N.P. Adams (University of Virginia), "The Concept of Legitimacy"
Canadian Journal of Philosophy, 2022
This paper arose out of grappling with two challenges. The first challenge, from one of my postdoc advisors, among others, was why we need legitimacy in political philosophy at all. The first virtue of institutions is justice and maybe we need justice-lite for non-ideal circumstances, but why think legitimacy is something distinct? The second challenge arose when thinking about how to best theorize political legitimacy. Looking at the wide range of cases where people usefully deploy legitimacy evaluations, some theorists assert that legitimacy is deeply polysemous, so no general account is possible and theories of political legitimacy need to be carried out on their own special terms. This paper answers both challenges by presenting what I call the gatekeeping account of legitimacy. In short, legitimacy discourses in general play a gatekeeping function and, when applied to the state, this amounts to evaluating not whether the state is just but whether it is meeting “non-formalized minimal telic standards” for states. By investigating the role that legitimacy discourses play in social practices more broadly, we can see how legitimacy is distinct from justice in the sorts of cases political philosophers are most concerned with. (Of course, the hope is that this strategy can also then guide us in other cases of concern, for example with respect to global governance institutions.)
I focus on the nature of social practices, drawing on sociologists’ notion of boundary work. I don’t say much about this methodological choice in the paper but the idea is that sociology gives us a better grip on how it is that a functioning social practice can result from the blooming, buzzing confusion of individuals deploying whatever conceptual and normative resources they have at hand in particular circumstances. I start with Buchanan’s idea that legitimacy functions as a kind of metacoordination but give it a sociological spin rather than a decision theoretic one. Here’s how that goes. Social practices are significant patterns of behavior that only exist and persist because people continue to put them into practice by taking up the role of practitioners and deploying practical reason in distinctive practice-oriented ways. Central to practices’ functioning is the assignment of practice roles; for example, in the practice of a university, some persons need to take up the role of professor and others the role of student, spaces need to take the role of classroom, times the role of class meetings, and so on. Thus, practices rely on the ability of practitioners to identify occupants of practice roles and so to treat role occupants according to their practice status. Universities function well only when and because professors teach students successfully in some relevant senses. In a well-functioning practice, identifying role occupants is routine, enabled both by formal rules and informal standards. If a jokester stands up at the start of class on the first day of the semester and starts taking attendance, nobody will be fooled for long (not least because there’s just not many good reasons to impersonate a professor); professors are usually notably older than their students and possess good knowledge of the subject, they may have an ID that indicates their personal identity status, and in the end there are employment contracts in the HR department.
Due to the nature of social practices, however, it is always possible that such clarity dissipates and practitioners encounter borderline cases, where rules are unclear, forgeries are possible, and so on. As an isolated event, borderline cases are not worrisome. But borderline cases are a systematic threat, not least because some practitioners will be interested in stretching the practice, intentionally creating borderline cases. In Gieryn’s classic analysis of boundary work, phrenologists were attempting to stretch the boundaries of science so that phrenology was considered legitimate science and a phrenologist could take up the Chair of Logic at the University of Edinburgh. The problem of bad boundaries can crop up in a variety of ways for a variety of reasons, including that different practitioners have different views of what counts as a good boundary. How can practitioners decide whether a purported role occupant should be treated as part of the practice in a borderline case? Where formalized rules run out but practitioner choices are still pressing, practitioners draw on a shared understanding of the practice telos to evaluate whether to treat entities as genuine role occupants or not. To defend against the phrenologists, John Tyndall and other anatomists couldn’t appeal to any formalized categories, they had to convince relevant groups of people that phrenology was bad science, based on some view of good science. In such liminal cases, then, practitioners deploy non-formalized minimal telic standards. If practitioners share non-formalized minimal telic standards, their behavior will be patterned such as to define a new boundary in the practice, solving the bad boundary problem they faced. To ensure that phrenology was disqualified as a science, Tyndall had to convince relevant university and community members to (sufficiently robustly) share some understanding of science so that they would coordinate their behavior and effectively remove phrenology from consideration. Shared evaluations of this sort invigilate practical inclusion into the practice: if an entity meets the relevant standards, practitioners treat it as if it has the status it purports to have, so it can play its characteristic role in the practice. Call this the gatekeeping function. When we look at how legitimacy evaluations are distinctively employed, we can see that they behave as non-formalized minimal telic standards. If this is right, then legitimacy discourses play the gatekeeping function. Phrenology is not just bad science, it is illegitimate science: it should be treated as not a science at all, and so not eligible for support from universities or for the public prestige of scientific research. Plenty of poorly done science is still legitimate; illegitimacy is used as an evaluation to invigilate whether something counts as science at all.
Enough of classrooms and phrenology; how does this matter for the state? As all social practices do, the state faces various problems of bad boundaries. Many of these could raise problems of political legitimacy in a general sense. But “political legitimacy” in the philosophical literature is a term of art, usually analyzed as the right to rule. This is the problem not of a bad law, or of a bad office, but of a bad state on the whole. Legal subjects have various tools for evaluating the state and its legal regime from within law, for example standards of constitutionality. But internal standards can run out—as when a long chain of abuses and usurpations call into question the adequacy of the system for reforming itself—and it is always open for us to step outside the state and its legal regime and ask whether it is doing an adequate job at ruling or whether it needs to be replaced. That is, when formalized standards run out, we employ non-formalized minimal telic standards to ask whether we should treat the state as if it has the status to carry out its characteristic functions, as if it has the right to rule. So my account tells us what we expect in the case of state legitimacy, but it situates that within a broader account and clarifies legitimacy’s relation to justice. As I put it in ongoing work, the state is constituted in law, aspires to justice, and is invigilated by legitimacy.