Larry Solum's Legal Theory Lexicon on 'legitimacy'

Larry Solum (that's Lawrence B. Solum, John E. Cribbet Professor at the University of Illinois College of Law, Champaign and Professor of Philosophy, University of Illinois, to you, thank you very much - one of our leading jurisprudentialists and, I'm pleased to say, a dear friend over several decades) publishes, as part of the well-known Legal Theory Blog, a gradually expanding dictionary of basic concepts in legal theory called the Legal Theory Lexicon. It is of immense value not just to students - it is aimed at first year law students with an interest in theory - but also to professors and others looking for a short but always intelligent and straightforward account of key concepts and terms, ranging from legal philosophy to law and economics and so on.

In his most recent post, Larry takes up that question so vital in discussions of international law - certainly it is at the center of much of my own work whether in law narrowly or such broader areas as international organizations, global civil society, the UN, etc. - what is legitimacy?

As Larry himself would say on the Legal Theory Blog, highly recommended! Here is a bit to give you the flavor:

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Conceptions of Legitimacy

Concepts and Conceptions

The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization. Let’s take a look at four different notions of legitimacy ....