In this paper, I pursue a dialogue between John Dryzek and Robert E. Goodin’s positions on deliberative democracy’s ‘problem of economy’ with an eye toward a synthesis that could lead us toward a conception of deliberation that counters the threat to legitimacy posed by this problem. By sketching a view that makes the two accounts more consonant by casting discourses as intersubjectively constituted, with deliberation as the contestation of intersubjectively constituted discourses in the public sphere, we ought to be (...) able to describe democratic legitimacy as being linked to the epistemic quality of deliberation while not succumbing to the problem of economy. This would thereby maintain deliberative democracy’s critical edge and feasibility and legitimize the deliberative democratic model as a standpoint to critically evaluate social relations and collective decisions, such that our politics can be rendered more just. (shrink)

The philosophical literature on state legitimacy has recently seen a significant conceptual revision. Several philosophers have argued that the state's right to rule is better characterized not as a claim right to obedience, but as a power right. There have been few attempts to show that traditional justifications for the claim right might also be used to justify a power right, and there have been no such attempts involving the principle of fair play, which is widely regarded as the (...) most promising basis for a claim right to obedience. William Edmundson argues that the principle of fair play cannot generate power rights, and so any attempt at a fair play account of legitimacy must fail. I explain how fair play could generate a power right, owing to its stipulation that the rules of a cooperative scheme specify the form of participants' repayment. (shrink)

Delegation to independent agencies can reap real benefits for policy-making. In the case of monetary policy, it shores up the credibility of the central bank. However, the discretion of IAs needs to be constrained to ensure their legitimacy. This letter focuses on one potential constraint, namely, the idea that IAs should not make choices on distributional trade-offs. Given that monetary policy today has significant distributive consequences, if this constraint were respected, the independence of central banks would have to be (...) repealed. This would be just as undesirable as a monetary policy whose distributive consequences remain unchecked. Instead, this letter encourages the search for alternative solutions and puts forward three possible institutional arrangements to manage the tension between the distributive consequences of monetary policy on the one hand and central bank legitimacy on the other. (shrink)

Political legitimacy is a virtue of political institutions and of the decisions—about laws, policies, and candidates for political office—made within them. This entry will survey the main answers that have been given to the following questions. First, how should legitimacy be defined? Is it primarily a descriptive or a normative concept? If legitimacy is understood normatively, what does it entail? Some associate legitimacy with the justification of coercive power and with the creation of political authority. Others (...) associate it with the justification, or at least the sanctioning, of existing political authority. Authority stands for a right to rule—a right to issue commands and, possibly, to enforce these commands using coercive power. An additional question is whether legitimate political authority is understood to entail political obligations or not. Most people probably think it does. But some think that the moral obligation to obey political authority can be separated from an account of legitimate authority, or at least that such obligations arise only if further conditions hold. (shrink)

The financial crisis which recently occurred is the epiphenomenon of a structural crisis of advanced capitalism. Although it referred to a very different context the diagnosis made by Habermas in his work Legitimationsprobleme des Spätkapitalismus , published in 1973, remains a very useful key in order to understand the irreducibility of social policy and the way the post-Fordist capitalism assumes the mediation between the economic and the social sphere — that is, how it deals with both the deficit of rationality (...) and the deficit of legitimacy. Instead of being the political expression of social relations the neo-liberal system decouples labour and capital and, governed by financial markets, disconnects the social and the political rights and undermines the possibility of a true foundation of citizenship. In other words, the ‘refeudalization’ Habermas had reported as early as in Strukturwandel der Offentlichkeit (1962) remains quite topical. (shrink)

Let justice be a feature of the social order imposed by a state and legitimacy a feature of how it is imposed: one that makes the imposition acceptable. This article argues that, so understood, legitimacy is quite a distinct concern from justice; that the core concern is with showing how state coercion is consistent with people’s being free citizens; that this does not require showing that the state exists by consensus or contract; that the best hope of satisfying (...) the concern lies with arguing that state coercion need not be dominating; and that this is possible only within the republican theory that identifies freedom with the absence of domination, not interference. (shrink)

Despite being fundamental to democracy, the normative concept of the people, i.e. the demos, is highly unclear. This article clarifies the legitimacy of the demos’ boundaries by structuring the debate into three strains of justification: first, normative membership principles; second, its democratic functionality and the necessity of cohesion for this essential function; and third, a procedural understanding of the demos. It will be shown that normative principles can only justify its expansion towards the ideal of an unbounded demos. On (...) the other hand, the democratic function of the demos can be understood as a criterion for its restriction. This, however, is only possible on the basis of an existing polity and not for the initial constitution of the demos. Consequently, a legitimate demos has to take both inclusionary and exclusionary tendencies into account. These tendencies need to be weighed against each other in the democratic process, which leads to a fundamentally procedural understanding of the legitimacy of the demos. (shrink)

This paper discusses some models purported to legitimise a European supranational legal order. In particular, the author focuses on an application of the so‐called regulatory model to the complex structure of the European Community and the European Union. First of all, he tackles the very concept of legitimacy, contrasting it with both efficacy and efficiency. Secondly, he summarises the most prominent positions in the long‐standing debate on the sources of legitimation for the European Community. Thirdly, in this perspective, he (...) analyses several, sometimes contradictory, notions of the rule of law. His contention is that we can single out five fundamental notions of the rule of law and that some but not all of them are incompatible with or oppose democracy. Finally, the paper addresses the regulatory model as a possible application of the rule of the law to the European supranational order. The conclusion is that the regulatory model should be rejected if it is presented as an alternative to classical democratic thought, though it might be fruitful if reshaped differently and no longer assessed from a functionalist standpoint of deliberation. (shrink)

Some types of solar radiation management (SRM) research are ethically problematic because they expose persons, animals, and ecosystems to significant risks. In our earlier work, we argued for ethical norms for SRM research based on norms for biomedical research. Biomedical researchers may not conduct research on persons without their consent, but universal consent is impractical for SRM research. We argue that instead of requiring universal consent, ethical norms for SRM research require only political legitimacy in decision-making about global SRM (...) trials. Using Allen Buchanan & Robert Keohane's model of global political legitimacy, we examine several existing global institutions as possible analogues for a politically legitimate SRM decision-making body. (shrink)

Moral legitimacy entails intrinsic value and helps executives convince firm’s stakeholders and the general public of the ethical acceptability of an institution or its activities or projects. Social license to operate is the social approval of those affected by a certain business activity, and it is receiving increasing attention, especially in the context of controversial projects such as mining and public works. Moral legitimacy provides ethical support to SLO. Drawing from the Aristotelian-Thomistic tradition and taking substantive justice and (...) the common good of society as the key references, this paper applies the Triple Font of Morality Theory and proposes four criteria which serve to evaluate moral legitimacy: contribution of the project or activity to the common good in a better way than other alternatives, morality of the means and procedures employed, ethical evaluation of the situation including stakeholder concerns and needs, and ethical evaluation of reasonably foreseeable consequences associated with the project and how to minimize possible damage or risks, and balance foreseeable negative consequences and benefits. The application of these criteria is illustrated through a project, presented as a case study, which certainly involved controversy and problems with SLO. The project was the construction of a rail tunnel for a high-speed train near the foundations of the Sagrada Familia, the well-known monumental church in Barcelona, Spain. (shrink)

Matthew Lindauer, Peter Higgins, Jiewuh Song, and Ana Tanasoca have engaged thoughtfully with the work I present in _Justice for People on the Move_. I am very grateful for their insightful comments, critical remarks, observations about areas of agreement, useful suggestions for progressing important conversations, and invitations to elaborate on core issues. I cannot possibly discuss all the important issues they cover here, but in this response essay I address some of their most prominent concerns in the next four sections. (...) The first section engages with Matthew Lindauer’s critique. It covers the normative grounding for my account and its relationship with the human rights practice that I support. In the second section I discuss why legitimacy has such a prominent role in my argument, thus addressing Peter Higgins’s commentary. The third section reviews some points about the human rights practice. These clarifications help address Jiewuh Song’s and Ana Tanasoca’s queries about practical implications and strengthening implementation avenues. In the final section I cover how my contribution requirements function in judging state legitimacy. Drawing on this discussion I address points from Song’s and Tanasoca’s papers, such as epistemic challenges in assessing contributions to the legitimacy of the state system. (shrink)

This article aims to make conceptual room for a view about political legitimacy called the power-liability account. The view claims that politi- cal legitimacy is a form of normative power that entails moral liability, but not necessarily a moral claim-right that entails moral duty. The power-liability account supports appealing interpretations of justified civil disobedience in the face of legitimate but unjust law at home and of justified human rights interventions that violate legitimate international law abroad. I argue here (...) only for the conceptual possibility of this view, not for its normative correctness. I believe that the power-liability view indeed is correct, but it often is thought that the view not only is false but also incoherent. Many hold that entailed duty and immunity are built into the meaning of the concept of political legitimacy. My task is to loosen these conceptual strictures. (shrink)

Economic theories of democratic legitimacy (discussed here as minimalist theories) have criticized deliberative accounts of democratic legitimacy on the grounds that they do not represent a practical possibility and that they create conditions that make actual democracies worse. It is not simply that they represent the wrong ideal. Rather, they are too idealistic – failing to show proper regard for the cognitive and moral limitations of persons and the depth of disagreement in democratic society. This article aims (...) to show (1) that the minimalist criterion of democratic legitimacy is self-defeating and (2) that even if there are minimal cognitive, moral, and social requirements for the possibility of practicable deliberative democracy, these limitations do not necessarily impose insuperable barriers for democratic deliberation as the normative basis of democratic legitimacy. Thus, the limiting facts do not dictate the structure of appropriate normative models of democracy in the way minimalists have supposed. (shrink)

Which standards should we employ to evaluate the global order? Should they be standards of justice or standards of legitimacy? In this article, I argue that liberal political theorists need not face this dilemma, because liberal justice and legitimacy are not distinct values. Rather, they indicate what the same value, i.e. equal respect for persons, demands of institutions under different sets of circumstances. I suggest that under real-world circumstances – characterized by conflicts and disagreements – equal respect demands (...) basic-rights protection and democratic participation, which I here call ‘political justice’. I conclude the article by considering three possible configurations of the global order – the ‘democratic world-state’, ‘independent democratic states’, and ‘mixed’ models – and argue that a commitment to political justice speaks in favour of the latter. (shrink)

This article challenges the association between realist methodology and ideals of legitimacy. Many who seek a more “realistic” or “political” approach to political theory replace the familiar orientation towards a state of justice with a structurally similar orientation towards a state of legitimacy. As a result, they fail to provide more reliable practical guidance, and wrongly displace radical demands. Rather than orienting action towards any state of affairs, I suggest that a more practically useful approach to political theory (...) would directly address judgments, by comparing the concrete possibilities for action faced by real political actors. (shrink)

This Article explores the unacknowledged impact of the scientific provenance of modern law. Justice, I argue, is threatened by social scientific thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. (...) My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law. (shrink)

The study of political theology has never been a neutral exercise in excavating the theoretical origins of sovereignty. The political contexts in which questions arise are instructive. In this paper, I argue that the very language of representation and legitimacy articulated for Muslims in the contemporary world may occlude the political challenges that obviate their possibility. Biopolitics, the construction of tradition, the possibility of a ‘philosophical religion’ and the challenge of rationality, and the incompleteness of the critique (...) of political theology make the actuality of a critical and theoretical encounter with representation difficult at best, elusive at worst. (shrink)

Physicians commonly recommend ?placebo treatments?, which are not believed to have specific efficacy for the patient's condition. Motivations for placebo treatments include complying with patient expectations and promoting a placebo effect. In this article, we focus on two key empirical questions that must be addressed in order to assess the ethical legitimacy of placebo treatments in clinical practice: 1) do placebo treatments have the potential to produce clinically significant benefit? and 2) can placebo treatments be effective in promoting a (...) therapeutic placebo response without the use of deception? We examine evidence from clinical trials and laboratory experiments bearing on these two questions. The conclusion is reached that based on currently available evidence, it is premature to judge whether placebo treatments are ethically justifiable, with the possible exception of acupuncture for pain relief. (shrink)

At the center of Rawls’s work post-1980 is the question of how legitimate coercive state action is possible in a liberal democracy under conditions of reasonable disagreement. And at the heart of Rawls’s answer to this question is his liberal principle of legitimacy. In this paper I argue that once we attend carefully to the depth and range of reasonable disagreement, Rawls’s liberal principle of legitimacy turns out to be either wildly utopian or simply toothless, depending on how (...) one reads the ideal of reciprocity it is meant to embody. To remedy this defect in Rawls’s theory, I␣undertake to develop the outlines of a democratic conception of legitimacy, drawing first on Rawls’s generic conception of legitimacy in The Law of Peoples and second on a revised understanding of reciprocity between free and equal citizens. On this revised understanding, what free and equal citizens owe one another is not reciprocity in judgment, but reciprocity of interests. (shrink)

_Purpose._ The authors of this article aim to reveal how motivation and legitimacy ensure the normativity of the structuring and genesis of multiple social identity. _Theoretical basis._ Social constructivism was chosen as a research methodology. It reveals social identity as an identity constructed by its bearer on the basis of ready-made versions of social identity proposed by social groups and society. Social circles, identified by Georg Simmel, unite representatives of different social groups into a wider oneness, which can be (...) interpreted as a multiple social identity, and the motivation for its formation can be identified on the basis of Weber’s concept of legitimacy. _Originality._ Identifying the structure and genesis of a multiple social identity creates prerequisites for establishing its normative foundations, as well as for a specific analysis of the procedures for achieving its motivation and legitimacy. Georg Simmel’s concept of social virtues promotes consideration of the basic virtues of an individual as those that enable one’s to be a member of various social groups in which these virtues are manifested. _Conclusions._ The social virtues present in the social identities that are part of a multiple social identity determine not only the social status of these individuals in these social groups but also the ranking and normative significance of these groups for this individual. If the observance of virtues in a certain social group causes a higher motivation of an individual’s behavior, then this group acquires a higher legitimacy for her/him. Using the example of virtues, it is possible to search for other possible grounds for the formation of multiple social identity. Such grounds are primarily other characteristics of key social practices that support different social groups. (shrink)

The task of discovering the conditions of legitimacy is traditionally conceived as that of finding a way to justify a political system to everyone who is required to live under it. If the justification is successful, no one will have grounds for moral complaint about the way it takes into account and weighs his interests and point of view. Nagel uses Kant's unanimity criterion in relation to political institutions and to the individual lives of their members; he maintains that (...) unanimity could be achieved by us in many respects as we are, provided that we are also reasonable and committed within reason to modifying our claims, requirements, and motives in a direction that makes a common framework of justification possible. (shrink)

In the literature on refugeehood in political theory, there has been a recent turn towards what have been called “state system legitimacy” views. These views derive an account of states’ obligations to refugees from a broader picture of the conditions for international legitimacy. This paper seeks to develop the state system legitimacy view of refugeehood by subjecting the most developed version of it—the account developed by David Owen—to critical scrutiny. We diagnose an ambiguity in Owen’s theory of (...) refugeehood, in the concept of political membership, and unpack the implications of this ambiguity for state system legitimacy views. First, we reconstruct the key aspects of Owen’s account of refugeehood and show how it represents an advance over competing theories. Then we discuss the methodological underpinnings of Owen’s account, showing the constraints and opportunities faced by state system legitimacy views. Next, we raise some problems for the conceptual distinctions that Owen develops between different types of refugee protection: asylum, sanctuary, and refuge. The underlying feature that leads to these problems is an ambiguity in the concept of political membership, which is at the core of Owen’s view of refugeehood. Finally, we distinguish two interpretations of political membership in the institution of refugeehood and chart out some possible ways forward for state system legitimacy views. The critique developed here is a sympathetic one, aimed at the further development of state system legitimacy views. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Legitimacy, Performance, and Political Realism:Response to Ben CrossJiwei Ci (bio)Ben Cross raises important issues in his article and provides a much appreciated occasion for me to join the discussion. He targets his trenchant critique at what he calls Weberian sources of legitimacy, treating my view as a distinctive variation on the Weberian account. I am not sure that the issues on which we differ are most economically (...) framed by drawing Weber so prominently into the debate. Since Cross has already framed the issues in this way, however, I think I can best contribute to the exchange by accepting his terms of reference wherever appropriate and trying to work as fruitfully as possible within them. I will respectfully not take up any of the issues raised in the fourth section of the article, because Cross's use of the notion of civic agency there is so far removed from mine as to leave little room for productive engagement.As Cross notes, Weber identifies three distinct sources of legitimacy (or three types of authority): legality, the traditional, and the charismatic. This, however, is only a typology of specific sources and an incomplete one at that, for it does not cover the two sources that I happen to find most relevant in Democracy in China.1 The teleological legitimacy much discussed in chapter 1 of my book does not come under any of Weber's ideal types and seems to constitute another, distinct ideal type. Nor is the democratic legitimacy based on popular sovereignty that is proposed in chapter 3 as an alternative to teleological legitimacy quite the same as legal authority. It is thus easy to see that—and why—I do not avail myself of what Cross calls the Weberian sources of legitimacy. As a matter of fact, I do not [End Page 149] regard Weber's tripartite classification, regardless of whether it is exhaustive, as the conceptual core of his idea of legitimacy.Cross moves closer to that core when he notes the difference between the type of motive (i.e., non-expedient) that the three Weberian sources of legitimacy are supposed to have in common and the motive of pure expediency. This difference is important because, as Weber puts it in a well-known statement quoted by Cross, "Purely material interests and calculations of advantages as the basis of solidarity between the chief and his administrative staff result, in this as in other connexions, in a relatively unstable situation." Based on Weber's concern with the lack of stability characteristic of relations of pure expediency, Cross is then able to speak of a "Weber-inspired rejection of performance legitimacy." This conclusion, if not exactly mistaken, is nevertheless reached without adequately bringing out the issues involved.Take a close look at the passage in Economy and Society from which the above quote is taken:Purely material interests and calculations of advantages as the basis of solidarity between the chief and his administrative staff result, in this as in other connexions, in a relatively unstable situation. Normally other elements, affectual and ideal, supplement such interests. In certain exceptional cases the former alone may be decisive. In everyday life these relationships, like others, are governed by custom and material calculation of advantage. But custom, personal advantage, and purely affectual or ideal motives of solidarity do not form a sufficiently reliable basis for a given domination. In addition there is normally a further element, the belief in legitimacy.2Here it becomes clear that Weber, even in emphasizing the indispensable role of belief in legitimacy, argues his case much more cautiously and subtly than Cross gives one to understand. To begin with we see Weber take the trouble to stress "purely." We then find three qualifications in a row before Weber allows himself to conclude, as an empirical observation, that "custom, personal advantage, purely affectual or ideal motives of solidarity, do not form a sufficiently reliable basis for a given domination," from which he is apparently compelled to draw the inference that "there is normally a further element, the belief in legitimacy." In an earlier section of Economy and Society Weber makes similar allowances for the empirical proximity of motives... (shrink)

In this article, I engage with Derrida’s deconstructive reading of theories of performativity in order to analyse Max Weber’s sovereignty–legitimacy paradigm. First, I highlight an essential articulation between legitimacy and sovereign ipseity (understood, beyond the sole example of State sovereignty, as the autopositioned power-to-be-oneself). Second, I identify a more originary force of legitimation, which remains foreign to the order of performative ipseity because it is the condition for both its position and its deconstruction. This suggests an essential fallibility (...) of the performative, which implies a ‘mystical’ legitimacy and a paradoxical, divisible and self-differential representation of sovereignty. The structural differentiality of legitimacy and sovereignty signifies an irreducible coloniality of law and language, but also suggests the possibility of an unconditional resistance located in the radical interpretability of the law, beyond determined representations of powers, dominations, sovereignties or resistances. This reflection is triggered by a reading of Cynthia Weber’s theory of ‘performative states’, describing sovereignty under the form of an impossible ontology, which leads me to elaborate the notion of legitimation-to-come as a non-ontological ‘concept’: this notion of unconditional legitimacy, beyond sovereignty, binds beliefs and phantasms to the unpresentable force of the event. Pursuing the efforts of scholars such as Rob Walker and Cynthia Weber, I sketch the implications of this archi-performative legitimacy regarding the methodological protocols of International Relations and sociology, in view of elucidating the persistent ontological presuppositions of these disciplines. (shrink)

Three main motivations can explain compliance with social norms: fear of peer punishment, the desire for others' esteem and the desire to meet others' expectations. Though all play a role, only the desire to meet others' expectations can sustain compliance when neither public nor private monitoring is possible. Theoretical models have shown that such desire can indeed sustain social norms, but empirical evidence is lacking. Moreover it is unclear whether this desire ranges over others' “empirical” or “normative” expectations. We propose (...) a new experimental design to isolate this motivation and to investigate what kind of expectations people are inclined to meet. Results indicate that, when nobody can assign either material or immaterial sanctions, the perceived legitimacy of others' normative expectations can motivate a significant number of people to comply with costly social norms. (shrink)

In political science, the theme of critical citizenship is often interpreted negatively and understood to express distrust. However, criticism can be motivated by positive aspirations towards democracy and how to improve it. In order to test this idea, we asked respondents to the Democracy and citizenship survey to rank how the features of different types of democratic legitimacy appealed to them. The module adopted an innovative methodology by bringing together philosophy (political theory) and political science. This approach led to (...) a series of results that tempered and questioned the more prevalent pessimistic understandings of critical citizenship. Furthermore, this article looks closely at controversy surrounding the meaning ascribed to criticism and discusses the presuppositions made by many political sociology studies and their differing hypotheses on critical citizenship. It shows that the very definition of criticism remains unclear and proposes a ‘critical understanding of criticism’ adopting a meta-critical stance (as is often the case in philosophy) to better identify four possible types of criticism: reactive criticism (primary), evaluative, propositional (first or secondary order) and pluralist political criticism. (shrink)

It is increasingly common in the philosophical literature to claim that political legitimacy, normatively understood, comes in degrees. However, most authors fail to specify what talk of degrees means, and the notion remains opaque. Using the Hohfeld schema as a guide, I survey possible accounts, distinguishing them into “width”, “depth”, and “weight” proposals. I argue that each fails to provide a convincing account of scalar legitimacy. Thus, talk of degrees of legitimacy, as currently used, is in serious (...) need of explanation. (shrink)

This book offers a complete rethink of the institutional limits and possibilities of deliberative democracy and legitimacy. Examining several unresolved problems at the core of deliberative democratic theory, this volume will be vital reading for deliberative democratic theorists and public policy makers.

There is a worry about the intellectual legitimacy of philosophy. Although the sciences have a progressive history, with later theories largely building on earlier ones, and a tremendous amount of agreement within the scientific community about the approximate truth of current theory, philosophy is different. We do not see a progressive history of philosophical theorizing, and there is little agreement within the philosophical community about which theories are even roughly correct. This not only encourages a certain skepticism about the (...) possibility of philosophical knowledge, but a real question about whether the activity of philosophical theorizing is intellectually legitimate. It is argued here that there are features of a naturalistic methodology in philosophy which have the resources to respond to these concerns. (shrink)

Some contemporary paternalists argue in favor of government interventions based on how experimental psychologists and behavioral economists have found that our behavior often diverges from what would be predicted by rational-choice models. In this article it is argued that these findings can, more specifically, be used to identify decisional trouble spots where paternalist interventions may be legitimate. It is further argued that since the epistemic legitimacy of government paternalism ultimately rests on centralized decision-making having a comparative advantage, it also (...) depends on the possibility of such interventions being governed by an ideal of evidence-based policy-making. The article asks how stringently this requirement should be understood, and to what extent government can legitimately engage in what might be called experimental policy-making of a paternalistic character. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently would conclude (...) to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

Degradations of environmental quality often pose severe harms or at least adverse effects to individuals and societies. Perceiving any environmental pollution thus appears to be connected with an implicit claim for its prompt and complete removal. For example, the oil-spill from the "Prestige" accident at the western Spanish shoreline is surely still in everyone's mind, where—in a somewhat Sysiphos-effort—a lot of helpers tried to remove the huge masses of oil mud, washed repeatedly ashore. However, alternative rehabilitation conceptions are also conceivable (...) for certain pollution problems, which may be less unhealthy and possibly more efficient. Among them, taking advantage of natural occurring processes, which are grouped in this context as "natural attenuation" (NA), is an emerging and challenging but possibly also a questionable approach. NA as remediation strategy is, therefore, often discussed controversially among experts and actors as well as in the public (Teutsch/Rügner 2000). This is partly due to still open scientific or technical questions but also due to legitimacy problems of natural attenuation on ethical and juridical levels (Steffens et al. 2002; Heinz 2002). Therefore, a balanced view on adequate natural attenuation seems to be necessary. The following analysis will review NA as rehabilitation means from the normative perspective, giving some general statements—and thus orientation—for public policy making as well as for the administrative level. (shrink)

What can constitutional law contribute to the justification of political power? Quite a lot, Frank Michelman argues in Constitutional Essentials. It can establish a publicly known framework for addressing the deep disagreements that are inevitable in any free society. Michelman’s analysis has powerful attractions, but he overclaims the clarity with which rights can be defended within the Rawlsian framework he contemplates. The interests that courts must defend will vary from one society to another, depending on what the locals happen to (...) value. They cannot therefore be derived abstractly from the moral powers. In John Rawls’s four-stage sequence, writers of constitutions, legislatures, and courts necessarily consider contestable ideas of the good. Deep disagreement even about political fundamentals is a permanent condition of political life in a free society. Social unity is possible, but it is a more unstable unity than Rawls and Michelman imagine. (shrink)

This paper critiques the version of the argument that the regulation of hateful speech by the state undermines its democratic legitimacy made by Ronald Dworkin and James Weinstein. It argues that in some cases the harmful effects of hateful speech on the democratic process outweigh those of restriction. It does not challenge the central premise of the Legitimacy Argument, that a wide-ranging right to freedom of expression is an essential political right in a liberal democracy. Instead, it uses (...) ideal and nonideal theory as a framework for judgements about the regulation of hate speech. The mistake underpinning the Legitimacy Argument is that it assumes that other conditions pervade that make an ideal democratic procedure possible when they do not. In reality the state can be put in a position where, whatever course of action it takes with regard to the regulation or non-regulation of hate speech, some citizens will not be able to participate fully in political deliberation. Under such conditions there remain strong pro tanto reasons not to regulate hate speech on democratic grounds, but they are not all-things-considered reasons, and there are also pro tanto reasons to regulate hate speech that might outweigh them in some cases. This leads to the cautious conclusion that while there might be a normative justification for the regulation of hate speech in individual instances, the debate is best understood as one between competing pro tanto reasons, and must be approached on a case-by-case basis. (shrink)

Suppose we have a persistent disagreement about a particular set of policy options, not because of an underlying moral disagreement, or a mere conflict of interest, but rather because we disagree about a crucial non-normative factual assumption underlying the justification of the policy choices. The main question in the paper is what political legitimacy requires in such cases, or indeed whether there are defensible answers to that question. The problem of political legitimacy in fact-dependent policy disagreements has received (...) almost no attention in political philosophy, which has focused mostly on value disagreements and proposed theories of legitimate coercive legislation in valuedependent disagreements. The paper presents an argument showing that under certain plausible assumptions regarding legitimacy, there are serious difficulties in identifying legitimate choices in fact-dependent policy disagreements. This may be unsurprising to political philosophers preoccupied with value-based disagreements, perhaps because it has been assumed that legitimacy-related concerns are irrelevant to fact-dependent policy disagreements. The paper argues that this response is premature. If we should care about legitimacy et al.l, then it is by no means clear why we should ignore issues of legitimacy in policy-disputes that depend on factual disagreements. The paper ends by defining a set of possibilities that merit further exploration in search of a theory of legitimacy in fact-dependent policy disagreements. (shrink)

This essay examines the political-philosophical legitimacy of critical thinking as an aim of compulsory education. Although critical thinking is given an important role in Norwegian educational policy, the right to demand a critical attitude from all citizens has been extensively debated in political and pedagogical philosophy the last two decades. This debate stems in large part from the late work of John Rawls. In this essay, I start by stating the case for critical thinking as an educational aim, focusing (...) on democratic education. Next, I give an account of the challenge that Rawls’ later philosophy puts to education for critical thinking. Finally, I discuss some possible ways of responding to the Rawls. The upshot will be that some aspects of critical thinking can and must be defended as politically legitimate. However, any such defence must include a reply to the Rawlsian argument – if not, it will simply be naïve. In that sense, much Norwegian educational policy has been naïve. (shrink)

If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority (...) to enable subjects to comply better with reasons that already apply to them. Hence, the service conception bases the legitimacy of practical authority on a certain kind of greater knowledge or expertise. This helps to focus the conundrum regarding complicity on the clash of expertise between the medical expert and the governing body tasked with coordinating behaviour and otherwise devising rules for the social good. The ethical dilemma presented by a hypothetically legitimate directive to act against a professional's best medical judgment also serves to highlight the moral dimension of one's duty to obey a legitimate authority. (shrink)

This paper analyses the possibility of granting legitimacy to democratic decisionmaking procedures in a context of deep pluralism. We defend a multidimensional account according to which a legitimate system needs to grant, on the one hand, that citizens should be included on an equal footing and acknowledged as reflexive political agents rather than mere beneficiaries of policies, and, on the other hand, that their decisions have an epistemic quality. While Estlund’s account of imperfect epistemic proceduralism might seem to (...) embody a dualistic conception of democratic legitimacy, we point out that it is not able to recognize citizens as reflexive political agents and is grounded in an idealized model of the circumstances of deliberation. To overcome these ambiguities, we develop an account of democratic legitimacy according to which disagreement is the proper expression of citizens’ reflexive agency and the attribution of epistemic authority does not stem from a major expertise or specific ability, but it comes through the public confrontation among disagreeing agents. Consequently, the epistemic value of deliberation should be derived from the reasons-giving process rather than from the reference to the alleged quality of its outcomes. In this way, we demonstrate the validity of the multidimensional perspective of legitimacy, yet abstain from introducing any outcome-oriented criterion. Finally, we argue that this account of legitimacy is well suited for modeling deliberative democracy as a decision-making procedure that respects the agency of every citizen and grants her opportunity to influence public choices. (shrink)

Johann Gottfried Herder (1744-1803) has been called the German Rousseau. Yet while Rousseau is recognized as a political thinker, Herder is not. This book explores each thinker's ideas--on nature and culture, selfhood and mutuality, paternalism, freedom, and autonomy--and compares their conceptions of legitimate statehood. Arguing that the crux of political legitimacy for both men was the possibility of "extended selfhood," Barnard shows that Herder, like Rousseau, profoundly altered human self-understandings, thus influencing modes of justifying political allegiance.

This essay examines certain epistemic problems facing administrative states’ efforts to draft efficient regulations for their societies. I argue that a basic feature of the administrative state’s authority, namely its monopoly over the production of legally binding rules for all members of a geographically defined society, creates epistemic problems that impede efficient rule-making. Specifically, the administrative state’s monopoly over the production of legally binding rules prevents multiple public policies from being simultaneously implemented and compared. The resulting singularity of administrative states’ (...) regulatory decisions prevents observation of the counterfactual effects of policies that were possible but which were not implemented. The absence of observable policy counterfactuals frustrates efforts to assess the efficiency of administrative states’ decisions, as it is impossible to determine whether different policies would have generated greater benefits at lower cost than the policy the state implemented. As these epistemic problems are derived from the singularity of administrative states’ decisions, they exist independently of principal agent problems, suboptimal incentives, or the preferences and capabilities of administrative personnel. (shrink)

This is a good book. It is good because: (a) it outlines well the central arguments of the debate (that is, the arguments relating to what a miracle is, whether they are possible, whether we can have evidence of their occurrence, and what would follow from such evidence were we to have it); (b) it furthers the debate; and (c) it is a clearly written. If you are a philosopher religion whose research area is miracles, the book is a must-read. (...) If you are philosopher of religion whose research area is not miracles, then, as the book connects with core topics in this field, it will prove a valuable read. If you are merely a philosopher, there are far worse things you could be reading.Rather than provide a summary of each chapter of the book (Larmer provides such a summary on pages 3 and 4 of his introduction [which one can access freely online] and I cannot offer better), I will outline some of the book’s arguments. The type of arguments I focus on are not explicitly formulated by Larmer, t .. (shrink)

This paper discusses how the general and abstract concept of legitimacy applies to international institutions, using the United Nations Security Council as an example. We argue that the evaluation of the Security Council’s legitimacy requires considering three significant and interrelated aspects: its purpose, competences, and procedural standards. We consider two possible interpretations of the Security Council’s purpose: on the one hand, maintaining peace and security, and, on the other, ensuring broader respect for human rights. Both of these purposes (...) are minimally morally acceptable for legitimacy. Second, we distinguish between three different competences of the UNSC: 1) the decision-making competence, 2) the quasi-legislative competence, and 3) the referral competence. On this basis, we argue that different procedural standards are required to legitimise these competences, which leads to a more differentiated understanding of the Security Council’s legitimacy. While maintaining that the membership structure of the Council is a severe problem for its legitimacy, we suggest other procedural standards that can help to improve its overall legitimacy, which include broad transparency, deliberation, and the revisability of the very terms of accountability themselves. (shrink)

This article explores the prospects for developing a realist political theory via an analysis of the work of Bernard Williams. It begins by setting out Williams’s theory of political realism and placing it in the wider context of a realist challenge in the literature that rightly identifies several deficiencies in the liberal view of politics and legitimacy. The central argument of the article is, however, that Williams’s political realism shares common features with liberal theory, including familiar normative concerns and (...) a consensus view of the political and political legitimacy, which results in it replicating rather than overcoming the weaknesses that other realists have recognized in liberalism, thereby making it vulnerable to the same criticisms. Though these are taken to be significant problems for Williams’s theory, the purpose of making this argument is not to undermine the prospects for a realist political theory but to indicate obstacles and difficulties that any compelling account will need to address. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS 503 Possibility, Necessity, and Existence: Abbagnarw and His Predecessors. By NINO LANGIULLI. Philadelphia: Temple University Press, 1992. Pp. xv + 205. $44.95 (cloth). Although Nicola Abbagnano would agree in some sense with the currently fashionable claim that metaphysics is dead, Nino Langiulli's treatment of Abbagnano's thought constitutes a challenge to that claim. The aim, of Possibility, Necessity, and Existence is "to expound and elucidate historically (...) and analytically the concepts of possibility, necessity, and existence as they are refracted through the thought of the twentieth-century Italian philosopher Nicola Abbagnano." Langiulli characterizes Abbagnano as a bold and original thinker whose defense of "possibility" as the fundamental sense of being is understood by Abbagnano himself as an anti-metaphysical position. In his critical reflections, however, especially in the last chapter, Langiulli shows that Abbagnano is indeed engaged in an inquiry that can only be called metaphysical. Parts I and II are preparatory to the third part in which the concept of possibility and its relation to existence are most directly addressed. Part I provides a historical overview of four phases of the movement of Abbagnano's thought "from a positive existentialism to a radical empiricism." Abbagnano's version of existentialism is "positive" in that it sees in human finitude the very possibility of man's relationship with being. Here Abbagnano is distinguished from other existentialists such as Heidegger, Jaspers, Marcel, and Sartre. His criticisms of these positions are among the most important and interesting parts of the book. Heidegger and Jaspers both begin by apprehending human existence as a structure of possibilities but then reduce human existence to a structure of impossibilities. Christian existentialists such as Marcel really treat possibilities as potentialities to be inevitably realized. For Sartre all possibilities are equivalent, but for Abbagnano "the complete arbitrariness of choice among human possibilities does not imply freedom at all, but the impossibility of choice" (18). Here also Langiulli's comparison of Abbagnano with Quine, Sellars, and Rorty is pertinent and illuminating: Abbagnano would share Rorty's criticism of Quine and Sellars for holding on to vestiges of the old empiricism, but Abbagnano would not accept Rorty's "emptying" of philosophy itself. The influence of Abbagnano on his student Umberto Eco and on Gianni Vattimo and the differences between Abbagnano and Derrida's views of possibility are spelled out by Langiulli. In a section entitled "Dumping Philosophy and the Madness of It That Is Also Folly," Langiulli locates Abbagnano clearly and precisely within the debate over the legitimacy of reason. Abbagnano finds the basis of philosophical madness in the persistent tendency to take one aspect of human life as an absolute determinant, thus marginalizing or ignoring all others. "This privileged status has even been attributed to reason, but only when it 504 BOOK REVIEWS is absolutized or divinized as a superhuman force regulating the whole of nature, humanity included, according to necessary and necessitating laws" (39). So, for example, the order of mathematics or the techniques of verification and control employed in physics are transferred to the human world. But Abbagnano's rejection of absolutized reason is not a rejection of reason as such. He sees the current favoring of the nonrational and irrational aspects of life as a kind of folly and madness, "the vertigo of absurdity." The deliberate and crass ignorance of history and the search for novelty are also forms of madness. Part II consists of four chapters that trace the sources for Abbagnano's concept of possibility. The first of these sources is Plato's treatment of existence and possibility in the Sophist, where Abbagnano finds what he takes to be the antecedent for his own thought and for existentialism in general: the idea that possibility is both the structure and the ground of existing things. The two persistent themes of Greek metaphysics that Abbagnano is concerned to overcome are found most explicitly in Aristotle: the priority of actuality over possibility and the primacy of necessity over possibility. Kant is credited with opening the path for contemporary thought with his concept of real possibility (as distinguished from merely logical possibility). Finally, Abbagnano is indebted to Kierkegaard's criticisms of Aristotle and Hegel in the Philosophical... (shrink)

In this paper the author first presents a critical account of some basic views of Habermas' Discourse Philosophy. He points out some difficulties inherent in notions such as valid justification in argumentation theory, in the notion of ideal form of discourses, and in consensus theory of truth. Secondly, he focuses on Habermas' conceptions of validity, acceptance and legitimacy of law from the perspective of neo‐institutionalism. In particular, (i) the author argues that Habermas' definition of legal validity is unclear and (...) unrealistic; (ii) the author stresses the distinction between acceptance and acceptability; (iii) Habermas presupposes harmony between sovereignty and human rights postulates, but the present author takes into account the possibility of conflicts between autonomous popular decisions and human rights which must be resolved by methods of discursive democracy; (iv) criteria for acceptance of law cannot be fixed by a stipulative definition, but are in social discussion; (v) legitimacy is not an objective feature of valid law and presupposes an evaluation based on our political convictions. (shrink)

For many contemporary liberal political philosophers the appropriate response to the facts of pluralism is the requirement of public reasonableness, namely that individuals should be able to offer to their fellow citizens reasons for their political actions that can generally be accepted.This article finds wanting two possible arguments for such a requirement: one from a liberal principle of legitimacy and the other from a natural duty of political civility. A respect in which conversational restraint in the face of political (...) agreement involves incivility is sketched.The proceduralist view which commends substantive disagreement within agreement on procedures is briefly outlined, as is the possible role for civic virtue on this view. (shrink)

In several avenues of contemporary research, much attention is devoted to the contrast between the real authority of institution and their formal power, in the analysis of institutional funtionings; also in the study of the relationships between institutions on the one hand, rules, principles or norms on the other hand. Such a contrast appears to be based on familiar observations: the capacity of institutions to get their preferred outcomes is sometimes loosely connected with the hierarchical prerogatives of the considered institutions. (...) More particularly, current studies of the „migration authority” bring out possible shitts in real authority while there is no changein the formal structure of power. This article will partly consist in the explanation of recent results of common reaserch in project „Delicom”, in which a formal treatment of the distinction has been put foward. This approach will be set against the background of recent contributions in political science or economics. The revelance of the problematic for the study of competence delegation among institutions will be stressed all along. (shrink)

How should we understand human rights and why might we respect them? The current literature – both philosophical and historical – presents a barrage of conflicting accounts, including moral, functional, deliberative, legal, consensual, communitarian and pragmatic approaches. I argue that each approach captures a unique, common-sense – and, in principle, compatible – insight into why human rights warrant respect. Acknowledging this compatibility illuminates the myriad different avenues for legitimacy human rights enjoy, and provides a historical window into explaining how (...) human rights rose to become the international community’s ethical lingua franca. The depth and spread of convergence on human rights proved possible precisely because myriad people the world over found a wealth of disparate reasons for rallying under its banner. But even as human rights enjoy seven distinct sources of legitimacy, I argue that they are thereby opened for normative challenge on seven distinct fronts. (shrink)

One of the most interesting features of Jürgen Habermas’s latest work on democracy is his attempt to acknowledge the problem of social complexity while remaining faithful to the core idea of the Rousseauian conception of democratic legitimacy: the idea that legitimacy is grounded on citizens’ participation in processes of opinion- and will-formation which ensure the reasonableness of collectivedecisions. The challenge for Habermas is to show how it is possible to conciliate the consequences of social complexity with this understanding (...) of legitimacy and popular sovereignty. Does Habermas’s attempt succeed? This is the question examined in the present article.L’un des aspects les plus intéressants du dernier ouvrage de Jürgen Habermas est sa tentative de reconnaître le problème de la complexité sociale tout en demeurant fidèle a I’idée centrale de la conception rousseauiste de légitimité démocratique. Cette dernière est fondée sur la participation du citoyen aux processus de formation de I’opinion publique et de la volonté populaire, qui seule peut assurer le caractère raisonnable des décisions collectives. Le défi que doit relever Habermas consiste à démontrer la possibilité de concilier les conséquences de la complexité sociale avec cette compréhension de la légitimité et de la souveraineté populaire. Peut-on considérer la tentative de Habermas comme un succès? Voilà la question qui sera abordée dans le présent article. (shrink)