Law and legitimacy

Law and legitimacy

1. Law and legitimacy

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.