For a long time, debates about legitimacy were overshadowed by debates about justice, or were assimilated to discussions about authority and obedience. I think that legitimacy is an interesting topic in its own right, and that many of the existing approaches to it are mistaken.
In particular, I believe that a clear instrumentalist account of legitimacy in the literature is missing. Such a view bases legitimacy on justice, rather than consent, democracy, or public justification. My D.Phil. thesis is an attempt to cast some light on the contours of such a view, and the resources available to its defenders.
In chapter 1, I define legitimacy as the permission to rule. I deny that political institutions generally enjoy authority, which is the moral power to directly impose duties on others. I then describe how legitimate political institutions without authority are possible in principle.
In the second chapter, I outline a major problem for rationalism. If individuals have strong, moral rights, then it seems that political institutions cannot legitimately operate without their subjects’ consent. I describe the key assumptions in this argument, and discuss a series of unconvincing proposals in the literature to escape it. In chapter 3, I argue that we can solve the problem if we look at theories of the moral justification of rights. There are two major such theories, the interest theory and the status theory. I outline the interest theory, and argue that it allows for non-consensual but legitimate political institutions. In chapter 4, I describe a Kantian claim about the nature of rights, according to which our rights are fully realised only if there are political institutions. If we accept this thought, then non-consensual political institutions can be legitimate on the status theory as well.
In chapter 5, I outline what it means to promote — rather than respect — justice, and argue that the promotion of justice enjoys primacy over other values. At first sight, rationalism appears to have very radical implications, given that it asks us to base legitimacy on justice. In chapter 6, I argue that this impression is mistaken. We should often pursue justice indirectly, for example, through methods which focus on legal validity or democratic procedure rather than justice.
Exciting new work on the nature of authority by David Enoch and others changes how we ought to think about political authority. I suspect that, once we understand authority correctly, philosophical anarchism will turn out to be a much more appealing view.
A task for any theory of legitimacy is to outline the relationship between individual rights and collective aims. That is, to what degree can individuals veto or override the pursuit
Another competing theory of legitimacy focusses on democracy as the primary element in legitimising power. I believe, however, that most theorists overvalue democracy, in the abstract but especially in the concrete. In particular, the nature of real-world democracies should make us highly sceptical about the intrinsic value of democracy.
Justificatory liberalism claims that public justification to every citizen is central to legitimacy. I think this view is mistaken for a variety of reasons.
My argument proceeds in three stages. First, I give an intuitive motivation for justificatory liberalism in the introduction (ch. 1). Then, I sketch the most plausible version of justificatory liberalism, and distinguish different forms of it (ch. 2). I analyse the central notion of “public justification”, which I interpret through the idea that all citizens could reasonably accept a law. What citizens could reasonably accept is a mix of moral, epistemic and counterfactual considerations, and is constrained by internalism. I also argue that justificatory liberalism is analytically independent from claims about justificatory neutrality and duties of civility.
In the second stage (chs. 3 & 4), I argue that justificatory liberalism falls prey to the Basic Problem. There is reasonable disagreement about virtually all laws, policies, and institutional arrangements. But if we accept justificatory liberalism, then few if any non-trivial laws will be legitimate. This contradicts a liberal commitment to anti-anarchism, according to which many such laws are legitimate. I then discuss a number of solutions to the Basic Problem that justificatory liberals have proposed (ch. 4): actual agreements, procedural meta-agreement, the special nature of the political, moralised agreement, and comparative agreement. While these solution attempts are sophisticated, they all fail.
I discuss the implications of this result in the third stage (ch. 5). In reply to the Basic Problem trilemma, we must ask which liberal commitment we ought to give up – justificatory liberalism, reasonable disagreement, or anti-anarchism. I argue on principled grounds that the latter two are central (moral) principles of liberal thought, while the former is not. In particular, equal respect – the core notion in all liberal views – does not require justificatory liberalism. Thus, we should give up justificatory liberalism.
This argument leaves open many interesting questions that surround justificatory liberalism. I outline some questions for further research in my concluding chapter (ch. 6).
In previous work, I tried to develop a broadly Kantian account of supererogation.