political conclusion on Demosthenes' part. In fact, in the case of countries that could easily be invaded and their governments deposed, "sovereignty" is virtually a legal fiction.

Demosthenes supports his position by alluding to supposed anarchist positions. But anarchists reject all law - which nevertheless does not seem to tip Demosthenes off to the likelihood that his arguments prove too much, to say the least.

Democratic principles are first and foremost principles of human rights. Indeed, structural federalism itself is bottomed on protection of human rights. But by Demosthenes ' troglodytic approach to international law, "human rights" are as much hopelessly airy-fairy constructs as is "democracy" itself, and should have no bearing on legitimacy. After all, when it comes to defining human rights, what do we mean? Do we mean the American "Bill of Rights?" No. No. No. Those are all too culturally specific by Demosthenes standards. And since we don't know "who gets to decide this, and why," we'll just have to leave that part out and concentrate with Demostenes on whether the dictator has enough power to kill his opponents. But, then, even with regard to the question of whether the dictator has enough killing power, "who gets to decide this, and why?" So many problems!

By his failure to support his assertion, it appears Demosthenes also seems to think that it is a self-evident truth that "if a state is not a member of the UN and not a signatory to its treaties, then the UN has no authority over it, and it need not pay attention to a single word the UN says." Demosthenes may choose to believe such a thing, but it would come as a surprise to the United Nations that its various boycotts and other sanctions imposed against South Africa (which, of course, was not a member of the United Nations at the time) were not supported by international law. And while Demosthenes says that a non-member state need pay no attention to anything the United Nations says, the United nations seems to disagree enough to have promulgated hundreds of actions against non-member South Africa, which that international body thought South Africa had some obligation to pay attention to.

It is also worth noting that the UN did not consider South Africa to be a legitimate state notwithstanding its satisfaction of all of Demosthenes' criteria for legitimacy. And the UN did this largely by citing to the kind of "universal principles" that Demostenes rejects - even dismisses as non-existent. The South African government was excluded from the General Assembly in 1974 when its delegation’s credentials were rejected. It was also excluded from other UN organs and conferences, as well as from most specialised agencies and inter-governmental organisations. Both the General Assembly and the Security Council declared the 1984 South African constitution, which excluded the African majority, invalid. The United Nations defined its objectives as the total elimination of apartheid and the establishment of a non-racial democratic society in an unfragmented South Africa in which all its people would enjoy human rights and fundamental freedoms, irrespective of race, colour, sex or creed. In resolutions adopted by large majorities, it recognised the right of South African liberation movements to resort to armed struggle, declaring that "freedom fighters" were entitled to prisoner-of-war status. Is the point here supposed to be that the UN had the right to do all this under international law because South Africa had been a member at one time, even though the sanctions really kicked in only after South Africa was kicked out? It's hard to imagine even Demosthenes seriously advancing that argument.

Which brings up another point. I have bottomed my discontent with international law, and especially the version that plays at the UN, on its democratic deficit. But Demosthenes asserts a theory of governmental legitimacy so extreme in its rejection of democratic principles that not even the United Nations shares his views, nor do most dictators dare to express such justifications. Not even Hitler and Stalin were as extreme in their rejection of the need to pay at least lip service to democratic principles as is Demosthenes. Indeed, Stalin and most other dictators orchestrated periodic rigged elections to provide their own legitimacy. Even Hitler was elected. Demosthenes says they need not have bothered.

So even the UN and most murderous dictators in modern history have advanced further in their understanding of the importance of democracy to legitimacy than Demosthenes has.

Demosthenes also says he is "rather tempted to declare victory and go home." At least part of that resolution is in order.