Legality versus Legitimacy and the Use of Force

Abstract

In order to clarify the terms of legality and legitimacy, this chapter first focuses on their definitions and the context in which they have been used in both domestic and international law. Next, it moves to the relationship between the concepts of legality and legitimacy. The chapter then discusses the just war theory and proves that it is still being used in the international law, in particular in the form of the illegal but legitimate approach. Finally, it talks about the possible dangers this modern just war doctrine presents, concluding that, under extreme circumstances, it has a limited role to play in international legal order. The modern just war doctrine is dangerous for exactly the same reasons that prompted abandonment of the older version of the doctrine. International law positivists believe that the concepts of legality and legitimacy are inseparable within the international legal system. Keywords: illegal but legitimate approach; international legal system.; legality; legitimacy; modern just war doctrine