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Law and Legitimacy

This document discusses the concepts of legitimacy and legality in law. It defines legitimacy as the belief that an authority, institution, or social arrangement is appropriate and deserves obedience. Legitimacy provides justification for power and governance, whereas legality refers only to what is legally permitted. The development of legal legitimacy is traced from its origins in equal treatment under the law to current understandings of it as psychological property leading to compliance.

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73 views9 pages

Law and Legitimacy

This document discusses the concepts of legitimacy and legality in law. It defines legitimacy as the belief that an authority, institution, or social arrangement is appropriate and deserves obedience. Legitimacy provides justification for power and governance, whereas legality refers only to what is legally permitted. The development of legal legitimacy is traced from its origins in equal treatment under the law to current understandings of it as psychological property leading to compliance.

Uploaded by

gagan deep
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Law and legitimacy

Legitimacy
• In law, "legitimacy" is distinguished from "legality". An action can be legal but
not legitimate or vice versa, it can be legitimate but not legal.

• Thomas Hilbink suggests that the power to enforce the law stems from the
power to influence public opinion, from the belief that the law and its agents
are legitimate and deserve this obedience.

• Where, as Tyler puts it, legitimacy is ... a psychological property of an


authority, institution or social arrangement, leading those connected to it to
believe that it is appropriate, appropriate and just. Seen this way, legal
legitimacy is the belief that the law and law enforcement officials are
legitimate holders of authority; that they have the right to dictate
appropriate behavior and the right to be obeyed; and that the laws must be
obeyed, just because it is the right thing to do.
Development of legal legitimacy
• Peter Kropotkin suggests that the acceptance of the rule of law developed
in response to the endemic abuse of authority by the nobility; After the
rise of the middle class after the French Revolution, strict compliance with
the law was conceived as the highest equalizer in society. “Whatever this
law,” writes Kropotkin, “it promised to affect both the lords and the
peasants; proclaims the equality of the rich and the poor before the judge
”.
• Establish that government action can be legal without being legitimate;
for example, the resolution on the Gulf of Tonkin, which allowed the
United States to wage war on Vietnam without an official declaration of
war. It is also possible that government action is legitimate without being
legal; for example, a preventive war, a military junta. An example of these
problems arises when legitimate institutions collide in a constitutional
crisis.
• Legitimacy is the right to govern and the recognition by the governed of this right.
Social institutions need legitimacy to develop, function and reproduce effectively.
This is as true for the police as it is for other government institutions. But the use
of state-sponsored violence and force, conflict resolution, and the application of
legally prescribed conduct and rules are unique to policing. Police legitimacy and
public consent are necessary conditions for the justified use of state power: those
under surveillance must regard the police as correct and adequate.
• By linking legitimacy to public compliance, Tyler's work generates a psychology of
authorization and consent. The legitimacy of the police and the law leads to
compliance with legal guidelines for action that dictate appropriate and
personally binding behavior. These guidelines may not be perfectly aligned with
everyone's moral system. We do not always agree with the moral force of each
law. But legitimacy involves the public recognition that social order needs a
system of laws that generate conformity and respect beyond individual
preferences (or disagreements) with specific laws. When people believe that it is
morally right to obey the law, as long as they know that a particular act is illegal,
then the immorality of the illegal behavior becomes a fact. Another type of
morality "comes into play". Of course, there are other reasons why people
comply (or not) with the law.
Law and legitimacy
• In thinking about the problem of legitimacy, it is first of all
useful to distinguish the general concept of legitimacy from
more specific conceptions of legitimacy.
• Often, “legitimate” and “illegitimate” are simply used as terms
of approval and disapproval. For example, people might qualify
nuclear energy as 'illegitimate', meaning not within the limits of
acceptability, or an argument as 'legitimate', i.e. logically valid. .
• However, in both political science and international law, the
concept of legitimacy is often understood more narrowly, in
relation to the justification and acceptance of political
authority.
• A legitimate institution or ruler has the right to exercise
authority, has the right to govern (or to use the most
common expression, govern), while an illegitimate institution
does not.
• A wide variety of factors can give an actor the right to
govern: democratic accountability, legality, religion, tradition,
experience, policing, success in solving collective problems,
respect for human rights, etc.
• These different conceptions of legitimacy are all consistent
with the general concept of legitimacy as the right to govern.
• If the concept of legitimacy is understood as the right to
govern, two questions arise: First, what does “to govern”
mean? And second, what does it mean to have a “right” to
govern?
• The answer to the first question defines the domain
to which the concept of legitimacy applies.
• The answer to the second concerns the nature of the
claim made in qualifying governance as “legitimate”.
• Obviously, the concept of legitimacy applies to
institutions such as the World Trade Organization or
the United Nations Security Council.
• But does this apply to private governance
arrangements like the Marine Stewardship Council?
To the exercise of “soft power”, to market-based
institutions such as international emissions trading?
• Governance can vary considerably in its application.
• At one end of the spectrum, an institution can use
“hard” power to enforce its rule.
• While power and legitimacy represent different types
of reasons to comply, the exercise of power is itself
legitimate if the actor involved has the right to do so.
Power and legitimacy can therefore complement each
other as the basis of governance.
• At the other end of the spectrum, people can willingly
accept and be guided by an institution because of its
soft power.
• Although soft regimes do not have coercive power, it could
be said that they “rule” to the extent that they want their
decisions to guide others.
• Indeed, legitimacy is arguably more crucial for institutions
that wield soft power than hard power, as an institution's
lack of coercive power means it must rely more on
legitimacy as a basis for influence.
• That said, the weaker the governance of an institution, the
less it can apply its decisions, the less legitimacy it raises.
• The imposition of sanctions by the Security Council, for
example, poses a greater legitimacy issue than the Marine
Stewardship Council's environmental standard for
sustainable fisheries.

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