Legitimacy is the foundation of such governmental power as is exercised both with a consciousness on the government’s part that it has a right to govern and with some recognition by the governed of that right.
The concept of usurpation as the opposite of legitimacy has accompanied the concept of legitimate government since early medieval times and has helped to clarify it. Usurpers, after seizing power, have often tried to strengthen their positions by giving their governments a legitimate form, and these attempts to clothe a usurping power with legitimacy, whether successful or not, have often revealed what the standards of legitimacy are for a given society or civilization.
Revolutions, unlike usurpation or coups d’etat, are not necessarily illegitimate. If they succeed they introduce a new principle of legitimacy that supersedes the legitimacy of the former regime. Under such circumstances recognition by the people will often be acquired only as the new government begins governing, and the process of becoming legitimate may include violence and terror. Foreign diplomatic recognition, while not essential, may help internal consolidation and therefore speed acceptance of the new pattern of legitimacy.
Governments, whether following traditional principles of legitimacy or establishing revolutionary ones, may lose their legitimacy by violating these principles. The desire for legitimacy is so deeply rooted in human communities that it is hard to discover any sort of historical government that did not either enjoy widespread authentic recognition of its existence or try to win such recognition. Because it is so universal a phenomenon, however, legitimacy is continuously endangered by the plurality of its patterns and sources. Rivals for power often automatically consider themselves legitimate and their opponents illegitimate. It is therefore difficult to talk about legitimacy in general terms; the different types must be discussed separately and specific examples given.
The numerous historical types of governmental legitimacy may be classified into two broad groups: numinous and civil.
The dominion of a god-king, of which ancient Egypt offers perhaps the most impressive example, is the theological doctrine according to which every pharaoh is himself (among other things) the god Horus, son of Osiris. The doctrine seems to go back to the very origin of the empire. The underlying myth of the birth of Horus, repeated, as it were, in every accession to the throne, provided the Egyptian kingship with a powerful guarantee of identity and continuity, the appearance of eternity. The pharaoh is, as Henri Frankfort (1948) put it, the epiphany of the god, as distinct from the Hellenistic or late Roman institution of the apotheosis granted to an individual emperor (for example, Alexander the Great). The pharaoh’s empire is god’s empire. Obedience is not merely a political necessity but a religious obligation. Obviously, legitimacy of this sort is a matter of might rather than of right and transcends all juridical explanation.
The godly origin of the king, more specifically the king being the son of god, is a concept close to that of the godliness of the king. The early pharaoh was, indeed, both god and son of god. The phenomenon of being the son of god does not belong to antiquity alone, however; it constitutes an essential element of the Christian faith.
Divine vocation as a principle of legitimate government (whether temporal or spiritual) must be distinguished from divine origin. Dominus noster Jesus Christus nos ad regnum vocavit (“Jesus Christ our Lord called us to the throne”), claimed Henry IV in his struggle against Pope Gregory VII, and this understanding of the foundation of his office, and of his personal ruler ship as well, strictly followed the traditional pattern of the medieval Roman emperors. Charlemagne had considered himself as a Deo coronatus (“crowned by God”), and he also seems to have been the first king to attribute to himself the famous formula of Dei gratia (“by the grace of God”). The Christian sacerdotium (“priesthood”) derived its legitimacy, and still does, from a source very similar to that of the regnum (“kingship”); according to official doctrine, the papal office is based on Christ’s designation of St. Peter, which continues to sanctify and legitimize the rule of every successive pope. For centuries both king and priest were considered the embodiment of the institution of the vicariat. The controversy between them was not about their respective legitimacy as such, but rather about the question whether priestly coronation and consecration were of constituent or merely affirmative significance for the regnum.
Inspiration is a numinous basis of legitimate government that has not produced lasting governmental institutions to the degree the three previous bases have. Moses is the foremost example of numinous inspiration, and his name is cited in Christian political philosophy whenever government by inspiration and revelation is discussed. The later prophets of ancient Israel could be considered as performing the function in government that has since come to be called the opposition. Time and again prophecy (in the sense of a mission based on direct revelation of a superior will) has inspired powerful political movements, often of a revolutionary kind. The Puritan revolution is a prominent example. Such superior will is not necessarily of a divine nature; Marx, for example, refers to history, and the Bolshevik party is guided by the will of history, of which the party claims to have a (quasi-theological) scientific knowledge.
Civil legitimacy exists when a system of government is based on agreement between equally autonomous constituents who have combined to cooperate toward some common good. The polis is one paradigm, especially if understood in accordance with Aristotle, who defines it as “an aggregate of citizens, or in other words, of men possessing access to office and therefore either actual or possible rulers” (Politics III, 130). Medieval confederacies, viewed not as aggregates of citizens but as aggregates of autonomous estates, form another type of commonwealth, deriving their legitimacy from agreement, or conjuratio. Switzerland is an example of this type of commonwealth, the confederacy having survived Switzerland’s transformation into a federal state. The institution of assemblies of estates (as for example, the French Etats Generaux, the old German Reichstag, or the unreformed English Parliament) is another example of an aggregate of autonomous entities, although it is of a very different structure and importance from the confederacy. Finally, every modern constitutional system, or more specifically, every system of representational government is founded either on a basic agreement to follow certain rules or at least on a justifiable assumption that a basic agreement to follow certain rules exists. These rules include the government’s obligation to protect civil rights and liberties and to pursue the common good.
Modern constitutional government makes one characteristic of civil legitimacy particularly clear: governmental offices are ordered by trust rather than exercised by dominion. This characteristic is expressed in the institution of periodic elections. In recent times popular elections have become so predominant a criterion of legitimacy that almost every nation feels obliged to pay lip service to the institution of elections, no matter what its system of government[ seeElections].
The word legitimus is classical Latin, while legitimitas seems to occur first in medieval texts, and, even then, only rarely. The Roman form means lawful, according to law.
While the word was used in all spheres of juridical relations, there are definite political overtones: Cicero uses legitimum imperium and potestas legitima in the sense of powers or magistrates constituted by law. His concept of the Justus et legitimum hostis (“enemy by right and by law”) is revealing; this enemy is to be distinguished from a robber or pirate and is legitimus because treaties are concluded with him, and concluding treaties constitutes a common ground of law (De offtciis in, 108). Occasionally Cicero’s usage seems to approach the meaning of hereditary succession: he wrote of dominions given by the tyrant Dionysius to his son, as quasi justam et legitimam potestatem (“his by right and by law”) (De natura deorum m, 84).
The medieval meaning is very different: legitimus is what conforms to ancient custom and to customary procedure. The word begins to be applied to persons: electi sunt quatuor legitimi viri communi assensu (“four duly constituted men were chosen by common consent”) (from a monastery charter, quoted in Du Cange’s Glossarium mediae et infimae latinitatis) which means qualified persons (boni homines) who can testify and guarantee some juridical action to which they give lawlike validity by their very presence, as custom requires. There is, indeed, something to be said for interpreting the medieval lex as indicating the particular customary procedure of an appropriate council or assembly composed of members of the family or the judiciary whose resolution or assent gives legitimacy to the respective decisions. Legitima auctoritas (“legal authority”) is thus sometimes opposed to regale preceptum (“;royal warrant”) just as legitima potestas (“legal power“) is opposed to tyrannica usurpatio (“dictatorial seizure of power”). In these cases the word legitimate points to the element of constituted rule and order, but included in the meaning is the assembly itself to which the rule refers. The 1338 Bavarian electoral law of Emperor Louis states that he who is elected by the electors ex sola electione censeatur . . . pro vero et legitimo imperatore (“by the sole process of election he shall be constituted . . . emperor in truth and in law”) instead of having to wait for papal consecration and other sanctifying ceremonies. Here the meaning of legitimus appears to come very close to its modern sense by adding the element of consent to the original veritas of the elected emperor. This idea of consent is precisely the element of meaning which remains in modern usage. Popular consent, although not the whole essence of legitimate government, is one of its most important criteria.
Because the word legitimacy has had so many LEGITIMACY different meanings, the kinds of problems considered relevant to a discussion of legitimacy have also varied. For example, Plato’s idea of justice bears on the problem of legitimacy. The same is true of Aristotle’s concept of the best constitution and his distinctions between good and bad forms of monarchy, aristocracy, and democracy (Politics in). In the course of the medieval revival of interest in Aristotle, his discussion of king and tyrant became particularly important. Later, Thomas Aquinas drew a much sharper line between king and tyrant than Aristotle had done and thus came close to a theory of legitimate and illegitimate government. (The king is pursuing the bonum commune, the tyrant his bonum proprium.)
Augustine declared that it was impossible for any community or government outside the City of God to be legitimate. Empires, he stated (De civitate Dei iv, 4), are big gangs of robbers. By turning Cicero’s definitions against him, he claimed to prove that the Roman Empire had never been a civitas (“state”) or res publica (“commonwealth”) in the true meaning of those terms. He traced the origin of temporal government back to either Cain—the murderer—or Abel —a citizen of God’s city. The two civitate s, he insisted, share only a mutual enmity. There is one respect in which the worldly civitas ses to be justified: its desire for peace is a bonum (“good”), which through its imperfection points to the perfect and eternal peace of the heavenly city. Since legitimacy thus applies exclusively to the City of God, kingdoms must demonstrate that their subjects are Christ’s people, just as kings must demonstrate that they are Christ’s vicars. This need, which existed from the time of Augustine on through the Middle Ages, may explain a good deal of medieval political theology and “christology” (Kantorowicz 1957). It may also explain the similarity of claims made by the Roman church and the Roman Empire: Extra civitatem Dei nulla legitimitas (“No laws are binding save those of the City of God”) [seeAugustine].
Marsilius rediscovered the concept of the polity as an autonomous entity not in need of spiritual approbation or interpretation. His Defensor pads (1324) represented a bold revolution in political thought. He denied the church any right of dominion, and he based regnum and imperium, like any principatus (“civil power”) on the constitution of the human society and the consent of the people, using Aristotle’s explanation of the polis as his main source. His astonishing book served the cause of Louis of Bavaria in his struggle with Pope John xxn but did so in a completely novel way: the foundation of imperial legitimacy was neither God’s institution and vocation nor the theory of translatio imperil (“imperial succession”) but, instead, constitutional election. Marsilius thereby cut the bond of theological legitimation that had united church and empire for over five hundred years [seeMarsilius of padua].
Locke, the great revolutionary political thinker of seventeenth-century England, was, like Marsilius, an Aristotelian and a developer of a novel theory of civil legitimacy. While Marsilius’ polemical attack was directed at papal domination and intervention, Locke’s analysis of the nature of government started with an attack on the divine right of kings. He used Robert Filmer’s Patriarcha as his text and demolished its arguments one by one in the first part of Two Treatises of Government (1690). Having destroyed the theory of the divine right of kings, he went on to build a totally different theory of government, according to which kingship was an office created by human agreement that served the common good of those agreeing to create it. Certainly, Locke’s celebrated compact, from which political society originates, is concluded in order to preserve the natural rights of the contracting parties, but what matters more with regard to the question of legitimacy is that monarchy, as indeed all political institutions, is based on agreement and on the consent of the people. Locke served the cause of the Whig party and its Glorious Revolution against the Stuarts as Marsilius had served the Imperial party against the pope [seeLocke].
De Maistre was a leading nineteenth-century advocate of legitimism and a prime opponent of Locke and his revolutionary views. He argued that Locke’s concept of law was actually the outcome of human agreement and not of natural right. Condemning Locke’s interpretation, he claimed that man cannot make a constitution because toute constitution est divine dans son prlnclpe. De Maistre conceived of the divine right of kings in a dynastic sense; it is the royal family rather than the royal office that has been chosen by God. He gave no explanation of the origin of a given dynasty’s power, other than through the paradoxical process of usurpation legitime. Royal families exist, he stated, and this fact is the most telling sign of their legitimacy. In this view hereditary succession is an essential element of legitimate rule. Des constitutions politiques ( 1809) served the cause of the Bourbon restoration and, more specifically, of Talleyrand’s introduction of legitimist doctrine into Europe. Although legitimism as a political force ended in France with the July revolution of 1830, legitimist ideas dominated nineteenth-century discussions of legitimacy.
Modern scholarly discussions of legitimacy can best be covered by reviewing three writers who dealt with the general notion of legitimacy: Max Weber, Carl Schmitt, and Guglielmo Ferrero. (From this selection of a sociologist, a lawyer, and a historian, it is apparent that the problem of legitimacy is of concern to many disciplines other than political science.)
Weber was the first to discover the universal applicability of the notion of legitimacy and therefore the first to use the term for classifying and comparing a great number of sociopolitical phenomena. The legitimists’ preoccupation with dynastic succession had narrowed the meaning of the word “legitimacy,” and this narrow usage had continued for almost a century. Weber’s use of legitimacy helped deprive it of this specific historical connotation. Weber’s typology of modes and sources of legitimacy forms part of his sociology of dominion (Herrschaftssoziologie) and is to be found in that monumental fragment Wirtschaft und Gesellschaft (1922). Legitimate dominion is not distinguished from illegitimate dominion. Instead, within the general framework of a value-free description of social patterns, the plurality of legitimacies becomes apparent. Weber seemed to assume that in legitimate dominion of any type, legitimacy is based on belief and elicits obedience. However, he did not discuss the general sense of legitimacy and instead concentrated on the pure types of legitimacy: the traditional, the charismatic, and the rational. His three types together cover the whole range of such phenomena. (Although these terms have provided the impetus for much empirical research, whether they provide the best classification of the empirical material they have helped unearth is still questionable.) By traditional legitimacy Weber understood mainly patriarchal and feudal forms of order and dominion. Here the objection may be made that the sanction of tradition plays its part in almost every kind of legitimacy, from constitutional systems to charismatic ones. Weber’s notion of charisma is so closely associated with the uniqueness of prophets, heroes, and other leaders that it is difficult to understand the striking durability of certain historical systems based on the charisma either of kinship or of office. Weber himself had some doubts about the rationality of the third type: rational legitimacy. However, he never described the precise nature of the belief in legality which he placed at the bottom of legal and bureaucratic dominion. There is almost no place left in his system for civil government in its proper sense. Democratic legitimacy occurs only as a reversion of charismatic leadership and is another concept that cannot be handled in his system. Whether laws are granted or agreed upon did not basically affect Weber’s defiant and somewhat bitter “realism” [seeWeber, max].
The problem of democratic legitimacy was, for obvious reasons, urgently discussed in the late years of the Weimar Republic. Schmitt’s contribution to the discussion was his largely polemical treatise, Legalitdt und Legitimitdt (1932). The distinction between legality and legitimacy goes back to the French legitimist writers and is most sharply made in M. de Ronald’s Essai analytique sur les Ms naturelles de I’ordre social (1800). Although Schmitt did not define the terms of his title, he seemed to say that the state with parliamentary legislation lacks legitimacy altogether. “Fifty-one percent of parliamentary votes make for law and legality,” he stated somewhat sarcastically, without ever asking why the remaining 49 per cent accept the majority decision, although this acceptance is, after all, the basic prerequisite of any constitutional system. Schmitt considered the plebiscitary elements of the Weimar constitution to be legitimizing factors, and he therefore pleaded that these factors be made the basis of an amended constitution. Schmitt’s critics pointed out that his caesarist version of democracy was just as formalistic and neutral as to values as the parliamentary majority rule which he attacked (Kirchheimer ’ Leites 1932/1933). Schmitt’s treatise both mirrored the lack of basic consent that characterized the Weimar Republic and was responsible for increasing that lack of consent [seeSchmitt].
Neither Weber’s pattern of rationality and legality nor Schmitt’s notion about the plebiscitary legitimation of democratic leadership answered the basic question: What is the core of democratic legitimacy? One significant solution was offered by Ferrero, who described democratic legitimacy as resting on two “pillars”: majority and minority, or government and opposition. His formula broke the spell of the Rousseauean fiction of a general will (volonte generate) and avoids the dangerous drawbacks of considering majority rule as the essence of democracy. Hopefully this illuminating concept will be tested by comparative studies.
Apart from the particular problems already mentioned, there are many important questions about legitimacy that deserve further study. Among them are the partly logical question of the universality of the concept and the partly ethical question of how to resolve conflicts of legitimacies both in theory and in practice.
Balon, Joseph 1959-1960 Jus medii aevi. 4 vols. Namur (France): Godenne. → See especially Part 2, “Lex jurisdictio.”
Bonald, Louis Gabriel Ambroise de (1800) 1817 Essai analytique sur les lois naturelles de I’ordre social: Ou, du pouvoir, du ministre et du sujet dans la societe. 2ded. Paris: Le Clere.
Brie, Siegfried 1866 Die Legitimation einer usurpierten Staatsgewalt. Heidelberg: Emmerling.
Brunner, Otto 1962 Bemerkungen zu den Begriffen “Herrschaft” und “Legitimitat.” Pages 116–133 in Festschrift fur Hans Sedlmayr. Munich: Beck.
Carlyle, Robert W.; and Carlyle, A. J. 1903-1936 A History of Mediaeval Political Theory in the West. 6 vols. New York: Barnes ’ Noble; London: Black-wood.
Ferrero, Guglielmo 1942 The Principles of Power: The Great Political Crises of History. New York: Putnam.
Figgis, John N. (1896) 1922 The Divine Right of Kings. 2d ed. Cambridge Univ. Press. → First published as The Theory of the Divine Right of Kings. A paperback edition was published in 1965 by Harper.
Frankfort, Henri 1948 Kingship and the Gods: A Study of Ancient Near Eastern Religion as the Integration of Society and Nature. Univ. of Chicago Press.
Friedrich, Carl J. 1961 Political Leadership and the Problem of Charismatic Power. Journal of Politics 23: 3-24.
Gierke, Otto von (1881)1954 Das deutsche Genossenschaftsrecht. Volume 3: Die Staats- und Korporationslehren des Altertums und des Mittelalters und ihre Aufnahme in Deutschland. Graz (Austria): Akademische Druck- und Verlagsanstalt.
Heckel, Johannes 1953 Lex charitatis: Eine juristische Untersuchung iiber das Recht in der Theologie Martin Luthers. Abhandlungen der Bayerischen Akademie der Wissenschaften, Phil-hist. Klasse, New Series, vol. 36. Munich: The Academy.
Kantorowicz, Ernst H. 1957 The King’s Two Bodies: A Study in Mediaeval Political Theology. Princeton Univ. Press.
Kern, Fritz (1914) 1939 Kingship and Law in the Middle Ages. Oxford: Blackwell. → First published as Gottesgnadentum und Widerstandsrecht im friiheren Mittelalter.
Kirchheimer, O.; and Leites, N. 1932/1933 Bemerkungen zu Carl Schmitts Legalitdt und Legitimitdt. Archiv fitr Sozialwissenschaft und Sozialpolitik 68: 457-487.
Locke, John (1690) 1960 Two Treatises of Government. Cambridge Univ. Press.
Mcllwain, Charles H. (1940)1947 Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y.: Cornell Univ. Press. → A paperback edition was published in 1958.
Maistre, Joseph de (1809) 1959 Des constitutions politiques et des autres institutions humaines. Edited by Robert Triomphe. Univ. of Strasbourg, Faculte des Lettres, Publications, Series 2, Fasc. 21. Paris: Belles Lettres.
Schmitt, Carl 1932 Legalität und Legitimität. Munich and Leipzig: Duncker & Humblot.
Schramm, Percy E. 1929 Kaiser, Rom und Renovatio: Studien und Texte zur Geschichte des romischen Erneuerungsgedankens vom Ende des Karolingischen Reiches bis zum Investiturstreit. 2 vols. Leipzig: Teubner.
Sternberger, Dolf 1962 Grund und Abgrund der Macht: Kritik der Rechtmdssigkeit heutiger Regierungen. Frankfurt am Main: Insel-Verlag.
Taeger, Fritz 1957-1960 Charisma: Studien zur Geschichte des antiken Herrscherkults. 2 vols. Stuttgart: Kohlhammer.
Weber, Max (1922) 1956 Wirtschaft und Gesellschaft 4th ed., 2 vols. Tubingen: Mohr. → Part 1 has been translated as The Theory of Social and Economic Organization and published by the Free Press in 1957; Chapter 7 has been translated as Max Weber on Law in Economy and Society and published by Harvard University Press in 1954.
Winckelmann, Johannes 1952 Legitimitdt und Legalitdt in Max Webers Herrschaftssoziologie. Tubingen: Mohr.
Wolzendorff, Kurt (1916) 1961 Staatsrecht und Naturrecht in der Lehre vom Widerstandsrecht des Volkes gegen rechtswidrige Ausilbung der Staatsgewalt.Aalen: Scientia.
Max Weber, whose work is central to understanding the complexity of the relationship between power and legitimacy, distinguished ‘factual power’ and the ‘authoritarian power of command’ as two ideal types. The former refers to the subordination exacted on the basis of interests, where control over goods and services in the market involves the actor submitting freely to that power. As for the latter, in due course naked factual power needs to justify itself, and through the process of legitimation evokes the sense of duty to obey, regardless of personal motives and interests.
Legitimacy may be claimed by those with power on the basis of either traditional, charismatic, or rational-legal grounds. Likewise, legitimacy—and therefore authority—may be accorded to a distribution of power on the basis of tradition, on affectual or emotional grounds usually associated with revelation (charisma), on the basis of value-rational faith or belief in an absolute, or finally on grounds of belief in the legality of the order. The content of the justification for continued domination—its legitimation—constitutes the basis for the differences in such empirical structures of domination as bureaucracies.
Weber distinguishes the legitimacy of an order from its ‘validity’. An order becomes more valid as the probability increases that action will be guided by the belief in the existence of a legitimate order. An order is more or less valid, rather than more or less legitimate.
In Weber's writings, it is possible to identify factual power as being concomitant with the market and therefore with class, legitimate power with a status order and therefore with status groups. All orders are a mixture of the two, although it is clear that commercial classes, property classes, and social classes are associated with a diachronic movement towards the eventual legitimation of class power buttressed by the status order. The emergence of action guided by custom, habit, convention, legal enactment, and finally religious encoding indicates the stages in the legitimating process of the power of the rulers, and leads eventually to the stable distribution of power. However, when ‘the myth of positive privilege’ is no longer accepted unquestionably by the masses and the ‘class situation’ becomes visible as the determinant of an individual's fate, then legitimacy rooted in the status order and its accompanying ideological legitimation can be said to have broken down, and with it that status order itself. Weber does not provide specific accounts of what the factors are which precipitate the legitimation crisis, although the section on the conditions for the formation of communal class action in his famous essay on ‘Class, Status and Party’ provides some insight into such a scenario.
It is possible to see the ideology of citizenship as a modern example of a legitimating principle, where the incorporation through the extension of formal civil, political, and social rights provides a status order for the market-generated inequalities of late capitalism. However, the pressure to provide substantial content to formal rights (actual equality before the law, actual right to property, equal access to the freedom of speech, and the means to participate through social welfare provision within such a society) may all undermine the legitimating role of citizenship.