Introduction
Legitimacy. It’s a word much bandied about by students of the law. “Bush v. Gore
was an illegitimate decision.” “The Supreme Court’s implied fundamental
rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not
have a legitimate basis in international law.” We’ve all heard words
like these uttered countless times, but what do they mean? Can we give
an account of “legitimacy” that makes that concept meaningful and
distinctive? Is “legitimacy” one idea or is it several different
notions, united by family resemblance rather than an underlying
conceptual structure?
This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.
Normative and Sociological Legitimacy
Let’s begin with the distinction between normative legitimacy and sociological
legitimacy. On the one hand, we talk about legitimacy as a normative
concept. When we use “legitimacy” in the normative sense, we are making
assertions about some aspect of the rightness or wrongness of some
action or institution. On the other hand, legitimacy is also a
sociological concept. When we use legitimacy in the sociological sense,
we are making assertions about legitimacy beliefs–about what attitudes
people have. Although these two senses of legitimacy are related to one
another, they are not the same. That’s because an institution could be
perceived as legitimate on the basis of false empirical beliefs or
incorrect value premises. The opposite can be true as well: a
controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.
Conceptions of Legitimacy
Concepts and Conceptions–The
distinction between normative and sociological legitimacy is important,
but, by itself, it doesn’t get us very far. What does “legitimacy”
mean? How is “legitimacy” different from “justice” or “correctness”?
Those are deep questions—deserving of a book-length answer. My general
policy in the Lexicon series is to steer a neutral
course—avoiding controversial assertions about debatable matters of
legal theory. But when it comes to legitimacy, it is difficult to stick
to this plan. The difficulty is not so much that legitimacy is the
subject of a well-defined debate; rather, the problem is that the
concept of legitimacy is usually ill-defined and undertheorized.So here is the strategy we will use. Let’s borrow the
concept/conception distinction for a starting point. Let’s hypothesize
that there is a general concept of legitimacy but that this concept is
contested—different theorists have different views about what
legitimacy consists in. Some theorists think that legitimacy is
conferred by democratic procedures; others may think that legitimacy is
a function of legal authorization. Let’s take a look at four different
notions of legitimacy.Four Conceptions of Legitimacy
Legitimacy as Democratic Process–One
very important and influential idea of legitimacy is connected with
democratic procedures. Let’s begin with a simple example. Suppose you
belong to a small-scale organization of some kind—maybe a law-school
faculty. The executive of the organization can take various actions on
her own authority, but there are some matters that must be decided by
democratic procedures. For example, suppose the Dean of a law school
decided that all first-year classes should be taught in small-groups
with cooperative-learning techniques and without the traditional case
method and Socratic questioning. This might be a marvelous innovation.
(I’m not saying it would be.) But if the Dean made the decision without
the input of the faculty (or a vote of the faculty), then it is quite
likely that there would be vociferous opposition to the new
organization of the curriculum on the grounds that the Dean’s decision
lacked democratic legitimacy.Let’s take a more familiar example. Federal judges are not directly
elected. They are appointed for life terms. Although the President (who
nominates federal judges) and the Senate (which confirms them) are both
elected bodies, the judges who sit at any given time have an indirect
and diffuse democratic pedigree. Moreover, there life terms make them
relatively insular. So there is a question of legitimacy about the
institution of judicial review. Does the fact that Supreme Court
Justices are not elected make it illegitimate for them to invalidate
actions taken by elected officials? Of course, that’s a big question.
For our purposes, the important point is that the question itself is
one of democratic legitimacy.Legitimacy as Legal Authority–Another conception of legitimate seems to focus on legal authority.
For example, when President Truman ordered the seizure of the steel
mills during the Korean War, there was not question but that he had
been elected in 1948. But despite the fact that Truman was elected
democratically, there was still a question about the legitimacy
of his action. Even if his action was democratic, it may not have been
legal. When an official acts outside her sphere of legal authority, we
sometimes say that here decision was “illegitimate.” When we use
“legitimacy” in this way, we seem to be relying on the idea that
legitimacy is connected to legal authority. Actions that are not
legally authorized are frequently called “illegitimate” whereas actions
that are lawful are sometimes seen as legitimate for that reason.Legitimacy as Reliability–Yet
another theory ties legitimacy to the reliability of the process that
produces the decision. To see the point of the “reliability conception”
of legitimacy, we need to step back for a moment. There is a difference
between the “correctness” or “justice” of a decision, on the one hand,
and its “legitimacy” on the other. Indeed, this seems to be a crucial
feature of “legitimacy.” We think that an incorrect decision can
nonetheless be legitimate, whereas a correct decision can lack
legitimacy.Reliability theories acknowledge this “gap” between legitimacy and
justice, but insist that there is nonetheless a strong connection
between the two. The idea is that legitimacy requires a decision making
process that meets some threshold requirement of reliability. So
tossing a coin would not be a legitimate method for deciding legal
disputes. Even if the coin toss came out the right way and the party
that would have won in a fair trial did win the coin toss, the decision
that resulted from the flip of a coin would be criticized as
illegitimate.One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution.
Barnett argues that the legitimacy of a constitution depends on its
reliability in producing just outcomes. A legitimate constitution
guarantees a tolerable level of justice. A constitution that does not
provide such a guarantee is illegitimate—or so Barnett argues.The Liberal Principle of Legitimacy
Let’s do one more theory of legitimacy. John Rawls’s has advanced what
he called “the liberal principle of legitimacy.” Here is how Rawls
states the principle:[O]ur exercise of political
power is fully proper only when it is exercised in accordance with a
constitution the essentials of which all citizens as free and equal may
reasonably be expected to endorse in the light of principles and ideals
acceptable to their common human reason.”Unpacking Rawls’s principle could take a whole article, but let me make three observations:
- The distinctive feature of the principle is that it makes reasons
count. That is, the principle bases legitimacy on reasonable
endorsement “in the light of principles and ideals acceptable to . . .
common human reason.” Readers of past lexicon entries will note that
Rawls’s is referring her to his idea of public reason. - The principle does not require that citizens actually endorse
the constitutional essentials. Rather, the requirement is that citizens
“may reasonably be expected to endorse” the constitutional essentials.
In other words, the constitutional essentials must be justified by
public reasons in such a way that the justification is one that
reasonable citizens could be expected to accept. - Citizens are asked to endorse the constitutional essentials “as free and equal”.
That is, the principle assumes a certain political conception of
citizens as free and equal members of society. The reasons are
addressed to citizens conceived in this way, and not to citizens as
they are, if that includes their rejection of the notion that each and
every citizen should be regarded as a free and equal member of society.
Rawls’s liberal principle of
legitimacy point us in the direction of a whole family of ideas about
legitimacy. Rawls’s principle is tied to his idea of public reason, but
we can imagine other theories of legitimacy that include particular
kinds of reasons as legitimating or exclude categories of reasons as
illegitimate.Competing versus Complementary Conceptions
We began our investigation of various conceptions of legitimacy with
the working hypothesis that these would be “competing conceptions,”
i.e., that only one of these theories of legitimacy could be correct
for a given domain of application. Now, let’s take a second look at
that assumption.Is it really the case that the various conceptions of legitimacy
compete with one another? There is another possibility—that some (or
all) of these conceptions are complementary. For example, we might say
that a given judicial decision has legitimacy in the sense that it was
made by legally authorized officials, but that the same decision lacks
democratic legitimacy, because it was made by unelected judges contrary
to the will of democratically elected legislators. If this way of
talking is sensible, then it may be the case that the various
conceptions of legitimacy do not compete with one another, but rather
exist in some sort of complementary relationship.
Conclusion
We’ve barely scratched the surface, but I hope this entry has given
you food for thought about the idea of “legitimacy.” My own sense is
that one should be very wary about deploying the idea of legitimacy.
Because legitimacy has different senses and is undertheorized, it is
very easy to make claims about legitimacy that are ambiguous or
theoretically unsound.
(This entry was last revised on January 24, 2010.)