Thomas Nachbar (well known to many Lawfare readers – University of Virginia law professor and US Army reservist in the JAG Corps, among other roles) has posted to SSRN a paper originally published last year in the military strategy journal Parameters (Spring 2012), “Counterinsurgency, Legitimacy, and the Rule of Law.” Although much has happened in the year since the article was published, the fundamental theme of legitimacy in counterinsurgency is one that will be around for a long time. This essay offers much to think about on the basic theory of legitimacy and its role in conflict and counterinsurgency. It is relatively short – less like an academic law article and much more a finely written long-form essay. Here is the SSRN abstract:
Law features more prominently in warfare today than in any time in memory. Stories about the legality of detaining “unlawful combatants” or “unprivileged belligerents” in Guantanamo Bay are in the headlines weekly. The current set of conflicts may prove to be the most heavily litigated in human history. The current conflicts have seen an even greater expansion of law’s role in war, though: law as a means of warfare. Both the military and U.S. civilian development agencies have embraced these ostensibly legal activities – referred to generally as “rule of law” – for their contribution to our campaigns in both Iraq and Afghanistan.
Law’s ascendance as a means of warfare is tied to the ascendance of counterinsurgency as a form of warfare. Counterinsurgency, as a contest between opposing groups to be recognized by a particular population as their legitimate government, necessarily places the host nation government’s legitimacy at the center of the conflict. Establishing the rule of law, then, is important to counterinsurgents because of its contribution to a government’s legitimacy. Nevertheless, the counterinsurgency and stability operations doctrine lack both a meaningful definition of legitimacy and a model for how the rule of law contributes to legitimacy. Counterinsurgents are hardly the first to address the problem, though. Questions about how legitimacy and law operate together have long been studied in both jurisprudence and social psychology. The two fields come at the question quite differently, but both offer important insights into what legitimacy means to counterinsurgents and how it can best be built as part of a counterinsurgency campaign.
The theory of legitimacy, it seems to me – glossing Nachbar’s essay – is peculiarly over-used and under-theorized. This is true in several different ways, but one way contrasts international law and international relations. Mainstream political science and international relations – still deeply rational choice and behaviorist, so far as I can tell – has difficulty identifying or theorizing the concept. The Stanford political scientist (and my good friend) David Brady snorted in disbelief at a Hoover Institution discussion when I raised the concept of legitimacy in a national security discussion; when “we tried to operationalize legitimacy” for study, he said, it “didn’t seem to amount, as operational, measurable behavior, to anything other than ‘repeated obedience’ to authority.”
I’d humbly suggest that this purely “transactional” approach under-appreciates, and under-theorizes, the notion of legitimacy by a large margin (and I also appreciate that there are important sub-disciplines in IR that don’t do this). But the problem is, if your method of doing IR or political science is limited to behaviorism – measuring observed behaviors by various actors – then you won’t be able to grasp the core of legitimacy. Whether such a thing “exists” or not, by definition and in its very conception, it is genuinely psychological and internal, a habit of repeated obedience, done from a specific affective condition, viz., an internal belief in the rightness of the authority to which one gives this habitual obedience. This actually has serious real world consequences. After all, if one’s theory of legitimacy lacks this notion of internal psychology, you won’t have a basis for saying whether the actor (or many actors) obeys purely from a fear of punishment in the moment, or does so habitually from a belief in authority and its moral correctness. Moreover, the very distinction between “power” and “authority” depends upon the internal and psychological predicates of legitimacy; mere power becomes authority because power is accepted, internalized, habitualized, and normalized as being “legitimate” and obedience to it accepted as “right.”
The insistence on an internal psychology of legitimacy is more than just academic theorizing, then; and it matters rather a lot to counterinsurgency, given that counterinsurgency seeks to exercise power that becomes at least some recognizable form of authority – legitimate, in other words – in the eyes of a population in the midst of conflict. Seeking to reduce it to mere observed repeated obedience is a recipe for disaster, for the simple reason that no counterinsurgency force can be everywhere at once to suppress and punish disobedience. Nachbar’s essay makes this crystal clear in its discussion of the conditions for the rule of law.
On the other hand, legitimacy is overused in international law; it becomes a promiscuous concept available whenever an international lawyer wants to justify this or that, or explain this or that. Indeed, promiscuous doesn’t quite do justice to its overuse; the fundamental problem for international law seeking to deploy legitimacy as a category is that IL latches onto a concept that is rooted in a genuinely psychological notion – internal to individual psychologies, in the classic social theories, however much Weber, Durkheim, or Marx, for example, might differ on other things. Moreover, it is a genuinely psychological notion that is embedded in an irreducible notion of “society.” But IL’s point of departure is not individuals as such; it is more typically states, and legitimacy in a strict sense is applied only by analogy at the level of states in their interactions with other states, treating states-in-international society by analogy to individuals-in-society. One can get there – to notions of “legal” legitimacy or “political” legitimacy applied to “corporate” enterprises such as states – but it is by analogy and suffers from the limits of analogy.
This was, it is sometimes forgotten, a core concession made by the late Thomas Franck in his pathbreaking work on legitimacy among states decades ago – he forcefully made the point that the application of the theory of legitimacy was necessarily by analogy to states in the international sphere. Later IL theorists, recognizing the problem, have struggled valiantly to make the analogy more than an analogy – to make the international sphere a genuine “society.” One way to do so is to treat states as the vessels of their individual members’ psychologies; this is, I think, simply normative ideal announcing itself as real. Another way is to skip the states as such and look to the individual persons who make up the elites of international life – regard them and their interactions as a “society” to which the concepts of social legitimacy genuinely apply. That seems to me normatively dubious; but it also seems to me quite incorrect as a descriptive social fact, because these individuals become the elites in large part because they are there not as mere individuals, but instead as “fiduciaries” for the societies and states from which they come; and as fiduciaries, they are there to negotiate not social terms, but political and legal ones among societies, not as part of some supposedly “international” or “global” one.
My own view of the “international” realm of states, then, is unsurprisingly encapsulated in the title of a manuscript that I’ve never quite managed to bring to completion – “A politics, not a society.” Meaning by that, legitimacy has a political sense to it, just as it has a legal sense; but its starting points are social and psychological, and its conditions are laid out by social theory in the first place, not legal or political theory. Plitical and legal theories of legitimacy are important, and yet still epiphenomenal – one almost wants to say, indirectly and a touch ironically following Perry Anderson, “superstructural” – upon a social and psychological fact that might, in any given situation, be true of a society. Or not true of it. Nachbar forcefully points out, after all, that it is potentially disastrous to make mistakes about this, especially in the fraught circumstances of counterinsurgency that his Parameters essay describes.
Call it the necessity of a believing “demos”; whether one has “it” or not is a matter of factual description, not in the first place something created by normative invocation alone. Yet “demos” is not the level at which most IL operates; the international sphere is at most a politics, not a society. Brought back down to the level of counterinsurgency, at which Nachbar writes, however, there is a society. In which case the question of legitimacy is just this: whether the “power” brought to bear by the forces of counterinsurgency, as against the insurgents, becomes “authority.” It is both a crucial strategic question and, ultimately, a factual one about the internalization of belief by that society and its members. Unlike the usage of legitimacy in international law, this is not by analogy; it takes place within a society, and it is a question of social fact about the internalization of normative belief.
Expressed in this way, the underlying theory is straightforwardly Weber – or at least it is drawn from social theory in the “conflict” tradition of Marx and Weber. Which seems to me peculiarly suited to the assessment of legitimacy in counterinsurgency and armed conflict. (One final note: The best scholarly starting point for discussion of the concept of legitimacy in international law and politics today is with the trilogy of books by Ian Clark – Legitimacy in International Society; International Legitimacy and World Society; and Hegemony in International Society, all from OUP. These three are superb scholarly discussions – provocative and erudite, and with a wealth of background literature – though Clark would, I think, have disagreements with some of my characterizations above.)