2. 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.
3. 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.
4. • 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.
5. 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.
6. • 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?
7. • 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?
8. • 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.
9. • 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.
