Larry Solum (now at the University of Illinois at Urbana-Champaign) posted a new entry on legitimacy to his excellent legal theory lexicon. After distinguishing between normative and factual theories of legitimacy, Solum lists four contemporary arguments:
- Legitimacy as derived from democracy
- Legitimacy as legal authority
- Legitimacy as reliability
- Rawls’ concept of legitimacy.
In discussing the reliability concept of procedural legitimacy, Solum correctly observes that
[t]here is a difference between the correctness or justice of a decision, on the one hand, and its legitimacy; on the other. Indeed, this seems to be a crucial feature of legitimacy. We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy.
The Alexy triangle provides an intuitive way of illustrating that claim, which makes it useful not only for a conceptual definition of law, but also (and not surprisingly) as a tool to classify theories of legitimacy. Both correctness and justice relate to the non-positivist permissible content element, whereas the democratic process and the legal authority are primarily related to proper promulgation of a law or a legal decision. Rawls’ theory of legitimacy addresses all three prongs, proper promulgation, social efficacy, and permissible content, with an emphasis on the latter. In my view, the process aspect of legitimacy is fundamental, because legitimacy is to such a large extent a question of “more or less.” Legal processes, by blending both normative and factual elements, generate incremental legitimacy by approximating normative ideals of justice, while at the same time, they factually undermine and delegitimize dissent.
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