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

AuthorJoseph A. Conti
Publication Date01 March 2016
DOIhttp://doi.org/10.1111/lasr.12181
Date01 March 2016
Legitimacy Chains: Legitimation of Compliance
with International Courts Across Social Fields
Joseph A. Conti
Political and legal globalization brings into question how to best conceptualize
legitimacy and authority in the context of a plurality of potential audiences
with distinct standards for evaluatinglegitimacy. This article proposeslegitimacy
chains, or the articulation of justif‌ications linked through competitiveprocesses
of social evaluation across distinct social f‌ields, as a concept for theorizing
supranational authority. The concept is developed through an analysis of
World Trade Organization (WTO) disputes overzeroing, a method for calculat-
ing import dumping. Thearticle focuses on how the legitimacy work of various
interlocutors enabled compliance despite contested legal validity claims, ulti-
mately enhancing the authority of the WTO as f‌inal arbiter of legitimatetrade
practices.
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 suprana-
tional 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
I am grateful for the editorial assistance provided by Sheigla Averill and the construc-
tive commentary provided by the editors and reviewers at Law & Society Review, Matt
Canf‌ield, Christopher May, Sungjoon Cho, Howie Erlanger, Sida Liu, Greg Shaffer, Erik
Wright, and Moira O’Neil.
Please direct all correspondence to Joseph Conti, Department of Sociology, University
of Wisconsin-Madison, 1180 Observatory Drive, Madison, WI 53706; e-mail: jconti@ssc.
wisc.edu.
Law & Society Review, Volume 50, Number 1 (2016)
V
C2016 Law and Society Association. All rights reserved.
154
international courts, compliance is generally
1
a political decision
and therefore involves framing legitimacy claims in terms rele-
vant to state power. This requires interlocutors to broker legiti-
macy 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, differ-
entiated 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 case-
load for the WTO’s Appellate Body between 1998 and 2011
(Bown and Prusa 2011). These WTO rulings have been charac-
terized 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 legiti-
macy 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
1
This is not always the case, as in “monist” legal systems where international legal
obligations are embedded in domestic law.
2
Twoof the proceedings advanced to the stage of arbitration over retaliation, suggest-
ing the role of threatened economic coercion on American decisionmaking. The magnitude
of retaliatory tariffs was never established, as arbitration was discontinued by agreement of
the parties, but it was likely to be small (Bown and Prusa 2011).
Conti 155
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 organ-
ized? 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 com-
pliance 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.
It also involved powerful interest groups with deep ties to both
major American political parties. Zeroing, thus, had the markings
of a “hard case” for compliance. How the dispute settlement body
handled zeroing, specif‌ically in terms of disciplining what American
trade partners saw as aggressive unilateral trade protection, was a
critical test of the WTO system.
To characterize the zeroing legitimacy chain, I rely on data
capturing rationale s about legitimate action, including interviews
with practitioners, treaty texts, WTO decisions, Congressional
hearings, and Executive Branch documents. These data docu-
ment competing justif‌ications offered by the WTO, two
Presidential administrations, and industry groups about the
legitimacy of WTO rulings and compliance. This is not data
about motivations to comply, rather how the decision to do so
was evaluated and justif‌ied. The f‌irst link of the zeroing legiti-
macy chain is the WTO legal f‌ield and the standards for legiti-
mate action that shape how the Appellate Body makes and
justif‌ies its decisions, particularly its reliance on formalism to
overcome interpretive gaps between WTO agreements and the
practice of zeroing. Co mpliance resulted from the translation of
these legitimacy claims into the legitimacy vernacular of U.S.
politics, the second link in the chain. Finally, as the U.S. govern-
ment defended the policy changes enacted to comply with the
WTO rulings, the effort to legitimize anti-zeroing juris prudence
shifted to the third link in the legitimacy chain, the U.S. domes-
tic legal f‌ield.
In the end, the prohibition on zeroing reshaped the eco-
nomic signif‌icance of U.S. territorial borders, making it more dif-
f‌icult for the United States to protect domestic industries. This
shift in sovereignty did not result from a rational contract,
strong-armed compliance, or consensus building. Nor did it
result from any inherent sense of fairness about zeroing, an issue
central to the dispute in the f‌irst place. Rather, it occurred
through the forging of legitimacy chains, a competitive process of
brokering legitimacy claims across multiple f‌ields with distinctly
156 Legitimacy Chains

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