The Function of Political Institutions and the Concept

of Legitimacy

Cord Schmelzle
Freie Universität Berlin

This is paper is work in progress. Please do not cite or circulate without permission.
Feedback and comments are welcome at: cord.schmelzle@fu-berlin.de

Introduction 1

In the first chapter of his Theory of Justice John Rawls distinguishes between two levels of

abstraction in the analysis of practical concepts: The more general dimension of a concept on

the one hand and the more specific level of various conceptions on the other (Rawls 1971: 5).

According to this distinction, conceptual statements are concerned with the general role of a

certain notion in a given language. The concept of justice is understood by Rawls, for

example, as "the proper balance between competing claims" (Rawls 1971: 9). Such an abstract

definition can in turn encompass a variety of concrete conceptions which specify the content

of the concept and identify the criteria for its correct application. Different conceptions of

justice, for instance, differ in respect to which claims they consider as justified, under which

conditions claims compete with each other and what constitutes a proper balance between

these claims.

The present paper is conceptual in nature. It aims at developing a concept of political

legitimacy which is both general and informative. Given the fuzzy usage of the term in both

ordinary language and academic discourse, this is not a trivial task. In everyday parlance, for

example, the adjective “legitimate“ is often simply used as a synonym for terms such as

permissible or acceptable, lawful or justified. We speak of legitimate claims and actions,

interests and inferences, husbands and heirs. From this usage in ordinary language we need

to distinguish the concept of political legitimacy as it is used in the social sciences and

political philosophy (cf. Hinsch 2008; Applbaum 2010). Here judgments of legitimacy or

illegitimacy refer to the normative status of a given political order and/or the norms that

emanate from it. One common source of confusion in this context is the different application

1 I would like to thank Jakob Huber for extremely helpful comments on this version of the paper.

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of the concept in political science and sociology on the one hand, and normative political

theory and philosophy on the other hand. Whereas political scientists and sociologists hold

that legitimacy refers to the beliefs and attitudes of the affected actors regarding the normative

status of a rule, government or political system (Weber’s famous "Legitimitätsglaube", see

Weber 1964: 158), political theorists and philosophers understand legitimacy as the actual

normative status of the political order. These differences in usage lead many scholars to

assert that there are in fact not one, but two distinct concepts of legitimacy: one empirical (or

descriptive), concerned with the attitudes and beliefs of citizens towards their government,

the other normative (or prescriptive), concerned with the actual moral properties of a

political order (cf. Beetham 1991; Simmons 1999).

I believe, however, that this two-concept thesis is deeply misguided. Instead of speaking

of two different concepts of legitimacy, it is more accurate to say that there is an empirical

and a normative perspective on the same concept. This is more apt, since the normative beliefs

of citizens and the moral judgments of philosophers refer to the same phenomenon; that is,

the term legitimacy has the same meaning in both perspectives. Furthermore, the meaning is

normative in both cases, since even purely empirical accounts of legitimacy necessarily refer

to a normative concept. Consider this pair of statements: "Sixty percent of the German

population believe that the European Union is legitimate," and "only democracies are

legitimate." The semantic content of the term legitimate remains unaffected whether I

observe the empirical attitude of the German population towards the EU or make a

normative judgment about democracies. In both cases, the term legitimacy refers to the

normative status of the political order in question.

But to what exactly does this normative status amount to? Even though the vast majority

of scholars agree that legitimacy can be dubbed as the "right to rule" (Raz 1986: 23; Copp

1999: 3; Simmons 1999: 746) it is heavily disputed which rights, obligations and liabilities

exactly the status of legitimacy confers on the rulers and the ruled. From a political point of

view, this vagueness of the concept is problematic because judgments of legitimacy or

illegitimacy often contain a practical dimension: they serve as justifications for the use of

coercion, the moral bindingness of norms, or various forms of resistance - from civil

disobedience to armed revolution. The judgment of the legitimacy or illegitimacy of a

political order thus not only says something abstract about its moral quality, but is also

directly relevant for allowing, prohibiting or demanding certain actions of the rulers and the

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ruled alike. This practical role of legitimacy judgments demonstrates that legitimacy is a

deontic concept. Deontic (or normative) theory is here understood as a branch of practical

philosophy concerned with establishing what actors are allowed to, ought to, or must not do

(Wright 1963; Raz 1975: 11). Statements about rights and duties, permissions and

prohibitions, are deontic, for example. One important feature of deontic concepts is that they

are directly relevant to actions. This sets them apart from evaluative moral concepts such as

good and bad, better and worse. In what follows, I will argue that legitimacy is a deontic

concept in the sense that it shapes the rights and duties of the actors involved. But what

normative benefits and liabilities includes the concept of legitimacy precisely? To what

normative advantages are legitimate political orders entitled and which obligations do arise

from them for their members? Answering these questions is the goal of this paper.

In the recent debate in political theory and philosophy, these issues are highly

controversial. According to three prominent positions, the term legitimacy refers either to a

privilege to use coercion to enforce morally justifiable rules, to a claim right to command

which corresponds with a duty of obedience towards the political order or to the normative

power of political institutions to create, modify or abolish binding norms. In dealing with

these different understandings, I will defend the following two claims: First, that the right to

create binding norms is the normative core of the concept of legitimacy. Other normative

advantages of legitimate political orders, such as the permission to use coercion or the

citizens' obligation to obey the law are usually merely consequences of this normative

power: coercion is typically only justified when it responds to a violation of a valid norm and

obedience to the law is required only if the corresponding norm is valid. Second, it follows

from this definition of legitimacy as a normative power that relations of authority, and not

power relations in a broader sense, form the central subject of questions of legitimacy.

The paper is organized in six sections: First, I start discussing in the following section the

methodological approach I use to evaluate different interpretations of the concept of

legitimacy. Here I will argue that the correct normative status of political institutions can be

derived from the societal functions that these institutions are supposed to perform. This

novel approach allows me to develop three criteria by which the merits of the different

conceptualizations of legitimacy will be assessed in the remainder of this paper (1). A second

step is it then to clarify conceptually what exactly is the normative status awarded to

legitimate political orders. The starting point for my reflections here is the legal theory of

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Wesley Newcomb Hohfeld (1919) (2). From Hohfeld's typology of normative relationships

three possible interpretations of political legitimacy arise: Legitimacy is understood either as

a claim right to command which corresponds with a duty of obedience (3), as a privilege for

the use of coercion (4), or as a normative power to alter the rights and obligations of third

parties (5). The discussion of these three conceptual proposals will show that only the

understanding of legitimacy as a power right can grasp the central role of political

institutions adequately, that is to solve coordination problems and to determine common

goals under conditions of reasonable pluralism. Finally, the conclusion some implications of

this conceptual proposal for substantive theory of political legitimacy are discussed (6).

1. Methodological Approach

Before I begin in the next section with the analysis of the concept of legitimacy, I would first

like to discuss briefly in this section the criteria by which the success or failure of the various

conceptual proposals will be evaluated. In what follows, it is not my intention to depict in

lexicographical manner the various uses of the concept of legitimacy, but rather to explain

why a particular understanding of the term is superior to competing definitions. This rather

normatively ambitious type of conceptual analysis is described by Nuel Belnap as an

"explication". Under this he understands "a good thing to mean by the word" (1993: 117).

Such a project requires clear criteria by which it can be argued why a certain interpretation of

a concept is superior to another. Three candidates will be discussed in the next couple of

paragraphs.

The first criterion is that of functional adequacy. This criterion is based on the premise that

political systems are social institutions which exist in order to fulfill specific functions. For

the realization of these functions institutions and their representatives usually require a

certain set of rights which derives from the purpose of the institution itself (see Searle 1995;

2010). A football referee, for example, has the function to monitor compliance with the rules

of the game. In order to fulfill this function, she requires a specific set of normative

advantages which are derived from her role as a referee (for the conceptual connection

between roles and rights see Wenar 2013). These rights include, inter alia, the permission to

access the playing field during a match and the authority to arbitrate over violations of the

rules of the game. If the referee actually has these rights, her normative status is functionally

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adequate: she then has exactly the set of rights that she needs in order to do her job. If now

someone would define the role of the referee as only including the permission to access the

playing field during a game, this interpretation would be functionally inadequate. The

normative status of the referee would no longer correspond with the purpose of the

institution, i. e. to monitor compliance with the rules of the game. If we now want to apply

this criterion on political institutions, of course the question arises, what the corresponding

purposes of political institutions are. As we shall see this question is highly controversial

between the various conceptual theories of political legitimacy we will discuss in the

following sections. But from this it does not follow that the criterion of functional adequacy

cannot be put to use for the analysis of the concept of political legitimacy. Rather, we will see

that the different conceptual theories are implicitly committed to different theories of the

purpose of political institutions. If one of these theories is shown to be implausible, we can

discard the corresponding conceptual theory as well.

The second criterion that I will use is that of normative plausibility. This criterion is

concerned with the prima facie normative attractiveness of the relation between political

intuitions and their members as envisaged by the different conceptual theories of legitimacy.

Should a version of this relationship, that is a certain distribution of normative advantages

and disadvantages between a political order and its members, be logically inconsistent or

morally unacceptable, this counts against the conceptual proposal in question.

Finally, the third criterion is that of specificity. According to this criterion, a concept should

appoint a special normative status that differs from the status of other institutions or

individuals. If this is not the case, the characterization of the normative status need not be

inappropriate per se, but the term would simply be unnecessary. If it turns out that the

normative status of political institutions does not differ from that of their citizens, the

concept of political legitimacy would be superfluous.

According to the three criteria developed in this section a "well-ordered" theory of the

concept of legitimacy is therefore a conjunction of a (1) reasonable assumption about the

purpose of political institutions and (2) the specific (3) normative status that an actor needs in

order to be able to fulfill this purpose. A theory can therefore be rejected as misconstrued if

either (i) the function that an institution has according to a theory of legitimacy is

implausible or normatively unacceptable, or if the normative status that a theory ascribes to

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legitimate institutions is (ii) not specific for them (iii) or does not enable them to fulfill their

functions. With these criteria in mind we can now get started with the real work.

2. Legitimacy as the right to rule

As already mentioned in the introduction, in political theory and philosophy legitimacy is

often described as the right to rule. This formulation does a good job in giving a rough idea

of the meaning of the concept, but unfortunately not much more. It replaces an unclear

concept – political legitimacy – with another term – the right to rule – which may intuitively

appear more familiar, but is still ambiguous and requires interpretation. Especially the

concept of a right remains in at least three respects ambiguous: rights can describe different

normative relations between actors, they can secure different functions and they can refer to

different types of goods. An example to illustrate: Anne's right to eat or not to eat her apple

(1) differs markedly from her right (2) that her friend Ben must not eat her apple. In the first

case Anne has a right against Ben (or anyone else) that she may perform or refrain from an

act at will, in the second case Anne has a right against Ben, that Ben must refrain from an act.

In the first case, the right has the function to establish a domain of freedom of action for

Anne whereas in the second case the right serves as a protection from external interferences.

What both rights have in common, however, is that they refer to a physical act – the eating of

an apple. But what about Anne's right (3), to allow Ben to eat her apple? Or with her right (4)

that Ben cannot unilaterally declare that the much sought-after apple is now his? Here the

term right does not seem to relate to physical actions, but rather to the creation, modification

or abolition of normative relations. These examples demonstrate that without a more

sophisticated vocabulary the talk of rights is vague at best. If we want to define the meaning

of political legitimacy by analyzing what type of right the right to rule is, we need a more

precise terminology that can discriminate between the cases 1 through 4.

Such a differentiated typology of normative relations is provided by Hohfeld's theory of

rights (1919). In his seminal essay Some Fundamental Legal Conceptions as Applied in Judicial

Reasoning Hohfeld distinguishes four types of normative relations, in each of which a

normative advantage of one party correlates with a certain normative disadvantage of the

second party with respect to the content of the right. To have a certain normative advantage

against one party thus contains logically that the other party has the correlative normative

disadvantage with respect to the same action or good. The normative advantages in Hohfeld

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system are: 1. claims, 2. privileges, 3. powers and 4. immunities. They correlate with four

normative disadvantages: 1. duties, 2. no-claims, 3. liabilities and 4. disabilities.

The correlation between normative advantages and disadvantages is most easily

understood for the case of claims and duties. Anne has a claim against Ben that he does not

eat her apple if and only if Ben has a duty towards her not to eat the apple. The general

structure of claim rights can be represented as follows:

Claim-Right: A has a claim against B, that B φ, iff B has a duty to A to φ.

Here, A and B are actors and φ an action (act or omission). From this structure follows that

claims always refer to actions of the duty-bearer which can be formulated as requirements or

prohibitions. If A has a claim against B, this implies that for B a certain action is mandatory

or forbidden. From the perspective of the right-holder, the function of claim-rights is to

regulate the conduct of third parties towards me. They guarantee protection against

interference, the supply of goods or the provision of services. From the perspective of the

right-holder, however, claims are passive by nature (Lyons 1970; Wenar 2005: 233). Since the

content of a claim-right is by definition always an action of the duty-bearer, a pure claim-

right does not entitle to any action. Anne's claim against Ben that he does not eat her apple

says by itself nothing about whether Anne is allowed to eat her apple or not. In order to be

allowed to actually eat it she needs a second type of normative advantage, the privilege:

Privilege: A has a privilege against B to φ, iff B has no claim against A that A does not φ.

In contrast to claims privileges are active. They do not regulate the behavior of others, but

enable right-holders to certain actions. To have a privilege to perform a certain action is

tantamount to not being under a duty to refrain from that action. In this fundamental sense,

privileges establish a domain of freedom of action. This general characterization of the

function of privileges can be further refined by distinguishing two specific subtypes of

privileges. Privileges can either create a general domain of freedom, such as the fundamental

rights of freedom of movement, expression and assembly, or they may grant exemptions

from otherwise binding obligations (Wenar 2005: 226). Examples of such exemptions would

be the right of police officers to carry fire arms, the right of pharmacists to own dangerous

chemicals or cases of self-defense or defense of others, which allow, under certain

circumstances, substantial interferences with the rights of the attacker which are usually

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prohibited. Rights of exemption are often associated with offices (policemen), special

qualifications (pharmacists) or arise in response to previous violations of norms (the cases of

self-defense and defense of others).

All physical acts between two parties can be regulated by means of claims and privileges.

However, a system of norms that consisted only of claims and privileges (and duties and no-

claims) would be absolutely static (cf. Hart 1961: 92-93). In Hohfeld's system, this deficit is

fixed through the introduction of a second pair of rights, i. e. powers and immunities, which

regulate the creation, modification and abolition of normative relations. Drawing on the

work of H. L. A. Hart this type of normative advantages could be described as second-order

rights (1961: 79-99). Powers are analogous to privileges in that they are active rights which

establish a domain of freedom of action for the rights-holder. More concretely, they enable

the subject of the right to create, alter or abolish normative relations. Immunities, in contrast,

are passive rights, which make the alteration of a normative relation impossible. In general

terms, powers and immunities can be defined as follows:

Power: A has a power against B to alter a normative relation N, iff B has a liability towards A
in reference to N.

Immunity: A has an immunity against B that B alters a normative relation N, iff B has a
disability towards A to alter N

The function of powers is to give their bearers authority (Wenar 2005: 230-233). Powers

authorize the right-bearer to alter the rights (i. e. claims, privileges, powers and immunities),

of the liable party. Because of the far reaching consequences of powers, they are often carried

out through ritualized actions, formal speech acts or institutions. Among the most important

are laws, contracts, promises, orders, gifts, wills, elections, admissions and appointments.

Finally, the function of immunities is to prevent the change of normative relations. With this

terminology in hand we can now ask what kind of right the right to rule is and, respectively,

what the normative status of legitimate political institutions amounts to.

3. Legitimacy as a claim right?

If legitimate political institutions have any rights at all, certainly many of these rights have to

be claim rights. The IRS's right, for example that I pay 35% of my gross salary as income tax

is a claim right, since I have a duty towards the fiscal authorities to pay this sum. The Federal

8
Republic of Germany right against Denmark, that Denmark refrains from annexing Southern

Schleswig is a claim right as well, because Denmark is subject to a duty not to annex

Southern Schleswig. And a policeman's right not to be resisted during an arrest corresponds

with the culprit being under a duty not to resist the efforts of the officer, etc. If claim rights

form such an important part of the (assumed) normative infrastructure of political

institutions, what would be more natural than to define legitimacy itself – the right to rule –

as a claim right?

When Legitimacy is conceptualized as a claim right, the question immediately arises what

exactly legitimate political institutions have a claim to and what corresponding duties are

owed to the government. The classic answer to this question is that legitimacy is a right to

command which is correlated with an obligation to obey the law. This view is so widespread

that it is often referred to as the "traditional view" (Copp 1999: 10). A clear statement of this

position can be found, for example, in John Simmons classic Moral Principles and Political

Obligations:

"I referred earlier […] to the doctrine of the 'logical correlativity' of rights and obligations
(or duties); the existence of every right is supposed by this doctrine to entail the existence
of a corresponding obligation, and vice versa. Specifically, we were concerned with
political obligation and the right of the government to command, which have
traditionally been supposed to be logical correlates. Thus the right to command has been
thought to be granted the government in undertaking an obligation of obedience to it."
(Simmons 1979: 195)

Simmons here formulates and endorses the traditional view, which I will call the claim right

thesis. It defines legitimacy as (a) a right to command, (b) which correlates with an obligation

to obey, (c) that is owed to the commanding actor, i. e. the state or the political order. Despite

its initial plausibility, three problems arise from this position which ultimately cast doubt on

all three parts of the claim right thesis. The first objection argues that given the normative

structure of claim rights, the right to rule cannot possibly be one. The second objection

challenges the thesis that all claims resulting from government action are also owed to the

government. The third objection finally demonstrates that many core functions of political

institutions were impossible to fulfill if political legitimacy were merely a right to command

which correlates with a duty of obedience.

The first problem with the claim right thesis refers to its normative plausibility – or lack

thereof. If we look back at Hohfeld's typology of rights, it becomes obvious that there must

9
be something wrong with the characterization of legitimacy as a claim right. Claim rights are

by nature passive. They contain no information about what is or is not allowed for the right-

bearer to do, that is, they do not entitle to any kind of action, physical or normative. Their

sole function is to regulate the conduct of third parties towards the right-bearer.

Consequently, the (active) right to command cannot possibly be a (passive) claim right

(Green 1988: 235). Adherents of the claim right thesis must therefore separate the right to

command from the claim to the commanded action. Due to its normative structure, only the

latter qualifies as a claim right. But what kind of right is then the right to command? Since it

is an active right, that is a right that entitles the right-bearer to a specific physical or

normative action, it can only be a privilege or power. As we have seen privileges and powers

differ in their object of reference. Privileges entitle to physical actions, whereas powers

enable the change of normative relations. Now, according to the claim right thesis,

commands generate a duty to perform the action commanded, which is a clear instance of

altering a normative relation. Therefore, the right to command can only be conceptualized

plausibly as a power right. Adherents of the traditional view should therefore formulate

more precisely that they define legitimacy as a normative power to issue commands, which

generate a duty to perform the actions commanded that is owed to the commanding actor.

Put that way, however, the normative core of the concept of legitimacy is no longer a claim

right, but a normative power to create, alter or abolish claim rights and corresponding

duties.

A second objection against the claim right thesis is concerned with the view (see point c

above) that the duties created by political authorities through commands or norms are

primarily (or exclusively?) owed to them. Given the structure of modern legal systems and

the intuitions we have concerning who is wronged in case of a crime, this just seems

implausible: Most legal norms do not regulate the behavior towards the political system and

its representatives, but between the citizens themselves. If citizen A breaches a contract with

citizen B, commits a theft against her or fails to comply with his alimony payments, then A

has primarily violated a duty towards B and not against the political institutions that created

these particular rights (for a similar argument see Enoch 2012). But exactly that would follow

from the claim right thesis. This position is not only counterintuitive, but also contradicts the

structure of any modern legal systems. Even in Germany, where the principle of ex officio

disposition is much stronger than in the common law tradition, the entire private law is

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dominated by the principle of party disposition. The state only has a right to deal with

private law disputes between citizens if one of the parties brings an action. 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. This fixation on duties towards political institutions

seems to me as a relic from a theistic worldview, where offenses against god’s creation are

ultimately crimes against god and not against the creature harmed.

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 1961: 26-49). 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.

4. Legitimacy as a privilege to use corecion?

A second conceptual possibility consists in understanding the normative core of legitimacy

as a privilege (cf. Smith 1973, Ladenson 1980, Wellman 2001, Buchanan 2002). Such a position

seems attractive, since it foregoes the difficulties highlighted by philosophical anarchists

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with the idea of political obligations while at the same time preserving some of the specific

normative status that political institutions are traditionally thought to have. 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. As we have seen privileges are normative relations in which the normative

advantaged party is free vis-à-vis the normative disadvantaged party to perform certain

actions at will, since it is under no duty towards the disadvantaged party to refrain from the

actions in question. Conversely, the disadvantaged party in a privilege/no-claim relation is

under no duty not to interfere with the actions of the right-bearer, let alone to support him in

his endeavors. 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 1980: 141). 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 1980: 141).

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 1986: 23-28). For Raz, it is this appeal to normative validity that

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distinguishes legitimate political institutions from other forms of power and explains their

special demand for justification. 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" (1986: 27).

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. I am rather

assuming that this constellation is the standard case and that alternative justifications of

coercion are much rarer and/or more controversial. 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 1990: 366-

371). 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. The reason for this is that otherwise the addressees of force

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were no longer treated as a person who can act in accordance with moral reasons, but only as

a mere means, that can be used at will for the realization of alleged moral ends (cf. Pettit /

Smith 2004: 172-173; Christiano 2008: 242). 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 1986:
191).

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 (2002, 2004: 233-260). 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. According

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to Buchanan, prudential reasons may relate either to the content of the law itself – the

expected behavior is in the interest of the actor – or to the avoidance of associated sanctions

(which are independent of the content of the provision). 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 1975; 1986). For an overview of the different reasons for

compliance see the table below (see also Schmelzle 2011).

1. 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. Content-

dependent reasons for compliance can secure social order only if the substance of the rules in

question is either in (nearly) everyone’s interest or if substantial moral convictions converge

absolutely. 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.e. "battle-of-the-

sexes" scenarios), or individual non-compliance is more rational from a self-interested

perspective, for example in prisoner’s dilemma situations. 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. This is especially true for modern liberal societies, where

15
people are free to develop diverse moral outlooks and ideas of the good (Rawls 1993). 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 1999). 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 1993: 54-

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.e. basic) human rights and other moral

goods that that are subject of an overlapping consensus. 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. Political institutions would therefore only

16
be particularly powerful suppliers of emergency help, who have neither the right to set rules

nor to impose sanctions or to adjudicate authoritatively in cases of disagreement. 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.

5. 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 2010: 221). 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. Hart 1961: 91-99). 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. This fact of

17
reasonable disagreement would make their enforcement on basis of the unilateral

interpretation of one party arbitrary (cf. Waldron 1999: 88-118; Stilz 2009: 27-56 ). 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. Thus, a political

order may have, for example, the claim right that citizens must pay 35% of their gross salary

as income tax, but this claim right can only be explained satisfactorily if the political order

had a power right to set the tax rate to 35% in the first place. 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. According to the argument that I have developed in this paper, these

18
legislative and judiciary powers are both necessary if the circumstances of politics obtain,

that is when common rules are necessary for social coordination, but (reasonable)

disagreement about their specific content exists (Waldron 1999: 101-103). 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 1964: 157-160, 692-696).

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. If the

function of political institutions would now consist primarily in the effective enforcement of

19
pre-political norms and the implementation "correct" solutions for pre-defined problems,

instrumental justification strategies would be prima facie plausible. 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?), the fairness of the process becomes essential for the legitimacy of

political decisions The conceptualization of legitimacy as a power right thus refers to

procedural, that is democratic, justifications of political authority.

6. 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 2012). Its purpose was rather to illustrate that this is precisely the question

that must be asked and answered by theories of political legitimacy.

20
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