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Legitimacy
 
By
Máire A. Dugan


January 2004
 

"My people and I have come to an agreement which satisfies us both. They are to say what they please, and I am to do what I please." -- Frederick the Great of Prussia
Defining "Legitimacy"

Discussions of legitimacy tend to be complicated. The term is used in many different ways, to refer to very different situations. Thus a standard definition can prove elusive. One can question the legitimacy of a political entity, its leaders or spokespersons, its policies, laws, or procedures. In an extreme case, one might even question the legitimacy of physical artifacts.

For example, in the trial of the Catonsville 9, the Berrigan brothers and their co-defendants claimed that certain property had no right to exist because its only or primary purpose was immoral. They were on trial for burning (actually "napalming") draft card files during the Vietnam War, a fact that they did not dispute. They did, however, claim they had done nothing illegal since the property they had destroyed had no right to exist. [1]

In common parlance, the word "illegitimate" is used to describe a person born out of wedlock. While case law changes over time, its original implication is that such a person is not a legitimate heir, and may even not have the right to use the family name.

These two cases, as different as they are, give us a window into a generic meaning of "legitimacy." Legitimacy has to do with rights: whether a government has the right to rule, whether a spokesperson has the right to speak on behalf of the entity s/he is representing, whether a son of daughter has a right to claim a parent's estate upon the latter's death. A second meaning of the word "right" -- correct -- is also pertinent to questions of legitimacy: whether the leader has been duly installed, whether correct procedures have been followed in enacting a law. Finally, an even more normative meaning -- right as moral -- can also be operative: whether a policy serves "the good" of all concerned.

I am focusing in this article on political entities -- governments and organizations that support or challenge them. Law is a critical aspect of this picture, and adherence or non-adherence to the law becomes an indicator of legitimacy. In fact, some would define legitimacy in terms of adherence to law:

A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) if laws are made by procedures which assure that they are not unjust.

Even when we limit ourselves to political entities and focus on the extent to which, for example, a government is given the support of its citizens in making and enforcing law, the matter is still complicated. One can look at the same entity, for example, a regulation, from more than one viewpoint. In outlining ways in which legitimacy is defined in the international arena, Christopher Gelpi notes two general approaches.

The first view -- rooted in international law -- contends that a rule or a norm is legitimate if it is created by legitimate institutions. This understanding of legitimacy has led to the importance of "right process" as a standard for assessing international law and legal rules.

A second view, however, contends that legitimacy exists primarily at the level of the individual actor rather than the community. That is, a particular rule or norm is legitimate if it enjoys support from the relevant set of actors.[2]

While Gelpi is discussing legitimacy at the international level, the same two approaches, and sometimes more, can be used in dealing with legitimacy on any level of political organization.

Since legitimacy impacts the different forms of power in different ways, this may be a better way of clarifying the sources of, and need for, legitimacy. I will treat each separately here. I will also treat the various roles of conflict interveners in a separate section.

Legitimacy and Coercive Power


Sarah Cobbdescribes her goals as an intervenor as helping people reframe their narratives.
Pure coercive power requires no legitimacy. Brute force is its own only justification. Might, at least in the eyes of its wielder, makes right. But, as the mighty often find out, it is one thing to assert one's dominance by force of arms (whether in the form of personal brawn, or in weaponry), and another thing to maintain control through force. In the case of colonial rule, for example:
The growing legitimacy problems of imperial rule made the imperial power take on a substantial and, generally, an increasing share of the total expenses involved in maintaining the empire. The subsidies which imperial capitals often came to supply to the provinces represented an attempt to stop the erosion of imperial legitimacy. Yet, the growing costs in turn undermined domestic support for the continuation of imperial rule. A vicious circle was created.[3]

But all political governances exert some degree of coercive power. They need their citizens to perceive that they have the right to do so. Coercive force "reduces freedom of action, which is a cost or disadvantage to the affected party and which thus requires legitimation."[4]

To put it in other terms, because the legitimation of coercive powers depends on the welfare of the affected parties, these powers can only be defended if they bring more advantages than disadvantages for each individual. The criterion is distributive justice. Something that is advantageous for everyone can be brought about by exchange; distributive advantage can consist in mutual advantage. Even if a coercive social order brings about coordination, efficiency, security and stability, and thereby the collective welfare, of a society, it lacks legitimacy if this is accomplished by disrespect for the interests of individuals or groups within the society.[5]

Hoffe goes so far as to refer to justice as the categorical imperative for the state, simply because it has the capacity to coerce.

Some form of legitimacy tends to be needed to maintain control. In the legal system, for example, some people obey the laws simply because they believe in the rule of law and the appropriateness of the state making and enforcing the laws. In fact, if the majority did not accept this, it would take massive amounts of time, weaponry and energy to enforce it. Thus the rule of law itself is sufficient for the vast majority of "law abiding," citizens. Beyond this, it is largely their support that allows the state to enforce the law on those who do not accept its legitimacy.

Fear of the lack of public support was seen in the immediate aftermath of the capture of Saddam Hussein in Iraq. Charles Gibson of ABC's Good Morning America asked an advisor to the interim Iraqi government whether a trial of Hussein in Iraq would have legitimacy with the Iraqi people given that they have not yet constituted their own government. The newscaster asked the same question of a former U.S. ambassador to the United Nations who was being interviewed at the same time. The two interviewees agreed on the essence of their answer: procedures were being set up for the indictment and the trial in conformity to international standards, and these procedures, carefully followed, will confer legitimacy to the process, a conviction, and a penalty. Time will tell if they are being accurate in their predictions; what is interesting to note is the degree to which legitimacy arose as an issue even in the midst of news coverage of the arrest itself.

Legitimacy and Exchange Power


Jannie Botes says journalists frequently escalate conflicts. This can be positive or negative, depending on the situation.

Hoffe's quotation above alludes to the central concern regarding legitimacy in the case of exchange power. Here, the concern is procedural. The parties need to know what is the nature and value of what is being exchanged and, on some level, be willing to enter the exchange. So long as the other delivers on what s/he is promised, the legitimacy is maintained.

Governments utilize exchange mechanisms with citizens on a frequent basis. For example, in democratic societies, candidates tend to make campaign promises in return for votes. If the candidate, when elected, makes good on those promises, s/he will be in a good position for re-election. If not, their re-election is in jeopardy and the official may become a "lame duck" (i.e., ineffective, not listened to) long before re-election time. One organization, Consent of the Governed, is proposing that all candidates sign an oath, indicating that if they are at any point guilty of lying, misleading, or breaking promises, they will step down from office. Such elected officials, they assert, are no longer legitimate holders of the people's trust.

Gellner relies primarily on exchange power when discussing legitimacy:

In our time, a social order is valid, has rightful claims on the loyalty of the members of the society, under two conditions.

 

  • It is bringing about, or successfully maintains, an industrial affluent society.
  • Those in authority are co-cultural with the rest of the society.

In Gellner's terms, people presume a government to be legitimate when they are getting something from it: I will give you my support and loyalty; you give me economic prosperity and security. The addition of what he calls "co-cultural" relates to exchange in that, if we are operating on the same cultural norms, we are more likely to trust that the mutual benefits of our association will continue. But, this is also, and maybe more importantly an integrative power concern, and will be discussed below.

Before leaving the topic of legitimacy and exchange power, however, it is important to consider the ways in which this intersects with coercive power. The concern may be best expressed in terms of the concept of contract. Contracts are often used to seal an exchange in the economic world -- I am giving you something I have in return for something you have. To ensure that I reap my benefits, I sign a contract with you. Then if you don't come through on your end of the bargain, I can penalize you for your non-compliance and seek restitution. Fear of this outcome may induce you to conform to the contract, even though you do not wish to. In this light, it is interesting that democracy is often referred to as a "social contract."

Legitimacy and Integrative Power
Loyalty is the word we normally associate with the legitimacy of integrative power. I obey the laws of my city, my state, my nation because I feel I should. I am a loyal American, or Kenyan, or Thai. I do so not so much out of fear of reprisal if I do not, or because of anything I will get in return; I do so because it is the right thing to do.

Gellner's notion of co-cultural is pertinent here; coming from the same culture makes it more likely that we have the same notion of "the right thing" to do. Of course, living within the same borders does not guarantee that people are culturally coterminous. One way in which Spike Lee's Do the Right Thing might be summarized is that the Italian American and African American characters he depicts have quite different views on what the "right thing" is, despite the fact that the locus of activity is not just the same nation, but the same neighborhood.



Tamra D'Estree describes a conflict where one side was forced to change his identity in order to achieve personal legitimacy.

Bey's notion of legitimacy is purely integrative in its essence:

The primary criterion of the legitimacy of any regime or system of government should be its degree of commitment to the protection of human lives -- every human life -- as demonstrated by its endeavors to meet the most basic needs, the dire needs, of the people more endangered and/or those least privileged.

 

But why? ... all human beings should be entitled to be treated as ends, never solely as means.[6]

Legitimacy in Conflict Intervention

In working on resolving environmental conflicts, one or more groups may not be sufficiently established to have legitimacy. In this case, it is not a question that the group is considered illegitimate; it simply does not have sufficient recognition and legitimacy to negotiate agreements, which impact a wider group. Dukes and Firehock associate the legitimacy of such groups with balance and inclusiveness in representation: "a group seen as representative will have legitimacy that a group that is seen as excluding interests will not have, and any agreements will be less likely to be attacked."[7]

Oftentimes, however, in intractable conflicts, the problem is not simply that the parties do not have legitimacy; one or more of them are seen by some significant sector of the society as illegitimate. In that case, a negotiation is likely to be fruitless. Party A does not believe the promises Party B is making, or, even if Party A is willing to presume good faith, they may be concerned about whether Party B can actually make their promises happen. Conflict resolution, in such cases, must be concerned with the restoration and extension of legitimacy.

In this case, it is wise to consider the sources of legitimacy. Max Weber, often quoted on the topic, identifies four:

  1. tradition: valid is that which has always been;
  2. affectual, especially emotional, faith: valid is that which is newly revealed or exemplary;
  3. value-rational faith: valid is that which has been deduced as an absolute;
  4. positive enactment which is believed to be legal.

Such legality may be defined as legitimate because:

  • it derives from a voluntary agreement of the interested parties;

it is imposed by an authority which is held to be legitimate and therefore meets with compliance.[8]

In communities or societies that have been torn by deep divisions and destructive conflict, the first three sources may be limited in their capacity to offer a base for legitimacy to any party to the conflict.[9] While one should not fly in the face of local norms as suggested by tradition, affect and faith, it may help to build legitimacy if one utilizes international legal norms as a primary base for generating legitimacy. Weber himself contends that currently the most common form of legitimacy is the "belief in legality," [10].

Focusing on internationally accepted procedures and with the endorsement of parties credible to the constituencies, third parties can assist parties to gain sufficient legitimacy to function as negotiators and sufficient skills to be effective as negotiators. Utilizing this base, any agreement reached should have sufficient legitimacy with the citizenry that they are willing to support it. Over time, the parties' adherence to the agreement will lend additional credibility to themselves and to the process.

With many poor countries facing legitimacy crises and ensuing political instability, Mozambique may offer a model of a route to legitimacy, the more so because on several grounds, Mozambique is an unlikely candidate for the distinction. It is the very poorest of the world's poor. After independence, the country was wracked by a 16-year civil war. Like many former colonies, traditional sources of legitimacy were destroyed or severely damaged by colonialism. The peace treaty, negotiated in 1992, involved international actors in key ways in the negotiation process, such involvement having prompted little stability in many other war torn areas.

Nonetheless, the Mozambique government has proved relatively stable. With final chapters have yet to be written and there is no guarantee that stability will be maintained, Mozambique's innovative path to legitimacy might well be adapted to other journeys.

Legitimacy in Mozambique does not rest on democratic procedures alone, the path that is often chosen or externally prompted. Nor does it rest on the re-establishment of traditional sources of legitimacy, largely decimated in former colonies. Rather, it is built on a combination of utilization of formal decision making processes as outlined in its 1990 majority-rule constitution, side by side with an informal bargaining tradition between the two major (and formerly warring) political parties. The constitution was put in place by the majority party, Frelimo, prior to the cessation of hostilities. The informal bargaining tradition is an outgrowth of the General Peace Accord process which "enshrined negotiation, political balance, and consensual decision-making procedures as the basis of interaction" [11] between Frelimo and Renamo, the opposition (and weaker) political party.

Manning identifies three issues relevant to post-conflict state building from the Mozambique experience:

  1. (T)ransitional arrangements designed to build confidence and provide positive incentives for participation (in negotiating an end to hostilities) may turn out to be extremely important for the long-term survival of the system, and not merely during the limited period between the end of the war and the first postwar elections.
  2. The habituation process (through which actors come to accept democratic procedures as first inescapable and then legitimate) is likely to be lopsided, given the often sizable differences in the resources and capacities of the major political actors....
  3. (I)n Mozambique parallel formal and informal tracks for conflict management, which are based upon conflicting notions of democracy and system legitimacy held by the two major parties, have compensated for persistent imbalances between Renamo and Frelimo." [12]

The Mozambique case underlines the importance of taking legitimacy into consideration in the formation of any conflict resolution process. Otherwise, an agreement reached, no matter how visionary, is unlikely to hold, and its failure will add to the difficulty of future resolution efforts.

 


 

[1] Berrigan, Daniel. The Trial of the Catonsville Nine. Beacon Press, 1970. <http://books.google.com/books?id=vYm8PUqT8Z8C>.

[2] Gelpi, Christopher. The Power of Legitimacy: Assessing the Role of Norms in Crisis Bargaining. Princeton, NJ: Princeton University Press, 2003. p. 14 <http://books.google.com/books?id=bcTa7Q6V1bcC>.

[3] Lundestad, Geir. "The Fall of Empires: Peace, Stability, and Legitimacy," in The Fall of the Great Powers: Peace, Stability, and Legitimacy. Ed. Geir Lundestad. Oslo: Scandinavian University Press, 1994, p. 390 <http://books.google.com/books?id=CI12AAAAMAAJ>.

[4] Hoffe, Otfried. Political Justice: Foundations for a Critical Philosophy of Law and the State. Translated by Jeffrey C. Cohen. Cambridge, UK: Polity Press, 1995, p. 36. <http://books.google.com/books?id=3DdmQgAACAAJ>.

[5] Hoffe, p. 40

[6] Bay, Christian. "Civil Disobedience: the Inner and Outer Limits," in Dissent and the State. Ed. C.E.S. Franks. Toronto: Oxford University Press, 1989, p. 40. <http://books.google.com/books/about/Dissent_and_the_state.html?id=JyKDAAAAMAAJ>.

[7] Barnett, Randy E. "Constitutional Legitimacy," Boston University School of Law Working Paper 01-19, November 1, 2001, p. 24. <http://papers.ssrn.com/sol3/papers.cfm?abstract-id=291145>.

[8] Weber, Max. Economy and Society: An Outline of Interpretive Sociology. Ed. Guenther Roth and Claus Wittich. New York: Bedmister Press, 1968 p. 36. Fourth edition (1978) available here.

[9] While tradition may not offer much in the way of legitimacy to parties to the conflict, the wise conflict resolution process designer would be well advised to look to tradition to lend legitimacy to the process. The culture of the parties needs to be given a place of primacy in the design. John Paul Lederach, for example, often discusses coming to the recognition during his time in Nicaragua , that some process concerns taken as definitional in mediation in the United States, were inappropriate, if not actually damaging there. In particular the notion of a neutral third party did not fit into the ways in which the Nicaraguan participants, from different cultural groups themselves, dealt with conflict. From his experience there, Lederach developed his notion of the "insider partial." Aside from increasing the likelihood of success of the intervention, whatever agreement may be produced is much more likely to be supported by parties' constituencies if cultural norms and traditions are key in determining all aspects of the process.

[10] Weber p37

[11] Manning, Carrie, "Conflict Management and Elite Habituation in Postwar Democracy: The Case of Mozambique," Comparative Politics. 35, 1, (October 2002), p. 70. <http://www.jstor.org/stable/4146928>.

[12] pp. 64-67


Use the following to cite this article:
Dugan, Máire A.. "Legitimacy." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: January 2004 <http://www.beyondintractability.org/essay/legitimacy>.

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