Mathieu Carpentier (Universite de Toulouse 1 Capitole) has posted Normative and empirical legitimacy in constitutional theory on SSRN. Here is the abstract:
Constitutional theory is replete with normative claims. Many constitutional theorists have been debating about the legitimacy of various institutions, such as judicial review, executive power, federalism and the like. As several scholars have pointed out, many legitimacy claims typically confuse two concepts of legitimacy: on the one hand, what is usually called in the social and political sciences "empirical", "sociological", "descriptive" or "Weberian" legitimacy and on the other hand "normative" or "moral" legitimacy. The former rests on the perception by social actors of the legitimacy of political institutions and of the correlative duty to obey them; the latter aims to articulate full-blooded normative or evaluative criteria aimed at justifying or criticizing various constitutional institutions and arrangements. The question is whether these two concepts must remain separate or whether empirical legitimacy should make a difference to normative or moral legitimacy claims. Without the former, the latter runs the risk of being overly paternalistic; but if it tracks too closely social attitudes, it loses all justificatory and critical bite. Taking as a main example the question of judicial review, I aim to show that a limited, but close, attention paid to empirical legitimacy may help the constitutional theorist to achieve a more fine-grained and context-sensitive normative picture. It also shows the trade-offs that constitutional systems strike between competing values need to be taken seriously and are not indifferent to the moral valence of their institutions.
Highly recommended.