Legitimacy Chains: Legitimation of Compliance with International Courts Across Social Fields

How should legitimacy and authority be conceptualized in the context of global governance, where a growing number of sites for supranational decision-making face a plurality of audiences in multiple social fields, each with potentially distinct standards for evaluating legitimacy? This article proposes legitimacy chains to explain how authority is negotiated between states and supranational decision makers, such as international courts. A legitimacy chain refers to the articulation of justifications that become linked through competitive processes of evaluation across social fields. Different fields require distinct forms of justification to make a valid claim. For instance, a judicial decision's legitimacy is assessed in terms of criteria for legal validity based on "valued" legal knowledge, procedures, practices, and career paths that are constitutive of legal expertise (Bourdieu 1986). However, for international courts, compliance is generally1 a political decision and therefore involves framing legitimacy claims in terms relevant to state power. This requires interlocutors to broker legitimacy claims between fields. Their relative capacities to do such brokering shapes the degree to which legitimacy claims oriented to distinctive social fields are linked into legitimacy chains that can become the basis of legitimate domination over broad, differentiated social spaces.I develop the concept of legitimacy chains through a series of disputes related to zeroing, a method used by governments for calculating when imports are being sold at less than fair market value or dumped. In addition to numerous cases in U.S. Federal Courts, the European Court of Justice, and NAFTA tribunals, zeroing has been at issue in 18 disputes initiated at the World Trade Organization (WTO), comprising a fifth of the overall caseload for the WTO's Appellate Body between 1998 and 2011 (Bown and Prusa 2011). These WTO rulings have been characterized as the "Epicenter of the Revolution" (Cho 2010: 629), "tantamount to 'Constitutional Lawmaking'" developed "under the subterfuge of textual ambiguity of the relevant WTO norms" (Ibid.:624). The United States unsuccessfully defended its use of zeroing and then complied with WTO rulings, despite organized efforts to de-legitimate them by powerful industries and in the absence of significant coercion.2 The case of zeroing thus poses the question of how the Appellate Body constructs and justifies international legal obligations and how compliance occurs without the threat of coercive force. These questions can be addressed through the concept of legitimacy chains, which shows how legitimacy is asserted, validated, and brokered between international courts, national governments, and domestic courts.The zeroing disputes provide an important empirical context to formulate the concept of legitimacy chains, because those disputes involve three neatly distinguishable social fields (international trade law, U.S. politics, and U.S. legal system) and well-institutionalized interlocutors. Choosing a case with these characteristics enables identification of the key dynamics of legitimacy chains and provides insights into how they may differ or fail under different conditions. For instance, the successful construction of a legitimacy chain is likely to vary when distinctions between fields are murkier; when enclaves at the intersection of fields are less clear or nonexistent; or when the role of interlocutor is not deeply institutionalized. This opens a set of empirical questions to ask about other legitimacy chains: how is the institutional responsibility for a response organized? To what degree are the actors responsible for compliance shielded from or vulnerable to pressure from specific organized interest groups? Or, to what degree does the formal process of compliance require engaging with multiple and diverse veto actors? These disputes are also important in substantive terms, as they involved the United States, which has a reputation both for resisting international dictates and for unilateral approaches to trade policy. …