Power and Legitimacy at Law & Society Blog

Power and Legitimacy

Published by Brian Berkey August 15th, 2006 in Philosophy, Law and Society

Matt Wood’s thoughts on power raise a number of important issues. Ben suggests that questions about power can be separated into 1) questions about what individuals in fact have the power to do, and 2) questions about whether the exercise of certain powers that individuals have is legitimate. Questions in the first category are purely empirical; as Ben says, “power, like any ability, is demonstrated through its exercise.” In this sense, then, the statement “President Bush did not have the power to authorize the NSA wiretapping program” is false, due to the simple fact that he did authorize the program, and citizens were wiretapped. Questions in the second category, on the other hand, are normative, though I think the precise nature of such questions requires some spelling out, and perhaps some further distinctions.

Consider again the statement “President Bush did not have the power to authorize the NSA wiretapping program.” There are multiple things that one might plausibly mean by such a statement. Most obvious among them is that Bush did not have the legal authority to authorize the program. Someone who intends the statement in this way believes that the program itself violates some previously existing (and valid) law or laws, or that it violates certain fundamental and legally guaranteed rights, and is therefore unconstitutional. But Matt raises an interesting point about claims of this sort. In our society it is generally accepted that the courts are the arbiter of legal authority, and because of this it might seem that whether or not the program is legal (and even whether it was legal at the time of implementation) is determined only after the courts have ruled on the issue. If the statement is made prior to any legal ruling regarding the program, then, it might be taken as a mere opinion about what decision the courts should make, given the speaker’s interpretation of the law. Whether or not Bush actually had the power, in this normative sense, to authorize the program, depends on how the courts rule, and (as Matt points out) on whether the public acquiesces to the ruling (of course the public almost always does acquiesce, for a number of reasons, including the fact that the courts tend to follow public opinion, at least on highly publicized issues). In fact, Matt seems to suggest that there is not much more to the legitimacy of an exercize of power than that it is accepted as legitimate by others:

“Legitimacy” exists insofar as individual B ratifies A’s action, either by reference to personal values or institutional structures. Legitimacy exists at the level of individual belief (B’s here), but nothing prevents a belief in legitimacy from being a function of group approval, as in the case of constitutional amendment.

So, since the general population accepts that it is the courts’ role to interpret the laws and the Constitution, then their doing so is legitimate, despite the circularity worries that Matt highlights. And, assuming the courts come down in favor of Bush, he had the power to authorize the NSA program all along, despite the legal ambiguities that existed prior to the ruling.

But might someone also make the statement “Bush did not have the power to authorize the NSA program” even after the courts have ruled the program legal? Perhaps the statement would be made in a slightly different way at this point; in fact, it might be put in terms of legitimacy, as in “authorizing the program was an illegitimate use of power.” In the legal sense discussed above, this is false. The courts have ruled, and the public has not risen up against the ruling; therefore authorizing the program was legitimate in the legal sense. So it may seem that the answer to Matt’s question “can one dissident voice validly stand back from the mass of consensus and say, “I know you all believe he had the power, but he *really* didn’t,” or the converse, “I know you all believe he didn’t have the power, but he *really* did?,” is no, both in the empirical and legal senses.

But is this the whole story? Like Ben, I am inclined to think not. It might seem that once the courts have ruled in Bush’s favor, it is simply false, in every possible sense, to say that he did not really have the power to authorize the program. But there are at least two objections to this conclusion, the second, I think, deeper than the first. The first is simply that the courts may, at some point in the future, reverse their decision. If and when that happens, even if it is decades into the future, it might seem that Bush in fact never actually had the (legitimate) power to authorize the program, not even during the period between the decision in his favor and the later reversal (think about what we might say about the legitimacy of the Fugitive Slave Laws in the period immediately following the Dred Scott decision, now that we are able to look back on that decision long after it has become conventional wisdom that it was disgraceful).

The second objection, which I think is the more interesting one, is that because the courts tend to rule in accordance with prevailing public opinion, they sometimes misinterpret the law, particularly in cases about which public passions are enflamed (consider, for example, cases in which religious displays on public property have been ruled legally acceptable). This view depends upon the premise that there are determinate answers to at least some legal questions prior to actual court rulings on those questions, which is something that Matt seems inclined to deny. Still, at least in certain cases, it might seem clear enough that a decision has no plausible basis in the law, or in the Constitution. And in these cases it might seem reasonable to call a policy illegitimate even after a court ruling has determined the policy to be legal.

Final note: A third objection might involve the claim that “legitimate” powers must meet some standard of moral, in addition to (or perhaps rather than) legal, legitimacy. The Dred Scott decision may have been entirely legally sound (given the Constitution and existing law), as well as generally accepted by the public, but we might still think that those who executed the Fugitive Slave Laws were, in some sense, exercizing illegitimate power. This, however, seems to me a slightly different sort of issue, and I bring it up merely to highlight the difficulty of nailing down precisely what is meant by talk of “legitimacy”.

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6 Responses to “Power and Legitimacy”

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1 Hanno Kaiser Aug 17th, 2006 at 11:34 am

Legitimacy is one these concept-facts where factual and normative aspects are so tightly interwoven, that the concept seems to lose its coherence and much of its meaning once we separate the normative from the factual. Don’t get me wrong, I am not saying that it can’t be done. It can, as Brian’s post demonstrates. At least two uses of legitimate exercise of power are readily discernible.

(1) X’s exercise of power is legitimate if natural conditions Y obtain, where Y could be the stated or revealed assent of the people to X’s rule, X’s royal heritage, X having followed an electoral procedure, a court having declared X the winner of an election, etc.

(2) X’s exercise of power is legitimate if such exercise conforms with rule Z, where Z could be a legal, moral, or religious rule.

My point is that the lines between (1) and (2) are not always clearly drawn. For example, a legal requirement of state election law that the winner be determined by the majority of the ballots cast is a legal rule that embodies and implies significant normative content, such as basic voter equality, a commitment to the democratic process, etc. Consequenly, if X invokes adherence to the rule as a basis for his or her legitimate exercise of power, X makes both a factual claim and a normative claim. The issue usually comes to a head where the procedural rules conferring legitimacy have been followed but the actions of the duly elected government violate substantives rules of legal or moral behavior. (Procedural legitimacy and substantive lack of legitimacy). Equally common are situations in which the procedural rules have been followed and the actions as such are unobjectionable, but certain normative implications of the procedural rules have been flaunted. For example: A white candidate for mayor is chosen in an all-white community.

These are well-known issues with the concept of legitimacy, but somehow the framework seems unsatisfactory. Legitimacy has a fractal quality to it. It permeates a society, it exists at the level of the individual (psychologically, and normatively) and, in a different form, at a more aggregated level. For lack of a better term, legitimacy might be an emergent property in a complex, adaptive social system. What, then, are the low-level properties, presumably at the individual level, that give rise to legitimacy once we increase the number of the elements and their interactions (following the adage that “more is different.”) Here are some suggestions:

* Access to local information
* Power to act locally
* Access to others, physically or virtually
* Free speech
* Property rights
* Some critical population density, whether physical or virtual

I wonder if under these or other similarly defined low-level conditions, the emergence of legitimacy can be simulated and observed. In that view, legitimacy would be a property, albeit an emergent one, that certain complex social systems have and others lack.
2 Ben Samuel Nelson Aug 17th, 2006 at 8:15 pm

Hanno, from what I’ve learned, the use of the term “legitimation”/”legitimacy” (at least for Weber etc) is meant to be descriptive. In that case, we’d have to look at it only in terms of (1). If my lexical intuition is right about the use of “legitimation”, we might need to use a different kind of language when discussing (2).

Or perhaps not: it depends on the answer to questions like, “Whose religion? Whose morality?”. If the moral/religious system is also a system of mores, then it collapses into (1); and if not, then it doesn’t seem to be a question of legitimacy, but rather of morality. (An anarchist once suggested to me that there was a division between “legitimation” and “legitimacy” which fell along these lines, and perhaps they were right; I find the whole lexical matter confusing myself, and would welcome some clarity with regards to the conventions.)

I think the fractal paradigm you suggest is quite interesting. It seems to suggest that the way we run our government, our economy, our community, or our society is a function of the way we run our lives. For those areas in the macro-sphere which are aggregated and unintentional (what Habermas would call “The System”) this seems entirely intuitive. But this doesn’t feel entirely right to me at the level of intentional organizational action (what he’d call “The Lifeworld”). I may be an anarchist at large and an authoritarian at home, owing to my recognition of the complexities at the macro-scale that aren’t there at the micro-scale.

I would find it amusing/instructive if your suggestions about emergent properties on that list could be visualized, ala http://llk.media.mit.edu/projects/emergence/ or http://kevan.org/proce55ing/zombies/ . Too bad I don’t know Java…
3 Matt Wood Aug 22nd, 2006 at 3:12 pm

A thought experiment: You wake up one morning and find that, sometime overnight, you’ve come to believe that the Constitution of the United States was a strange bit of colonial hubris and would rather swear allegiance to the British crown. You walk over to your neighbor’s house and, over a cup of coffee, convince him of the same. Each of you continues going door-to-door, talking to neighbors, those neighbors then talking to their neighbors, until within a few days your entire neighborhood, state, and eventually an overwhelming majority of the nation are persuaded. Government buildings sit empty, and the Constitution of the United States becomes nothing more than a curiosity, words on a page with no more totemic power to compel action and cooperation between former Americans than the South African Constitution. A few holdouts try to hold elections, invoking the language of the old Constitution, and even call on the military and former President to quell “the secession”, but no one in those positions is answering their phones. The disbelievers are overwhelming in number, and merely chuckle. The backward few who still believe are eventually converted or killed, or go into hiding. Great Britain ceremoniously re-annexes these lands, the Union Jack flies over car dealerships and fast food restaurants everywhere, and former Americans are happily voting in Parliamentary elections and swearing allegiance to their King and Queen.

—-
The lesson is fairly straightforward: No governmental legitimacy exists apart from that granted in the minds of the governed. The source of legitimacy does not lie in a document or a procedure, but in the skulls of the governed, in their belief that said document or procedure compels obediance and cooperation. The governed may accept this belief as a “simple fact” of the objective world (probably as a result of their socialization) and so believe they have no choice, particularly if no real civil discord exists. But the thought experiment above belies this notion as “fact”. Belief constrains *perceived* choice, not true choice. Take the perspective of one of those neighbors, approached with the argument that Americans should resubmit to British rule. Suddenly, the consensual nature of existing governmental structures is illuminated, and the question becomes normative: *Should* I continue to follow the Constitution, or *should* I opt for the British crown? (Ask yourself this question.) New calculations are possible, such as pragmatics (for example, a fear that too few people have converted, and individuals following the old structures may punish harshly for treason, or conversely that too many people have converted to belief in British rule, and therefore to cling to the old belief is too dangerous). Alternatively, nothing prevents the object of persuasion from saying, “Hey, you can’t do that! The United States really exists, and it’ll come down hard on you!” But “the State” is a mental construct (a reification, an objectification) of real-life patterns of human cooperation, organized by the shared belief in the State’s existence and legitimacy (and shared beliefs in the validity and meaning of its organizing documents). And “the State” dissolves as soon as the individuals of that community cease to believe in the necessity and desirability of those beliefs.

Consider the Dred Scott decision. Both Chief Justice Taney, who authored the opinion, and William Loyd Garrison, a zealous abolitionist, understood the Consitution to countenance slavery (and, in that case, the return of escaped slaves to their masters). No conflict existed at the intra-normal level. However, Garrison renounced an obligation of loyalty to such a Constitution. He grounded this rejection in Christian ethics and theology. Inter-normal conflict had arisen. The key point is that each citizen agrees to continue as a citizen, distributing legitimacy according to a Constitutional scheme, only insofar as they believe in the appropriateness of that norm-system as guide for their actions and choices (particularly as a basis for cooperative action). Of course, this belief may be deliberate or it may be the unconscious byproduct of the socialization process (the latter seems much more common). But at all times, we agree to play the game, and herein lies the “social contract”, and its derivative phenomenon “power”. We invest others with “power” when we concede their legitimacy. We strip them of it when we disbelieve (and therefore refuse to cooperate). The powerful only “have power” when we give it to them by our consent. They have it by virtue of what certain documents say *only* insofar as those documents are accepted as legitimate themselves by the governed. Because we typically do not question the legitimacy of those documents and simply accept it as objective fact, the powerful appear to be empowered by virture of the documents themselves and their language.

Each generation is told of its forebears’ norm-schemes (such as religion, philosophy, government documents, etc.), and these provide the memetic reservoir from which individuals respond to novel situations by preserving, modifying, or replacing governmental norm-schemes. This process is an emergent property of the social system and its networks of communication and meaning-making, always operating at the level of the individual mind.
4 Ben Samuel Nelson Aug 23rd, 2006 at 11:00 am

Matt, the use of words like “contract” and “consent” are misleading in the sense that they underplay the admixture of coercion, evidenced by the lone voice who shouts, “The United States really exists, and it’ll come down hard on you!”. I am convinced that emergence must be discussed in other terms or else present a misleading view of things.

My view on the big picture may or may not be slightly at odds with yours. Perhaps I’ve misunderstood your emphases. But the way I understand the matter, there are different kinds of power, which can be organized according to their sources of influence. Some kinds resemble your model, others don’t.

Power can be distinguished from mere persuasion in that the former has to do with the suppression of resistence, while the latter has to do with cooperation in spite of resistence.

Power has two kinds: inert and social. Inert power is power over objects. A man who can lift 200 pounds has more inert power than one who can only lift a feather. Social power is power over people.

Social power can be divided into at least two kinds: naked and organizational power. Naked power involves simple coercion. Organizational power involves acquiescence. Acquiescence is composed of trust and/or apathy to the rule of the powerful. These are cases where any resistence is quelled either by immediate group members or by the individuals themselves. (Dependency may be a third kind of power.)

In your case study, there has been an implicit transformation of the state’s power from organizational power to mere persuasion. This transformation is
a) the diminuation of organizational power, and accretion of persuasive power (simultaniously when the neighbors place the conversations at the level of reason and dismiss considerations at the level of practicality); and
b) the diminuation of persuasive power (when the neighbors are persuaded to pledge allegiance to the crown).

What’s important and relevant here is that the dismissal of practical considerations (i.e., “What if they arrest me?”) is what makes the distinction between power and legitimacy seem fuzzy. So long as we presume that people are rational — but *not* short-sightedly self-interested — beings, power flows right from persuasion and legitimacy. But people really are, in fact, self-interested, and usually are short-sightedly self-interested. That’s why the distinction between power and legitimacy is stronger than we might first expect.

[These are thoughts which I’ve come up with over the summer after a reading of Bertrand Russell’s “Power: A New Social Analysis”.]

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