Legitimacy Essay

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Legitimacy is a concept most often considered in the context of political philosophy, where commentators examine the types, sources, and function of legitimacy. In most instances, political philosophers focus on institutions and governments that regulate conduct and make law. Legitimacy generally takes two forms: normative legitimacy and descriptive legitimacy. The normative legitimacy of an entity refers to some objective criteria that justify the acceptance or power of that entity. The descriptive legitimacy of an entity, originally articulated by Hans Weber, refers to how individuals perceive an entity. Under the descriptive conceptualization of legitimacy, an entity is legitimate if the populous views that entity as legitimate.

In recent years, scholars have explored the concept of descriptive legitimacy and its role in voluntary compliance with the law. In a series of studies, sociolegal scholar Tom Tyler discovered that those who perceive the law as legitimate are more likely to voluntarily comply with legal mandates. He goes on to note that the perceived fairness of the law and legal proceedings has a significant impact on the descriptive legitimacy of the law and, in turn, an individual’s decision to voluntarily comply with the law. Tyler’s research suggests that fair procedures or procedural justice legitimizes the law and fosters voluntary compliance with legal mandates.

Normative Legitimacy

As political philosopher Fabienne Peter explains, what possessing normative legitimacy entails for a political institution depends largely on the conceptualization of normative legitimacy. One view of normative legitimacy holds that a political institution’s legitimacy justifies its political authority and generates an obligation to obey its commands. Under this view, political legitimacy and political authority are necessarily two distinct concepts, such that there can exist illegitimate, but effective, political authority that does not create obligations to obey.

Another view of legitimacy holds that “the main function of legitimacy is precisely to justify coercive power.” Here, legitimacy is interpreted as “the justification for coercive power and as what creates political authority.” Critics of this view argue that the use of coercive power—legitimately or illegitimately—cannot create or justify political authority, as coercion is “only a means that states use to secure their authority.”

A final view of a normative legitimacy challenges the notion that the decisions and laws of legitimate political institutions necessarily create obligations for their subjects. Scholars taking this view argue that, “the question of what constitutes legitimate authority is distinct from the question of what political obligations people have.” Hence, a legitimate political institution does not always create obligations. Instead, some scholars argue, political obligations arise only when they originate from a legitimate political institution and additional, independent conditions exist.

Sources of Normative Legitimacy

Scholars have also proposed that the source of normative legitimacy for political institutions, however conceptualized, is based in utilitarian principles or in theories of consent. For example, as Peter explains, the utilitarian view of legitimacy’s source holds that, “legitimacy depends on whether a law contributes to the happiness of the citizens.” Hence, under the utilitarian view, restricting the freedoms of citizens is necessary to ensure greater happiness such that “the restriction of liberty is illegitimate unless it is permitted by the harm principle, that is, unless the actions suppressed by the restriction harm others.”

Another potential source of a political institution’s normative legitimacy is consent. Some scholars argue that legitimacy is rooted in the consent of those subject to the decisions and mandates of a political institution. Yet, the form of consent necessary to establish legitimacy is a point of contention among scholars. Some contend that hypothetical consent establishes a political institution’s legitimacy; others argue that only actual consent or actual consent given under ideal conditions will legitimize a political institution.

Democracy as a Source of Normative Legitimacy

The idea that normative legitimacy is rooted in consent has spawned theories holding that the normative legitimacy of political institutions is rooted in a form of mass consent—democracy (democratic legitimacy). Generally, democratic legitimacy is the theory that the legitimacy of a political institution—and the decisions or mandates of that institution—are normatively legitimate if they “respect democratic values.” Accordingly, as Peter notes, normative democratic legitimacy “gives people a binding reason to support or not to challenge democratic institutions and the resulting decisions.”

Theories of democratic legitimacy vary. What Peter terms democratic instrumentalism is a theory that proposes that when the outcomes of a democratic political institution’s function are good or ideal—as measured against an objective criterion—then that institution is democratically legitimate. A second theory of democratic legitimacy suggests that it is the quality of the democratic decision-making processes of political institutions that dictate their normative legitimacy. Under this theory of democratic legitimacy, the outcome of a democratic decision-making process is independent of its democratic legitimacy. And finally, a mixed theory of democratic legitimacy holds that a political institution’s normative legitimacy “depends on both procedural values and on the substantive quality of the outcomes that these deliberative decision-making procedures generate.” In short, “a democratic decision is legitimate if it has been made in a decision-making process that seeks to approximate, as far as possible, the ideal outcome.”

Descriptive Legitimacy

Unlike normative legitimacy, which speaks to whether political institutions are legitimate as measured by an objective criterion, descriptive legitimacy addresses subjects’ perceptions of political institutions. In particular, descriptive legitimacy refers to whether subjects view political institutions as legitimate and why they hold such views. For example, Weber theorized that individuals will accept the authority of a political institution and obey its commands if that institution is (1) rooted in tradition, (2) implemented by a trusted leader, or (3) based in a rational system of law. Weber further suggested that legitimacy is “an important explanatory category for social science, because faith in a particular social order produces social regularities that are more stable than those that result from the pursuit of self-interest (utilitarianism) or from habitual rule-following.” Democratic legitimacy can also take on a descriptive dimension. For instance, a political institution possesses descriptive democratic legitimacy if “people support—or at least do not challenge—democratic institutions and decisions.” In this way, the descriptive legitimacy of a democratic institution refers to “people’s beliefs about the acceptability of particular democratic decisions.”

As Weber illustrated, sources of the descriptive legitimacy of a political institution can vary. And, as is the case with the normative democratic legitimacy of a political institution, the descriptive democratic legitimacy of a political institution can originate in democratic processes, democratic outcomes, or a combination of the two. The critical distinction between normative democratic legitimacy and descriptive democratic legitimacy, however, is that the latter simply seeks to know why individuals view a political institution as legitimate, and not whether individuals ought to view a political institution as legitimate as measured by objective criteria inherent in a democracy.

Procedural Justice and Descriptive Legitimacy

Tom Tyler suggests a normatively superior method for cultivating legal obedience. He contends, “the legal system benefits when people voluntarily defer to regulations to some degree and follow them, even when they do not anticipate being caught and punished if they do not.” Thus, authorities can promote law-abiding behavior by moving away from the forced acquiescence characteristic of deterrence and toward a “value-based model” focused on eliciting “voluntary acceptance and cooperation.” This “self-regulation” approach holds that “internal motivational forces … lead people to undertake voluntary actions” and that “values shape rule-following.” Accordingly, Tyler theorizes that when citizens view the law as legitimate, they are more likely to follow its directives and that legal procedures impact the perceived legitimacy of the law.

Specifically, Tyler asserts that the legitimacy of the law is contingent on a citizen’s “prior views about law and government” and “the use of fair procedures during the experience itself.” Therefore, self-regulation can only succeed if authorities take steps to legitimize the law by employing legal policies that citizens view as procedurally fair, while continuously evaluating these policies to ensure that they continue to portray the law as legitimate. Several factors influence citizens’ views of the law. Tyler and others have enumerated six components of procedural justice: (1) representation, (2) consistency, (3) impartiality, (4) accuracy, (5) correctability, and (6) ethicality. In this way, authorities foster the descriptive legitimacy of the law. Moreover, data indicates that, “persons attribute legitimacy to legal authorities and voluntarily follow rules out of a sense of duty and obligation when legal authorities treat them fairly.”

Bibliography:

  1. Peter, F. Democratic Legitimacy. New York: Routledge, 2009.
  2. Peter, F. “Political Legitimacy.” Stanford Encyclopedia of Philosophy. http://plato.stanford.edu (Accessed October 2013).
  3. Tyler, T. R., “Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority.” DePaul Law Review, v.56 (2007).
  4. Tyler, T. R. “Legitimacy and Criminal Justice: The Benefits of Self-Regulation.” Ohio State Journal of Criminal Law, v.7 (2009).
  5. Tyler, T. R., Why People Obey the Law. Princeton, NJ: Princeton University Press, 2006.
  6. Weber, M. The Theory of Social and Economic Organization. New York: Free Press, 1947

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