Legitimacy in Democratic Societies

Mark Harrrison Moore



Professor Mark Harrrison Moore
Harvard University, Cambridge, United States.

Legitimacy is a quality much prized by governments. The reason is not hard to understand. As a practical matter, all governments depend on the willingness of their citizens to “go along” with the policies of the government. Without such tolerance, the work of government becomes very hard indeed – with government having to use both force and money just to keep the peace, let alone advance more hopeful and ambitious social goals. What government needs, of course, is not an abstract ideal of legitimacy, but a concrete, widely shared perception among individuals and factions in the polity that the government is acting for ends, using means, that are efficient, effective, fair, and just. In making that judgment, individuals and factions may rely on particular ideas of the good and the just and use those ideals as a template to compare what government proposes to do and actually does to form their views of government’s legitimacy in general or in particular cases. But the ideals have little standing or behavioral force unless they are widely endorsed, and attached to political action that seeks to influence government conduct.

Generally speaking, political leaders court, and citizens grant, legitimacy to government action on the basis of appeals to several different sources of legitimacy.

The first might be to appeal to the law. The claim that no one is above the law is a powerful claim. It is particularly powerful if the law requires government officials to do the specific thing they propose to do. It is less powerful if the law permits but does not require the specific actions to be taken. In that case, the government has to add reasons for its action.

This leads to the second source of legitimacy – the claim to expertise. The reason government proposes to take (or has taken!) a particular action is because it judges that the action taken will advance the public good or an ideal of justice. The government claims the expertise to have assessed an allegedly problematic social condition, imagined some ways to improve that condition using public assets, and chosen the best available alternative. Trust us; we’re the government and we know what we are doing.

The evident weakness of the claim to expertise leads inevitably to the third source of legitimacy – the claim that individuals and factions affected by the action consented to the action. This, of course, is what we mean by democratic legitimacy. Securing it often means that government must go through an arduous process of consultation, deliberation, negotiation, compromise, re-design, and learning as the public comes to a more or less tacit judgment about what they would like the government to do with the collectively owned assets of the state.

The last source of legitimacy can be found in moral judgments about what is the good or right thing to do. For individuals who have a strong moral sensibility, the simple moral judgment about what is good or right to do may be the single most important basis of legitimacy. Individuals will grant legitimacy only to actions that are at least consistent with, and might ideally perfectly advance their particular moral idea.

One of the virtues of democracies is that they seek to protect the rights of individuals to have their own views of what is valuable, good, just and fair, and to bring those ideas to bear in their own lives, in their communities, and in their nation.

But when choices become public – when they affect the well-being or rights of others, or involve the use of the collectively owned assets of the state – then democratic citizens must find ways to accommodate the moral views of others. Then, reaching agreement is (sometimes) facilitated by appeals to collective judgements made with the help and guidance of the law, expertise, and public deliberation.

The practical and moral challenge facing governments and the officials who lead them is to build public legitimacy and support for the choices they make. That cannot be rooted in their own individual moral views, and particularly not if their views are idiosyncratic or unprincipled. They must pay homage to the “common opinions of mankind” as they have been shaped by experience, individual reflection, and collective deliberation.

To no small degree, the common opinion of mankind lies somewhere within the existing laws, the shared knowledge of contemporary conditions and ideas about how they might be improved, and public deliberations that combine the individually held knowledge and values in a collective judgment about what should be done – that is, in a public policy formally authorized by some political/governmental process.

What we have recently seen in our politics and government is partisans fighting for advantage by opportunistically taking advantage of one or the other of these sources of legitimacy in efforts to insist on the ultimate legitimacy of their particular ideas.

When questions arose about the political legitimacy of the election of Donald Trump as a result of Russian interventions in the electoral process, the system sought to use a largely judicial and legal remedy to resolve the uncertainty and sustain or undermine the legitimacy of Trump’s presidency. They created a special counsel to use its knowledge of the law, its impartiality, and its investigative expertise to determine whether any laws had been broken in the election.  Law was asked to confront politics.

Faced by the legal threat to his legitimacy, Trump struck back politically by emphasizing the fact that he had won the election, and undermining the claims of law, objectivity and expertise in the Special Counsel’s investigation through political appeals to his strongest supporters. Politics confronted the law.

Then, when the Special Counsel’s report was completed, the law (in the form of restrictions on what could be released publicly, and the Attorney General’s authority over the release of the report) was used to protect the President from a close Congressional investigation led by Democrats. Law was used blunt politics.

Then, when the Attorney General failed to release the report of the Special counsel, the House of Representatives mounted a political and legal challenge to the failure of Barr (and President Trump)

 What is interesting in this flurry of high stakes politicking how vital and important the question of legitimacy seems to be, and how contending factions are doing everything they can to shore up their position by tapping into two different sources of legitimacy. The President first wants to insist that his legitimacy rests entirely on the fact of his election (despite the fact that that serious legal and expert questions arise about whether he won the election “fair and square.) Then, when questions still exist about his legitimacy after investigation, he wants to rely on the law for vindication and protection, even though he had previously disparaged the legal process, and continues to face serious legal charges against him in his political, governmental and economic life.  The Democrats first hoped that an impartial, expert legal investigation would resolve the matter of the President’s legitimacy, but found that they had to fight and win a political war as well as a legal skirmish to create room for the legal solution to appear, and then to find a way to counter the success that Trump had had in a political war that undermined the work of the special counsel.

Of course, it is not surprising that political competitors (factions) would use any tool at hand in trying to build the legitimacy of their positions. And I think it is appropriate that a problem that began with tainted politics has to be solved through politics rather than simply through law, if for no reason other than that laws are mostly just old political agreements.

But the sorry situation we find ourselves in helps to remind us exactly how much we all have at stake in concepts of legitimacy, how they are fashioned within political discourse from different materials, but how much they ultimately depend on social and political agreements fashioned within a particular economic, social and political culture. In the end, legitimacy depends most fundamentally on what each of us alone, and all of us together, thinks is good, right, and just. To make that decision well, we have to recover our ability to think and reason together rather than shout at one another.

Conscience is thought to be an individual trait that guides us towards right thought and action. But it is important to know that conscience is neither constructed, nor sustained, nor helped to become powerful without the guidance of others, and not just the others with whom we are most comfortable. A democratic conscience is constructed from awareness, empathy, and maybe even some sympathy for the others with whom we inhabit the world.


Legitimacy; Democratic Societies; World; Politics

DOI: https://doi.org/10.21902/jbslawrev.%20foco.v13i1.144


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Revista Foco (Journal of Business Studies and Law), e-ISSN: 1981-223X

Rua Chile, 1678, Rebouças, Curitiba/PR (Brasil). CEP 80.220-181

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