The same principle holds for some minor criminal offenses. Examples are libel, trespass or house and family theft. This passive role of the state in the prosecution of a large number of offenses would be unintelligible if the respective breaches of the law would be interpreted as a violation of a duty owed to the state.
The third problem with the claim right thesis is that political systems do more than to issue commands and demand obedience for them. The conceptualization of legitimacy put forward by the adherents of the traditional view can therefore only cover a part of the functions of political systems. In addition to claim rights political institutions produce a variety of privileges, powers and immunities to themselves and third parties for a classic discussion see Hart Political institutions grant, for example, the privilege to freedom of expression, they confer competent persons the legal power to enter binding contracts and recognize in their constitutional law a variety of immunities against the abolishment of basic rights.
These important features of political systems cannot be satisfactorily explained by a fixation on claim rights. The claim right thesis appears therefore not only formally and normatively implausible but also functionally inadequate. Judged by the criteria introduced in section one, it therefore fails at least on two accounts: Firstly, it is normative implausible, since it is committed to the rather counterintuitive view that every obligation that arises from the actions of political institutions is also automatically owed to that institution.
Secondly, it is functionally inadequate, because it is unable to provide for the normative infrastructure that political institutions need in order to fulfill such vital functions as regulating basic liberties such as the freedom of movement, expression or assembly or enabling their citizens to alter their normative positions to each other by, for example, entering into contracts.
Legitimacy as a privilege to use corecion? A second conceptual possibility consists in understanding the normative core of legitimacy as a privilege cf.
Smith , Ladenson , Wellman , Buchanan A well-known approach in this vein was developed by Robert Ladenson. Ladenson argues that the right to rule should not be construed as power or claim right, but merely as a legal privilege to use coercion. The bearer of a privilege merely does not wrong the disadvantaged party if she performs respectively tries to perform the action specified in the privilege right.
Now, according to Ladenson, political institutions should have such a privilege to use coercion, because, given their abundance of power, they are in a unique position to secure the inner and outer peace Ladenson In this interpretation of political legitimacy, the rulers may indeed use force in order to ensure social peace, but the ruled are under no obligation towards the political system to comply with its demands.
According to this perspective, legal provisions are not to be understood as mandatory norms, but merely as justified threats, which involve no claims of moral validity whatsoever. Ladenson puts this position as follows: "The claim that governmental authority constitutes a moral justification for coercion by itself implies nothing about either the subject's duties of allegiance to the state or of compliance with the law.
This is because the right to rule, being a justification-right rather than a claim-right, entails no correlative duties" Ladenson From this proposal, two problems arise. The first problem is of conceptual nature. As Joseph Raz has noted, Ladenson's interpretation of the normative status of political institutions as having a right to use coercion without even claiming some sort of authority to create binding norms, has nothing to do with our usual usage of the concept of legitimacy.
He argues further that political orders necessarily understand their laws as being more than mere threats, that courts understand themselves as not simply handing out arbitrary punishments, but as establishing the guilt of defendants according to binding regulations and that the executive branch does not merely claim a right to use coercion but a monopoly on the justified use of force cf.
Raz Therefore, according to Raz, Ladenson's interpretation of the concept of legitimacy has not only nothing to do with our usual employment of the term, but is also "an analysis of a concept that does not have much use in our world" Raz criticism of Ladenson in this section amounts to two objections: Firstly, that Ladenson's conceptualization of legitimacy has nothing to do with the self-image of political institutions, and secondly, that the normative status that political institutions claim for themselves is indeed the only interpretation of legitimacy that is functionally adequate.
Since Ladenson denies this second objection — he holds, after all, that the right to exercise coercion suffices to guarantee the societal peace — the first objection is for him unproblematic as well. Thus, the success of his approach depends on whether a mere privilege to use coercion does in fact suffice to establish and guarantee social order in a normative acceptable manner.
However, this does not seem to be the case: The problem for Ladenson's position is this: There is only a very small class of cases for which it seems normatively plausible that the use of coercion is justified, while assuming at the same time that the addressees of the coercion have not violated any duties. My point here is not that the breach of a duty is a necessary condition for justified coercion.
These exceptions include situations in which the lack of duty arises from the moral immaturity of those affected. Instances of self- defense or defense of others against innocent attackers — the severely insane, small children or animals for example — are paradigmatic cases.
In these cases, the attackers do not violate any duty because they are unable to bear moral responsibility for their actions. At the same time, or so it is often argued, the danger they present justifies certain forms of coercion that are necessary to protect the life and limb of the attacked see for example Thomson In a second, more controversial case, the use of force against innocents is justified by consequentialist considerations.
In these scenarios people become victims of coercion because it is causally necessary or at least unavoidable, in order to avoid a greater evil. Innocent victims of justified wars are here in many ways the most dramatic and alarming example. Apart from these cases, 1 the violation of a duty is a necessary condition for the justified use of coercion and 2 the permission to use coercion is at least associated with a claim right to non-interference.
In other words the main problem of Ladenson's theory of legitimacy is that he conceptualizes the relation between political institutions and their members more like the relation between man and beast as between rational and morally competent persons.
Since the scope of action of political systems exceeds by far the special cases discussed above, Ladenson's coercion based approach offers no adequate basis for a theory of political legitimacy. His proposal to understand legitimacy as justified coercion is therefore both counterintuitive and normatively implausible.
In reference to coercion based theories of legitimacy such as Ladenson's, Ronald Dworkin therefore draws the conclusion that legitimate political institutions must always posses some degree of political authority, here understood as the moral power to create binding duties.
He writes: "But though obligation is not a sufficient condition for coercion, it is close to a necessary one. A state may have good grounds in some special circumstances for coercing those who have no duty to obey.
But no general policy of upholding the law with steel could be justified if the law were not, in general, a source of genuine obligations" Dworkin Adherents of a coercion based theory of legitimacy could now object to this argument that it simply does not follow from the strong connection between the violation of a duty and the permission to use coercion that legitimate political institutions need to possess a normative power to create binding obligations. All that this argument shows is rather that coercion may generally only be used as a response to a norm violation.
However, such norms do not have to originate from political institutions, but may also exist independently of them. Ladenson's proposal could therefore be modified to the effect that legitimacy consists in a permission to use coercion in order to enforce morally justified norms that exist independently of political institutions. The bearers of such a privilege would then indeed have no right to create binding norms, but would merely have a claim right to non interference regarding the enforcement of recognized moral norms such as basic human rights.
The thesis that such a conceptualization of legitimacy without political authority is at least possible is put forward by Allen Buchanan , In this view, it is simply unnecessary to argue for further normative powers and claim rights of political institutions, since there are usually enough prudential and moral reasons to observe just laws. In contrast, Buchanan claims that an actor has a moral reason for obeying a certain law, if the content of the norm corresponds with his moral duties.
Buchanan's emphasis on the content of the norm as the reason for compliance is extremely important for the correct interpretation of his position. This content- dependence of its normative force distinguishes this type of reason for compliance from cases of normative authority in which the fact that a norm originates from a legitimate authority suffices to generate binding obligations.
Political institutions possessing normative authority can therefore create moral reasons for compliance that are independent of the content of a specific norm Raz ; For an overview of the different reasons for compliance see the table below see also Schmelzle Reasons for Compliance Content-Dependence Content-Dependent Content-Independent Type of Reason Prudential Substantial self-interest Sanctions coercion, incentives Normative Substantial moral convictions Authority The differentiation between content-dependent and content-independent reasons for compliance helps us to see why authority and the ability to create credible sanctions are essential prerequisites for the stability of every diverse and complex social order.
Both cases should be extremely rare. Apart from the marginal case of pure coordination games, like whether to drive on the right or left side of the road, substantial self-interest is a very weak motive for stable compliance. Either there is conflict about the content of a rule, for example in the case of impure coordination games i. Analogously, near absolute moral convergence is also limited to a small class of policies, and even then it is not sufficient to guarantee universal compliance.
While substantial moral convictions are surely important for compliance with several prescriptions of the criminal law falling under the category of malum in se, they are hardly relevant for cases of malum prohibitum, for example zoning regulations. And even in cases where we have unequivocal moral reasons for compliance, coercive enforcement is still necessary to deter the small percentage of sociopaths who are not receptive to kinds of considerations.
Therefore, either authority or sanctions are necessary for complex governance under conditions of widespread conflict of interests and moral disagreement. Jeremy Waldron dubs these conditions the "circumstances of politics" Waldron Since, as we have seen in the discussion of Ladenson's position, rule by force alone is normatively unacceptable, it seems as if the ability to create content-independent moral reasons for action is an extremely important tool for archiving social coordination in diverse societies.
In light of these distinctions, it becomes clear where the problem of Buchanan's proposal lies: Only in the case of a strong convergence of moral convictions would every addressee of the law indeed have a moral reason for compliance which originates from the content of the law. Given the backdrop of ethical pluralism, the underdetermination of moral principles and the resulting possibility of reasonable disagreement about moral issues Rawls 58 , this condition is often not met.
Under these conditions of reasonable pluralism, the addressees of the law would therefore no longer be obligated to comply with the demands of the political order if they do not share its specific interpretation of the relevant moral principles and duties. Buchanan is thus faced with a dilemma: He must either claim that there are unambiguous moral standards for at least the majority of conceivable human interactions, for which the correct interpretation is undisputed in almost every case.
This would not be very plausible. Or he has to limit the reach of his concept of legitimacy radically. The resulting conceptualization of the right to rule would then be structurally limited to the protection of the most unambiguous i. The problem with this understanding is not that it would not be logically possible, but that it reduces the role of legitimate political institutions to the provision of emergency help in the case of obvious rights violations.
Such a conceptualization of the right to rule would be rather disappointing, since — according to the prevailing moral theories — every actor has a right to engage in the defense of others in cases of emergency anyway.
This account is reminiscent of Spiderman and his superhero buddies, but not of political institutions. Whether it is appropriate to still speak of genuine governance in such cases may in any case be doubted. This way out of the dilemma is therefore neither functionally adequate, nor would the normative status of the political institutions differ from that of their members.
Thus, the criterion of specificity would be violated as well. Legitimacy as a power The previous two sections have shown that legitimacy — the right to rule — can neither be convincingly interpreted as a Hohfeldian privilege nor as a claim right.
While legitimate political institutions surely have a variety of valid privileges and claims, these normative advantages are the consequence of their legitimacy and not the essence of the right to rule cf. Applbaum As I will argue in this section, this is so because privileges and claims are first-order rights, which refer exclusively to physical actions and cannot be altered by their bearers.
In themselves, they are absolutely static. Neither can they be used to create new norms, nor do they provide for the normative resources to adjudicate authoritatively in cases of disagreement. These normative acts, which we associate with the legislative and judicial functions of political systems, have to rely on second-order rights, which enable the creation and alteration of normative relations cf. As we have seen in the section on Hohfeld's legal theory, only power rights provide for the normative infrastructure of these functions.
Therefore, political legitimacy, the right to rule, should be conceptualized as a Hohfeldian power. Before I discuss this proposal in detail, I would like to recapitulate briefly why privileges and claim rights should no longer be considered as the basis of a comprehensive right to rule. From the shortcomings of these two approaches the argument for the understanding of legitimacy as a power right then arises ex negativo. In the case of the proposal to understand legitimacy as permission for the use of coercion, we have seen that the legitimate use of force does generally depend upon whether the addressees of coercive acts have violated a relevant duty.
Although there are many clear cases of moral duties independently of political authority — think of duties not to kill, harm or enslave others —, even these basic moral obligations are underdetermined and can be interpreted and applied differently by reasonable people in particular cases. Waldron ; Stilz If the right to rule consisted solely in a unilateral permission to enforce natural duties, it would be limited to the protection of basic human rights and other undisputed moral goods in unambiguous cases of emergency.
It would be restricted to unambiguous cases, since even for the most widely accepted moral norms, such as the prohibition against homicide, hard cases such as abortion, euthanasia and killing by omission pose complicated moral problems that require a specification by positive law. And it would be restricted to cases of emergency aid, because the apportioning of blame and punishment for a specific act of killing without positive regulations would arbitrary in lieu of fine grained positive regulations: German Penal Code alone knows, for example, four different forms of intentional killing of a human and a number of variants of negligent homicide, which are all sanctioned by very different penalties.
Without such sophisticated legal instruments adequate sanctioning of homicide would be hardly possible. If the normative status of political institutions consisted solely in privileges, then they could neither create binding norms nor adjudicate on norm violations or punish wrongdoers. All that would be left for political institutions according to this approach were the immediate protection against obvious violations of moral norms, which is a fraction of the tasks that we usually associate with the concept of governance.
The interpretation of legitimacy as a legal claim could not convince either, because it cannot be understood independently of a power to create and alter claims. But even if one could come up with a mysterious justification for this particular tax rate, this rate could not be changed without a corresponding power right to do so. Without power rights, political orders would be absolutely static.
Both proposals fail, because the normative status that they provide does not fit to the functions of political institutions. This problem can be resolved if we understand legitimacy as a Hohfeldian power. As we have seen in the section on Hohfeld's legal theory, powers are second-order rights, which make the the alteration of normative relations possible.
They enable political institutions to set normatively binding norms and to adjudicate disputes authoritatively. If we now realistically assume that moral reasons will not motivate all actors consistently to compliant behavior, the impartial and reliable enforcement of existing norms by the executive branch becomes also necessary for reasons of fairness. However, this permission to enforce valid norms coercively is usually a mere consequence of the power to set mandatory standards in the first place.
The legislative, judicial and executive branches of government are therefore based directly or indirectly as in the case of the executive branch on Hohfeldian powers. If we do not want to restrict the function of political systems to the enforcement of a small class of unambiguous natural moral norms such as the prohibitions against murder or rape , we must conceptualize political legitimacy — the right to rule —as power to set and apply binding norms.
That is why questions of legitimacy refer primarily to relations of authority that are characterized by the mode of command and obedience, and not to mere power relations Weber , This interpretation of legitimacy as a Hohfeldian power meets two of the three initially developed criteria for a "well-ordered" definition of the concept of legitimacy: It is functionally adequate, since it enables political institutions to solve a variety of problems of social coordination and cooperation even under conditions of reasonable pluralism by creating content-independent reasons for action.
In addition, it also meets the criterion of specificity, since the normative status of political systems is markedly different from that of their members. Initially it has to remain open whether such an understanding of the concept is also normatively plausible: Why should political orders have the right to alter the normative relations of their members?
What characteristics might give them this normative status? A convincing answer to these questions would require a substantive theory of the justification of political authority which was not the primary subject of this paper.
At this point I can only hint at two possible justificatory strategies: The Hohfeldian power to set and apply mandatory norms can be either justified on instrumental or procedural grounds. Instrumental justifications relate directly to the expected quality and effectiveness of the produced norms.
In contrast, procedural justifications make the legitimacy of a political order depend on the fairness of the processes that generate norms and decisions.
But they lose their persuasiveness to the degree that the standards of quality and effectiveness of governance become themselves reasonably disputed. In cases where the aims and purposes of political institutions are not predetermined, but the subject of disagreement and deliberation and where is this not the case? Conclusion It was the aim of this paper to argue for the plausibility of the idea that political legitimacy consists primarily in the normative power of a political order to alter the rights and obligations of its members.
Political authority, the right to create binding duties, would thus be a necessary part of political legitimacy. If the argument is successful, this has two consequences for the theoretical discussion of legitimacy: First, the subject matter of judgments legitimacy or illegitimacy would narrow down on relations of authority which claim to be normatively binding. This does not mean that other forms of power relations are morally irrelevant, but only that there are other questions to be asked, namely if the distribution of power is fair and its use justified.
Secondly, any definition of legitimacy determines the justificatory burden that substantive theories of political authority have to shoulder. If the arguments presented here are correct, the issues of authority and legitimacy of political systems can not be so easily separated, as authors such as Ladenson, Wellman or Buchanan assume. Whoever wants to justify the legitimacy of the state, a governance constellation or an occupation authority, must therefore explain the reasons why a political actor should have the right to alter the rights and obligations of the affected subjects.
Whether, and if so how, such an argument could succeed, was not the subject of this paper but see Schmelzle Its purpose was rather to illustrate that this is precisely the question that must be asked and answered by theories of political legitimacy.
Beetham, David The Legitimation of Power, Houndmills: Macmillan. Belnap, Nuel Buchanan, Allen Justice, Legitimacy, and Self-Determination. Christiano, Thomas The Constitution of Equality. Copp, David Dworkin, Ronald Law's Empire, Oxford: Hart.
Enoch, David Green, Leslie Hart, H. Hinsch, Wilfried Berlin: De Gruyter. Hohfeld, Wesley Newcomb Fundamental Legal Conceptions. Ladenson, Robert Lyons, David Pettit, Philip; Smith, Michael Oxford: Oxford University Press.
Rawls, John A Theory of Justice. Raz, Joseph Schmelzle, Cord Searle, John Simmons, John Smith, M. Stilz, Anna Liberal Loyalty. Waldron, Jeremy Weber, Max Wirtschaft und Gesellschaft. Wellman, Christopher Heath Wenar, Leif Wright, Georg Henrik von The Varieties of Goodness, London: Routledge. A political institution sets the rules in which an orderly society obeys and ultimately decides and administers the laws for those that do not obey.
The political system consists of both politics and government and involves the law, economy, culture, and other social concepts. The most popular political systems that we know of around the world can be reduced to a few simple core concepts.
Many additional types of political systems are similar in idea or root, but most tend to surround concepts of:. In , Gabriel Abraham Almond and James Smoot Coleman gathered three core functions of a political system, which include:. In modern-day society in the United States, for example, the main function of the two core political parties is seen as a way to represent interest groups and constituents and to create policies while minimizing choices.
Overall, the idea is to make legislative processes easier for people to understand and engage with. Every government seeks stability, and without institutions, a democratic political system simply cannot work. Systems need rules to be able to select political actors in the nomination process.
The leaders must have fundamental skills about how the political institutions work and there must be rules about how authoritative decisions are to be made. The institutions constrain political actors by punishing deviations from institutionally-prescribed behaviors and rewarding appropriate behavior.
Institutions can resolve collection action dilemmas—for example, all governments have a collective interest in reducing carbon emissions, but for individual actors, making a choice for the greater good makes no good sense from an economic standpoint. So, it must be up to the federal government to establish enforceable sanctions. But the main purpose of a political institution is to create and maintain stability. That purpose is made viable by what American political scientist George Tsebelis calls "veto players.
Agenda setters are those veto players who can say "take it or leave it," but they must make proposals to the other veto players that will be acceptable to them. Tsebelis, George. Princeton University Press, Actively scan device characteristics for identification.
Use precise geolocation data. Select personalised content. Create a personalised content profile. Measure ad performance. Select basic ads. Create a personalised ads profile. Select personalised ads. Apply market research to generate audience insights. Measure content performance. Develop and improve products. List of Partners vendors. Share Flipboard Email. Alistair Boddy-Evans is a teacher and African history scholar with more than 25 years of experience.
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