Law and Legitimacy

Gabriela Goudenhooft, University of Oradea, Faculty of History, International Relations, Political Sciences and Communication Sciences (IRISPSC), has published Legitimacy: Rituals of Legality and Discursive Authority. Here is the abstract.

This paper aims to explore the concept of legitimacy from a transdisciplinary and interdisciplinary perspective. The concept of legitimacy is claimed by many disciplines and its roots and formulations can be found in many of them, including law, political science, sociology and, not ultimately, philosophy.

The attempt of explaining the meanings of the concept of legitimacy was also done by reference to other concepts such as legality, authority and sovereignty, identity, democracy, rationality, public space etc.

The first question that we wanted to answer is the following: is legitimacy a quality or rather a relationship? Roman law designed legitimacy in an area of identity, where individuals structure their civil status, family relations and also heritage issues with other individuals. It is primarily about family law and civil law (hereditas legitima, tutela legitima, filius legitimus, successores legitimi, legitimum imperium, potestas legitima, scientia legitima etc.). From this area comes legitimacy’s meaning of compliance with specific order, its relations with legality; here are the forefathers of procedural legitimacy which will be kept even nowadays.

From a philosophical point of view, legitimacy implies the existence of a specific order which is superior to anomie, to the lack of law, to disorder or illegitimacy. The relationship between legitimacy and order explains the necessary rituals for establishing this order, rituals which have a symbolic power.

From a socio-political perspective, legitimacy represents people's faith in legitimacy, induced by the ability of a political system of imposing and maintaining it; the belief that the existing political institutions are the most appropriate for a given society (Weber, Lipset). Legitimacy is often conceived as a quality attributed to the regime by the people through the trust induced by the regime (Merelman). In this respect the legitimacy can be seen as an umbrella protecting the government in their actions. Moreover, legitimacy justifies the government’s actions and even the general command-obedience relation. Therefore, the power is concerned to find arguments to support its own legitimacy (legality, values and consensus) and when a crisis of legitimacy occurs, to find a way to regain it.

Legitimacy arises in competitive contexts and interrogates the democratic procedures and their righteousness (free elections and the principle of majority).

To investigate such diverse areas we had to deal with taxonomy, the analysis of the types of legitimacy, its different species: from the classical division of legal-rational legitimacy, traditional and charismatic legitimacy to noncompetitive and competitive legitimacy; then the input legitimacy versus output legitimacy; legitimacy through formation versus the legitimacy by mandate; to new forms of legitimacy: legitimacy of impartiality, legitimacy of reflexivity, legitimacy of proximity and so on.

Modern society cannot be conceived outside the legal order, the principle of legality and the rule of law, or outside the primacy of human rights. Thus, the evolution of legitimacy on the stage intersects with the values agreed upon by society, in order to achieve the above mentioned objectives. In our world, both the state actors and the private actors, who claim the right to act in the sphere of legitimacy, contribute to their achievement. Moreover, we are talking about international legitimacy and on the "over-state of law". Legitimacy thus invaded broader spheres: the private one, the sphere of national political-constitutional systems, the international one, comprising interstate relations and the community one -- European Union (EU).

An important part of the study regards the symbolic, ritual and discursive answers to the current issues of legitimacy, especially as alternatives to the contemporary legitimacy crisis. Political power oscillates between using rational means of legitimation (legality perspective) or symbolic means through myth and ritual, generally through magical thinking. All this takes place and develops through a public discourse, benefiting from media dissemination and coverage and becoming a show and a game that fascinates the public, manipulating it and anesthetizing its critical spirit.

But speech doesn’t have the required force to achieve the desired objectives unless it is an authorized, legitimate discourse. The instrumentalization of the discourse requires persuasive strategies configuration that is based on cognitive and pragmatic behavior in order to increase its performance.

These areas are the current playground of the public sphere, where there is an unsettling shift from a conventional to a postconvenţional stage, where moral conscience faces increasingly difficult challenges and where legitimacy rethinks its criteria.