Beyond Procedural Legitimation: Legality and Its ‘Infictions’
| Author | Jiří PřbáAň |
| DOI | http://doi.org/10.1111/j.1467-6478.1997.tb00001.x |
| Date | 01 September 1997 |
| Published date | 01 September 1997 |
JOURNAL
OF
LAW
AND
SOCIETY
VOLUME
24,
NUMBER
3,
SEPTEMBER
1997
ISSN:
0263-323X,
pp.
33149
Beyond Procedural Legitimation: Legality and Its ‘Infictions’
JIRf
PRIBAN*
INTRODUCTION
The legitimacy
of
a legal and political order
is
a challenging modem legal,
philosophical, and sociological problem. It has many practical aspects
and consequences for social, political, and legal activity. Its importance
increases especially during times of complex socio-political and legal
changes or reconstruction.I
The relation between legality and legitimacy was an important topic for
legal philosophy and sociology
in
the first half of the twentieth century. For
example, Max Weber classified legal political domination as a domination
legitimated by general legal rules, rational administration, and bureaucratic
procedures.2 Another German scholar, Carl Schmitt, worked
on
the principle
of
formal or technical legality and its power to legitimate political authority.g
Schmitt reduced conditions
of
legitimacy to the legal exercise of political
power and, according to him, legality is the justification
of
the state? The
topic
of
the legitimacy
of
law also appears, though only as a marginal prob-
lem,
in
the pure theory of law developed by Hans Kelsen. Hans Kelsen, and
most legal positivists, define the legitimacy of a legal rule in two ways:
formally, as a fact that a rule has been issued by the legally empowered body
or,
substantively, legitimacy
is
identified with the efficacy of a legal rule
within the system of positive law and society itself.5 Joseph Raz’s book,
The
Authority of Law,
in
which the author attempted to harmonize a formal
legalist approach with substantive political and moral principles, does not
break this positivistic framework
in
spite of the fact that Raz has greater
respect for the interdependence of law and political or moral principles.6
Analytical jurisprudence, even after the fundamental innovations brought
about by
H.L.A.
Hart
or,
more recently, by Joseph Raz, still builds on
*
Associate Professor of Legal Philosophy and Sociology, Law Faculty,
Charles University, nam. Curieovych
7,
116
40
Praha
1.
The Czech Republic;
Research Fellow, Curdiff Law
School,
P.O.
Box
427,
Museum Avenue,
Cardiff CFI
IXD,
Wales
I
wish to thank Peter Fitzpatrick, Phil Thomas, James
Young,
Roger Cotterrell, David Nelken,
and John Tweedy
for
their comments, help, and support.
33
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Publishers
Ltd
1997.
108
Cowley
Road,
Oxford
OX4
IJF,
UK
and
350
Main
Slrecl,
Mslden. MA
02148,
USA
Bentham’s or Austin’s ‘magic discovery’ of the positivity of law and law’s
reliance on the sovereign political authority.
The sociological theory of Max Weber, unlike Schmitt’s or Kelsen’s legal
philosophy, respects the irreducible tension between the general legislation
of modern state or general legal procedures on the one hand and the political
consensus and order of commonly shared values or moral principles on the
other hand. The problem of legitimacy and legitimation of political domi-
nation is, according to Weber, always a matter of the
Verulltuglichung
(disen-
chantment) of charisma and any law (not simply
a
modern system of general
legal rules) plays a crucial role in this process. Law enables
us
to calculate
rationally with the originally irrational elements of every political domina-
tion and enables
us
to establish the necessary relations of social solidarity
in any political ~rganization.~ This, according to Weber, is the legitimating
function of law. Modern legal domination is legitimate because it operates
as an impersonal anonymous structure of legal procedures and general legal
prescriptions, but also because there is a general
Gluube
(belief) that the
content of those rules is right. According to Weber, a social order can be
ascribed legitimate validity in various ways, legality being one of them, which
means that it has to be recognized as legitimate by social actors.* Members
of political associations (such as states) have to believe that actions or orders
imposed upon them have their specific legitima~y.~ This belief and confor-
mity arising from a broader social context are the conditions of the legit-
imacy of modern political domination to the same extent as its legality.
Weber intentionally reflects
a
tension between the system and belief. He is
aware
of
the fact that legitimacy based only on the idea of consensus and
shared values is insufficient but he does not identify legitimacy simply with
the coercive force of modern bureaucratic administration and the impersonal
norms of modern law. Obedience, grounded in
a
belief in legitimacy
of
an
order, is irreducible to coercion.10 This complex attitude distinguishes Weber
substantially from the analytical jurisprudence and legalist philosophy of
law. It identifies him as an original thinker and one of the most inspirational
writers
in
the field of sociological theory of law in the twentieth century.
COMMUNICATIVE REASON, DISCOURSE ETHICS,
AND INTIMACY
Recent theoretical discussions about the conditions of the legitimacy of law
and political domination are heavily influenced and framed by the dispute
between Jiirgen Habermas’s concept
of
legitimation and the autopoietic
systems theory of Niklas Luhmann. The debate dates back to the late 1960s
and early 1970s when in 1973 Habermas published
Legititnutionsprobleme
im
Sputkuyitulisrnus”
-
a critical response to Luhmann’s 1969 book,
Legitimation durch Verjiuhren.12
Habermas rejects Luhmann’s systematic
procedural grounds of legitimation and the legalist approach of Carl
332
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Blackwell
Publishers
Ltd
1997
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