On Legitimacy

The Legal Theory Blog explores the concept of legitimacy, a word that is often used but the nuances of which are not always understood.

The idea of legitimacy, and the relationship between legitimacy and legality is often at play in various social and political phenomena around us. It is certainly of great interest from the perspective of a law student.

For one, legality does not necessarily entail legitimacy, and vice versa. To take instances from the law of war: NATO's air strikes on Serbia in 1999 were widely accepted by the international community as a legitimate use of force against Belgrade's aggression in the province of Kosovo, but it would be hard to show that they were legal under the UN Charter. The Iraq war is widely seen is both illegal and illegitimate. The ongoing war in Afghanistan has legal backing (from the UN), but does it also have legitimacy?

What makes an action legitimate? As discussed on the Legal Theory Blog, various conceptions of legitimacy rely on democracy, the legal authority of the decision-maker, the reliability of the decision-making process, and finally, Rawls' "liberal principle of legitimacy," which goes:

[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.

This last bit on Rawls makes me think: how is legitimacy related to justice? Are they both essentially the same thing? From a Rawlsian perspective it may be easy to confuse the two, but from the point of of view of the other theories, they are two separate concepts. A state of affairs can be just (have just consequences) but not have been achieved through, say, democratic or reliable procedural means and hence not be legitimate. To put it in more concrete terms, one can foresee (okay, maybe not) a just situation to prevail in Iraq as an ultimate consequence of the US-led invasion, but that won't remove from the (il)legitimacy of the invasion itself.

From a legal perspective, I feel it may be best to leave aside legitimacy proper, and worry primarily about the legality of an action (which would of course include considerations
of justice, legitimacy and the letter of the law).