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Raustiala and Slaughter 07



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Raustiala and Slaughter 07—(*Kal AND **Anne-Marie, “International Law, International Relations, and Compliance,” UCLA School of Law, 11/8, http://www2.law.ucla.edu/raustiala/publications/international%20law,%20international%20relations%20and%20compliance.pdf)//FJ

Legitimacy Rules By the end of the 1980s, IL scholars were finally off the defensive of the Cold War years. A decade of obsession with 'regimes', coupled with the fall of the Berlin Wall and the promise of a new era of global cooperation, created an opening for a new scholarly focus on the particular properties of law. Speaking for the international legal profession, Franck proclaimed that 'we are in a post-on to logi- cal era' (1992). Freed from the need to demonstrate the existence, much less the relevance, of interna- tional law as law, be set forth a bold argument about compliance and legitimacy (Franck, 1990). Franck's central thesis was that 'in a community organized around rules, compliance is secured - to whatever degree it is - at least in part by the per- ception of a rule as legitimate by those to whom it is addressed' (1988: 706). Despite this prefatory hedging of dependent and independent variables, he presented the theory as a general theory of compli- ance in which legitimacy is the crucial causal factor. The legitimacy of rules exerts a 'compliance pull' on governments that explains the high observed levels of compliance of international law. This notion of compliance-pull, rather than compli- ance itself, is actually the dependent variable of the analysis. Franck defined legitimacy in terms of four elements. Textual dcterminacy refers to the clarity and transparency of the commitment itself. This is not simplicity per.se, rather, the rule must be able to clearly 'communicate its intent' in specific situa- tions. Symbolic validation is the communication of authority through ritual or regularized practice. Coherence refers to consistency in application and in context with other rules. Adherence means the degree a rule fits within the normative hierarchy of rules about rule-making, or secondary rules, in Hart's influential schema (Hart, 1994). Together, these four characteristics determine 'right process'. Right process, by creating the perception of legiti- macy, in turn determines the compliance pull of a rule. Ultimately, the theory claims a chain (or cycle) of causation between right process and state behavior. Legitimacy determines compliance pull, but compliance pull is also the measure of legitimacy. While influential in IL circles, Franck's theory faced criticism from IR scholars: from a rationalist-instrumentalist perspective, the argu-ment is essentially circular (Kcohane, 1997: 493). What distinguishes the legitimacy theory of com- pliance is its focus on rule-making processes, and the qualities of rules themselves, rather than on rational, strategic interaction. While Franck did not explicitly engage the then-emerging constructivist literature, his argument is quite consistent with many constructivist assumptions and insights. The theory of state behavior embedded in legitimacy theory is non-instrumental rather than game theory or bureaucratic politics, Franck invokes theories of legal process and obligation. The recurring image is of international society rather than cooperation under anarchy.



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