The Sources of American Legitimacy

Robert W. Tucker and David C. Hendrickson

From Foreign Affairs, November/December 2004

Summary:  The 18 months since the launch of the Iraq war have left the country's hard-earned respect and credibility in tatters. In going to war without a legal basis or the backing of traditional U.S. allies, the Bush administration brazenly undermined Washington's long-held commitment to international law, its acceptance of consensual decision-making, its reputation for moderation, and its identification with the preservation of peace. The road back will be a long and hard one.

Robert W. Tucker is Professor Emeritus of American Foreign Policy at Johns Hopkins University. David C. Hendrickson is Robert J. Fox Distinguished Service Professor at Colorado College.

AN ERODED IDEAL

The 18 months since the launching of the second Iraq war have brought home, even to its advocates, that the United States has a serious legitimacy problem. The pattern of the first Iraq war, in which an overwhelming victory set aside the reservations of most skeptics, has failed to emerge in the aftermath of the second. If anything, skepticism has deepened. The United States' approval ratings have plunged, especially in Europe-the cooperation of which Washington needs for a broad array of purposes-and in the Muslim world, where the United States must win over "hearts and minds" if it is to lessen the appeal of terrorism. In both areas, confidence in the propriety and purposes of U.S. power has dropped precipitously and shows little sign of recovery.

Legitimacy arises from the conviction that state action proceeds within the ambit of law, in two senses: first, that action issues from rightful authority, that is, from the political institution authorized to take it; and second, that it does not violate a legal or moral norm. Ultimately, however, legitimacy is rooted in opinion, and thus actions that are unlawful in either of these senses may, in principle, still be deemed legitimate. That is why it is an elusive quality. Despite these vagaries, there can be no doubt that legitimacy is a vital thing to have, and illegitimacy a condition devoutly to be avoided.

How to restore legitimacy has thus become a central question for U.S. foreign policy, although the difficulty of doing so is manifest. At a minimum, restoring international confidence in the United States will take time. The erosion of the nation's legitimacy is not something that occurred overnight. Washington is unlikely to succeed at renewing it simply by conducting better "public diplomacy" to "make the American case" to the world, for world public opinion already rejects the case that has been made. If the United States is going to be successful in recapturing legitimacy, it will have to abandon the doctrines and practices that brought it to this pass.

FOUR PILLARS

To understand the sources of U.S. legitimacy in the post-World War II era, it helps to examine the public professions of the country's leaders. They tell a remarkably consistent story, one that pledges the use of U.S. power to international law. Just as civilization itself is distinguished by the insistence that conflicts be settled by means other than brute force, so U.S. postwar leaders insisted that international relations be ordered by the same principle. This principle had all the more appeal because it was championed in circumstances in which, only a short time before, it had been blatantly violated. The old European order that perished in 1945 had begun its descent into oblivion and nihilism with the butchery of 1914 and with the declaration of Germany's then chancellor, Theobald von Bethmann-Hollweg, that the treaty guaranteeing Belgium's neutrality was merely a "scrap of paper." The German regime that brought on World War II was even more contemptuous of international law. It acted avowedly on the principle that might makes right.

Much of the world in the twentieth century rebelled against this position. In 1945, at Nuremberg, Supreme Court Justice Robert Jackson, leading the American prosecution of the major Nazi war criminals, emphasized that the wrong for which German leaders were on trial was "not that they lost the war, but that they started it." Jackson refused to be "drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy." The same position was taken in the U.S.-inspired Charter of the United Nations. Peace was the great goal to which all other ends were subordinated. In obligating the UN's individual member states to refrain "from the threat or use of force against the territorial integrity or political independence of any state," the charter permitted but one clear exception: force could be employed in self-or collective defense against an armed attack.

Despite the repeated avowals of U.S. leaders committing their country to the rule of law, some influential pundits now maintain that international law had little or nothing to do with the legitimacy accorded the United States after 1945. "It was not international law and institutions but the circumstances of the Cold War, and Washington's special role in it, that conferred legitimacy on the United States, at least within the West," writes noted commentator Robert Kagan. "Contrary to much mythologizing on both sides of the Atlantic these days, the foundations of U.S. legitimacy during the Cold War had little to do with the fact that the United States helped create the UN or faithfully abided by the precepts of international law laid out in the organization's charter." Washington reserved for itself, he maintains, the right to intervene "anywhere and everywhere." These are convenient retrospective judgments regarding a state that now flouts principles it once held dear, but Kagan's position reflects a case of profound historical amnesia about the bases of U.S. internationalism.

In denigrating law as a pillar of U.S. legitimacy, Kagan emphasizes instead the role Washington played in containing Moscow. Although it is certainly true that the protection the United States accorded Western Europe from Soviet expansionism conferred legitimacy on U.S. power, it is equally true that allied diplomats repeatedly justified this enterprise in terms of its conformity with the principles of the UN Charter and its rule forbidding aggression. Had NATO been constituted on any other basis it would not have gained the support it did. This marrying of strategic vision and moral purpose is not so strange; indeed, neoconservatives themselves often emphasize that it ought to be the hallmark of U.S. foreign policy. Where they have departed from the classic understanding is in substituting their own moral purpose-promoting the extension of democracy, through force if necessary-for that favored by the architects of the post-World War II order, which emphasized the protection of the democratic community through rules constraining the use of force.