Ethics, July 1999 v109 i4 p739 Justification and Legitimacy(*).
(philosophy of the state) A. John Simmons. Abstract: Different arguments are needed to show that a state is justified and that it is legitimate. Justifying the state is associated with the treatises of 18th-century philosophers. The Lockean approach to this issue captures features of institutional evaluation that the Kantian approach does not. Standard justifications of the state are offered to those motivated by objections to states. Full Text: COPYRIGHT 1999 University of Chicago In this article I will discuss the relationship between two of the most basic ideas in political and legal philosophy: the justification of the state and state legitimacy. I plainly cannot aspire here to a complete account of these matters, but I hope to be able to say enough to motivate a way of thinking about the relation between these notions that is, I believe, superior to the approach which seems to be dominant in contemporary political philosophy.
Today, showing that a state is justified and showing that it is legitimate are typically taken to require the very same arguments. I will argue that this contemporary stance obscures the difference between two central ways in which we should (and do) morally evaluate states, and it generates confusions about other serious practical issues, such as those surrounding our moral obligations to comply with law. I begin (in Secs. I and II) with brief discussions of the ideas of justification and legitimacy and with an attempt to capture what ought to be most central in our concerns about these ideas. I turn then (in Sec. III) to two basic ways of thinking about the relation between justification and legitimacy that I want to distinguish: what I will call the Lockean and the Kantian approaches.(1) Next (in Sec. IV), I argue that the minority Lockean approach to this issue captures essential features of institutional evaluation that the majority Kantian approach does not, and I add (in Sec.
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V) brief mention of one further complication facing any adequate account of political evaluation. The project of “justifying the state” is one that we tend to associate with the great political treatises of the seventeenth and eighteenth centuries, and especially with those of the philosophers in the social contract tradition, such as Hobbes, Locke, or Kant. We study these historical texts in large measure because of their perceived contributions to a justificatory project that many feel confident in claiming as “the central task of social and political philosophy.”(2) But for all this, we are not always as careful as we might be in specifying exactly what this justificatory project amounts to or how the justifications offered differ from other kinds of institutional evaluation defended within the same works. In order to clearly distinguish what I take to be two importantly different dimensions of these philosophical enterprises, I want to begin with some very general thoughts about practical justification. Justifying an act, a strategy, a practice, an arrangement, or an institution typically involves showing it to be prudentially rational, morally acceptable, or both (depending on the kind of justification at issue).
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And showing this, in standard cases, centrally involves rebutting certain kinds of possible objections to it: either comparative objections–that other acts or institutions (etc.) are preferable to the one in question–or noncomparative objections–that the act in question is unacceptable or wrong or that the institution practices or sanctions wrongdoing or vice. Justification, we might say, is in large measure a “defensive” concept, in that we ask for justifications against a background presumption of possible objection:(3) so we try to justify moral principles by showing them to be true or valid, to defeat the objections of the skeptic or nihilist; we justify coercion against a background general presumption in favor of liberty; we justify our actions in legal settings against concerns about apparent or prima facie illegality; and so on. A moral theory that is maximizing, that requires that acts or institutions (etc.) be the best possible (in the circumstances) in order to be justified–such as maximizing forms of utilitarianism–will require for justification showing that all comparative moral objections can be met (i.e., it produces what I have called “optimality justifications”(4)).
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Nonmaximizing moral theories, by contrast, may allow that all acts or institutions which avoid breaching applicable moral rules are justified, even if some are in different respects preferable to others (i.e., they produce what we can call “permissibility justifications”).
Kantian and traditional natural law theories are often understood in this way, so that justification requires only a showing that all noncomparative objections can be met. If an act or institution is consistent with God’s commands, passes the “consistent willing” test of the Categorical Imperative, or avoids infringing anyone’s rights, this by itself may move it across the threshold of justifiability.(5) But what is it to justify the state? “Justifying the state,” with its all-inclusive tone, might at first be thought to have to involve showing that every possible state is immune to any systematic noncomparative moral objections. Or it might be taken to involve showing that any possible state is preferable to (or as good as) any possible condition of statelessness. If we understand “justifying the state” in either of these senses, then justifying the state is, I think, impossible.
Many states are and have been hopelessly immoral and extraordinarily dangerous places to live. Even those who find Hobbes’s arguments otherwise persuasive seldom agree with his (apparent) contention that life in any kind of state, no matter how violent or oppressive, is to be preferred to any kind of life outside the state.(6) On this point some variant of Locke’s (opposed) position seems correct: life in a pure state of nature or in some nonstate cooperative arrangement, subject though it might be to all of the incommodities of insecurity, lawlessness, and vulnerability such a state could be expected to involve, is still a life to be preferred to life in a state ruled by a cruel and unchallengeable tyrant, where injustice is systematic or wildly random and irresistible.(7) If `justifying the state’ is to identify any plausible enterprise in political philosophy, then it should at least be taken also to be accomplished if we can show that one or more specific kinds of state are morally defensible (comparatively or noncomparatively).(8) So, I suggest, we can justify the state by showing that some realizable type of state is on balance morally permissible (or ideal) and that it is rationally preferable to all feasible nonstate alternatives.(9) In the course of such a justification we will typically argue that certain virtues that states may possess or goods they may supply–such as justice or the rule of law–make it a good thing to have such states in the world. Such a justification, of course, will provide some comfort to those who have chosen to live in a justified state: their choice wasn’t a dumb choice–the state is a good bargain–nor was it a choice to participate in an immoral arrangement. But most of us don’t choose the states in which we live, and almost none of us chose to live in a state (as opposed to something else).
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It seems plain that standard justifications of the state are offered not to happy participants in states but to those moved by certain kinds of objections to states. The background objection against which such attempts to justify the state are intended to be mounted must be understood to come from the anarchist, who denies that any state can be morally and prudentially justified.(10) A common anarchist view, of course, is that anything that is sufficiently coercive (hierarchial, inegalitarian, etc.) to count as a state is also necessarily, and for that reason, morally indefensible and prudentially irrational. States necessarily do and sanction wrong, or are necessarily in other ways practically inferior to life without the state.(11) Justifying the state would involve showing that these anarchist views are false. And the justification of the state will be stronger as the kinds of states that are justified are more numerous or more like past or existing states–with the strongest possible justification of the state then being of the (unsuccessful) Hobbesian sort. One can see a contemporary version of this conception of “justifying the state,” for instance, in Robert Nozick’s well-known political philosophy. For Nozick, “the fundamental question of political philosophy … is whether there should be any state at all. Why not have anarchy? … If one could show that the state would be superior even to [the] most favored situation of anarchy …, this would … justify the state.”(12) Of course, Nozick does not (attempt to) justify the state in an especially strong fashion, for he goes on to argue (in pt. 1 of his book) that only the minimal state is justified; any more extensive state than that, Nozick claims (in pt. 2), cannot be justified. Nozick argues only for the justification of the minimal state; but he does so precisely by trying to show that such a state could arise and function without violating anyone’s rights in the process–thus rebutting the anarchist’s objection that even the minimal state would necessarily do or sanction wrong (i.e., would violate rights) and so could not be morally justified–and by trying to show that such a state would arise naturally (guided by an “invisible hand”) from any state of nature–thus establishing, against the anarchist, that the minimal state is prudentially superior to nonstate alternatives (i.e., that it is desirable to have states).
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While Nozick is not as clear about any of this as we might wish, it is important to see that this justification of the state is not for him the only dimension of the evaluation of states.(13) Indeed, given Nozick’s orientation toward historical (or “pedigree”) evaluations of institutional arrangements, his justification of the state in terms of a purely hypothetical account of a minimal state’s genesis might seem a complete non sequitur.(14) Showing that it is possible for a (certain kind of) state to arise and function without immorality and that having such a state would be a good thing–that the state is justified, on Nozick’s model–is obviously not the same thing as showing that a particular actual state (even of that kind) did in fact arise and does in fact function in morally acceptable ways. Rather than having located a deep confusion in Nozick’s thought, however, I think this observation points the way to a quite basic distinction between justification and legitimacy. For notice that Nozick also defends an independent account of state legitimacy. Showing that a particular state is legitimate appears to be for Nozick a function of showing that the actual history of the state’s relationship to its individual subjects is morally acceptable).(15) It is Locke’s political philosophy, of course, that provides the model for this sort of distinction between political justification and legitimacy (though Locke himself never uses these terms to describe the distinction).
But Locke, in my view, is in certain ways clearer about the distinction than is Nozick. For Locke, remember, “no one can be put out of [the state of nature] and subjected to the political power of another without his own consent.”(16) Political power is morally legitimate, and those subject to it are morally obligated to obey, only where the subjects have freely consented to the exercise of such power and only where that power continues to be exercised within the terms of the consent given. The legitimacy of particular states thus turns on consent, on the actual history of that state’s relations with its subjects. But Locke also offers us (especially in chap. 9 of the Second Treatise of Government) a different and quite general argument for the moral and prudential preferability of states ruled by limited governments to life in the state of nature. This other argument is plainly addressed to those who maintain that the state in any form is morally or prudentially inferior to life without the state. Notice that in justifying the (limited) state–by rebutting the anarchist objection–Locke says nothing about the actual consent that is required to legitimate a particular state with respect to its subjects.(17) That the limited state is justified–that having limited states (governments) is on balance a good thing and that we have good reason to create them–does not appear for Locke to show that any particular limited state is legitimate, that any state (government) has the right to rule over any or all persons within its (claimed) domain (i.e., the right to occupy the position of authority).(18) This Lockean account utilizes one standard moral conception of state legitimacy,(19) and it is this conception of “legitimacy” that I will hereafter have in mind when I use that term. A state’s (or government’s) legitimacy is the complex moral right it possesses to be the exclusive imposer of binding duties on its subjects, to have its subjects comply with these duties, and to use coercion to enforce the duties. Accordingly, state legitimacy is the logical correlate of various obligations, including subjects’ political obligations.(20) A state’s “legitimacy right” is in part a right held specifically against the subjects bound by any state-imposed duties, arising from morally significant relations–in Locke’s case, consensual relations–between state and subject. It follows that “on balance” state legitimacy may be complete or partial, depending on whether such relations hold with all or only with some of those against whom the state enforces the duties it imposes (though the state is, of course, either fully legitimate or fully illegitimate with respect to each individual under its rule).
I do not here take up at any length questions about how state legitimacy is related to governmental legitimacy; I focus principally on questions about state legitimacy. Governments can presumably be illegitimate even where the states they govern are not. But state and governmental legitimacy seem not to be independent of one another, since an illegitimate state could not, I think, have a legitimate government. On the Lockean model this is easily explained. According to this model, states (“civil societies” or “commonwealths,” in Locke’s parlance) earn their legitimacy by virtue of the (unanimous) consent of their members, a consent that transfers to the collectivity those rights whose exercise by a central authority is necessary for a viable political society. Governments are legitimate only if they have been entrusted by the state (society) with the exercise of those same rights.(21) So while a legitimate state might have an illegitimate government (one that, say, acquired its power by force rather than by trust), an illegitimate state could never have a legitimate government since illegitimate states do not possess the rights, transferred to them by their subjects’ consents, that must be entrusted by a state to a government in order to legitimate that government. There are, of course, many other conceptions of state legitimacy, quite different from the strong Lockean conception just described. Some theorists have advocated weaker moral notions of legitimacy, according to which legitimacy is a mere liberty right or “justification right”(22)–a fight which correlates with no other parties’ obligations (e.g., with obligations to obey the law or to refrain from rival attempts to impose duties).
Such notions of legitimacy, as we shall see, sharply diminish the argumentative distance between accounts of state justification and accounts of state legitimacy. There is also a host of conceptions of state legitimacy–those used in ordinary political discourse and those advocated by various social scientists and political theorists–whose connections to either of the aforementioned moral conceptions of legitimacy are not immediately clear. For instance, we sometimes count states as legitimate if they achieve certain kinds of international recognition–if they are “accepted into the community of nations”–or if they remain stable over long periods of time, exercising effective or unchallenged control over a fixed territory. Or we might call a regime legitimate that was simply “lawful,” in the sense that it came to power and continues to govern according to the generally accepted rules of its state, or if it refrained from the persecution or deliberate impoverishment of its subjects (or of particular groups of subjects).(23) Or we might, with the majority of contemporary social scientists (and following Weber), call “legitimate” those regimes that are accepted or approved of by their subjects in certain distinctive ways. The satisfaction of any of these criteria might, of course, be said to confer on a regime the kind of moral legitimacy we have been discussing. But while concerns about a state’s stability or lawfulness or about institutional racism and persecution are clearly moral concerns, they are concerns bearing more obviously on what I have been calling the state’s justification than on its legitimacy. That a state is stable and lawful and refrains from persecution shows that it is good (or, at least, not bad) in certain ways, but it does not obviously show that the state has the kind of special moral relationship with any particular subjects that gives it a right to rule them. And international recognition, considered alone, plainly tracks the moral legitimacy of states at best irregularly. What, though, of the last, Weberian conception of legitimacy? Its popularity and its apparent similarity to the Lockean, consent-based conception of legitimacy warrants a slightly more extended consideration of this proposal. One proponent of the Weberian view, Charles Taylor, distinguishes between two senses of “legitimacy” as follows. On his preferred use, legitimacy “is meant to designate the beliefs and attitudes that members have toward the society they make up. The society has legitimacy when members so understand and value it that they are willing to assume the disciplines and burdens which membership entails. Legitimacy declines when this willingness flags or fails.”(24) Worries about the possibility of a contemporary “legitimation crisis” are often understood in this way–that is, in terms of the special difficulties faced by today’s industrial democracies in maintaining or generating the attitudes of allegiance, loyalty, or identification on which their “legitimacy” (in this first sense of the word) depends.(25) Taylor contrasts legitimacy in this first, “attitudinal” sense with what he calls “the seventeenth century use of the term not to describe people’s attitudes, but as a term of objective evaluation of regimes.”(26) The majority of the social scientists writing about legitimacy during the second half of this century have, like Taylor, identified legitimacy with members’ positive beliefs, attitudes, perceptions, or other “favorable orientations” toward their society or its regime. In this, as I have noted, they mostly take themselves to be following Weber, who famously attempted to analyze the legitimacy of power solely in terms of people’s belief in its legitimacy.(27) The most familiar criticism of this analysis of legitimacy points to its quite obvious circularity. But this is not a particularly difficult problem to repair, for Weber can be easily corrected to say more carefully (as he himself sometimes does) that the extent of a regime’s legitimacy is equivalent to the extent to which its subjects regard its directives as obligatory or authoritative, or regard the regime as lawful, exemplary, morally acceptable, or appropriate for the society. Legitimacy is then just understood as the “reservoir of loyalty on which leaders can draw,”(28) the subjects’ beliefs in the regime’s authority (or their feelings of allegiance, trust, or other attachment) that will typically produce compliance and support (or at least guilt feelings on occasions of noncompliance and nonsupport).(29) There are, however, more serious problems facing attitudinal accounts of legitimacy. One is that such accounts make judgments of legitimacy turn out to be about the wrong thing. Just as subjectivist accounts of moral judgment implausibly understand my judgment that an act is wrong, say, as a statement that I have negative feelings about that act–so that the “moral judgment” oddly turns out to be about me instead of about the act–so attitudinal accounts of political legitimacy make judgments of legitimacy too much about subjects and too little about their states. To call a state legitimate is surely to say something about it, about the rights it possesses or the scope of its authority. The attitudes of a state’s subjects can at best be part of what argues for its legitimacy, not that in which its legitimacy consists. It will not do, however, in response to this problem, to simply shift our focus onto the properties of the state that produce feelings of allegiance or support, so that legitimacy can be redefined as “the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society.”(30) For there is a second and much deeper problem with all accounts of legitimacy that thus centrally refer to subjects’ beliefs or attitudes: no plausible theory of state legitimacy could maintain that a state has the rights in which its legitimacy consists–rights to exclusively impose and coercively enforce binding duties on its subjects–simply in virtue of its subjects’ feelings of loyalty or its own capacities to generate such feelings. Surely by now the history of human oppression has taught us how often people come to feel obligated toward and believe in the rights of those who simply wield over them irresistible power, with no more moral authority over them than such power yields. Attitudinal accounts of state legitimacy appear to disregard such lessons. On such accounts states could create or enhance their own legitimacy by indoctrination or mind control; or states might be legitimated solely by virtue of the extraordinary stupidity, immorality, imprudence, or misperceptions of their subjects.
