Should justice be basis for public policy rather than legitimacy Essay

Legitimacy, the Public Policy and Justice: An Introduction

Legitimacy is a psychological property of a power, organization, or social planning that direct those related to it to think that it is proper, appropriate, and fair. As a consequence of legitimacy, people believe that they should submit to judgments and policies, abiding them happily out of compulsion more willingly than out of fear of retribution or expectation of repayment. Being legitimate is significant to the victory of authorities, establishment, and institutional setups as it is not easy to apply power over others based exclusively upon the control and exercise of power. Being capable of gaining voluntary submission from majority is generally, because of their sense of commitment increases efficacy in periods of shortage, calamity, and clash.

Legality and legitimacy

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`Legitimacy’ is occasionally applied to express in general terms the norm for the `validity’ of power, that is to say its `title’ for giving orders and asking compliance from those who, in turn, are themselves under the compulsion to act upon. Thus legitimacy is strongly connected with political requirement since submission is because of commands of legal power. Thus, legitimacy presupposes legality, the existence of a legal system and of a power issuing orders according to its rules. But legitimacy offers the rationalization of legality, by a power with a characteristic of authority. It is a type of a special prerequisite, an additional force which the state applied in the name of the law.

As said by Weber, at the present time, the most standard basis of legitimacy is `the faith in authority, the willingness to abide policies which are officially correct and have been forced by established measures. As modern societies are governed by rational policy, Weber recognizes rational legitimacy with authority. This is the power of law, not of people: rules or rational policies are issued for the benefit of a prescribed standard rather than for the benefit of a personal authority. Thus, the directive of a command represents compliance to a policy rather than an arbitrary judgment. Power is justifiable to the extent that it match with rational rules. Thus, compliance is given to the policies rather than to the persons who issue the policies.

The principle of legality is hence strongly related to the contemporary notion of the state under the rule of law. Nevertheless the questions as a) what type of legitimization do this rational legitimacy proposes; b) the principles are guaranteed by this concept of power as force applied in relation to, and in the name of law. Putting this question implies ignoring the rigorously prescribed method, since it cannot be responded in solely explanatory terms. For legality to give legitimacy, on top of the `normalization’ of force, it must not essentially look up the prescribed structure of power however to its fundamental character.

A significant concern in classical political theory is the evaluative difference between lawful and unlawful power. The general case is that power must be sustained by some moral explanation a legal basis so as to survive. Hence, legitimacy is considered as a crucial prerequisite for success. The reality that power must have a moral validation has created a number of evaluative philosophies of legitimacy. Nevertheless, the introduction of legal positivism seems remove this type of validation which power required with the aim of survival. As stated by Kelsen, a legal standard is not applicable since it has a definite substance, although it is created in a definite manner. Here, it should bear in mind that, for Kelsen, law is a method of standards; the presumed fundamental standard is at the top of this normative hierarchy. Therefore, the legitimacy of each standard in the system, belong to the legal order or system, is established not by an assessment of its substance, however by the definite procedure it is formed. The only norm is whether that standard was created or hypothesized in keeping the standard of legitimacy of a higher standard.

To Kelsen, the standard of legitimacy implies that `a standard of a legal order is legitimate until its legitimacy is ended in a manner determined by this legal order or replaced by the legitimacy of another standard of this order.’ This Kelsenian rule of legitimacy is restricted by the rule of efficacy. While, in accordance with Kelsen, the legitimacy of a legal standard is not like its efficacy, efficacy is the state for legitimacy `in the sense that a legal order as a whole, and a single legal norm, can no longer be regarded as valid when they cease to be effective’. For standards to be successful, they must be implemented. A constitution or legal order is successful if the standards formed in agreement with it are generally employed and acted upon. Therefore, from the positivist standpoint, legitimacy is basically and plainly a straightforward; legitimacy develops no longer from assessment principle however from the rationales of efficacy.

In addition, legality is related with legitimacy. In the positivist notion, law is regarded as law simply if created by authorities chosen by the system itself and implemented by other authorities also chosen by the system. This implies, in accordance with Kelsen, that the law of legitimacy can be reaffirmed as the `principle that a norm may be created only by the competent organ, that is, the organ authorized for this purpose by a valid legal norm.’ Thus, the issue of the legality of a judicial verdict is the issue whether an act that claims to create a legal standard obey the higher standard which legalizes its conception is the matter of the competent power.

In brief, to the positivist, law is judged law only if made by knowledgeable authorities. Nevertheless it is observed, the power and the right of a government rely on the way it utilizes its capability. Thus, to ascertain the legitimacy of a legal order, and more explicitly of a judicial verdict, the firmly prescribed and explanatory method should be discarded. To assess law, for instance legal rules and judicial verdict, in terms of `good law’, which should be acted upon, the content of law should be observed and the end of the legal standards. A value-clause must be introduced somewhere in the legal system. Or else, it cannot be assumed that the judge is the holder not only of power, although of legitimate power.

So, legitimacy is connected with evaluative criteria for the requirement to abide by the law. Instructions, policies, or judgments can create a legitimate requirement to act upon: they give good reasons for acting in line with their content. As said by Lucy, the `legitimacy condition of law’ holds that `judicial decisions and other sources of law can in some circumstances be authoritative’. The legitimacy of the judiciary therefore calls for the respect of the authority of the courts and its verdicts. The petitioner who is ordered knows the judge who orders as a positive control. The judge should do more than applying legal power; he is to motivate proposal and enthusiastic compliance in the name of law. Law and the judge are to suggest initiative and ready compliance. The aspect of legitimacy affects normal measures for making and applying law which assure to legitimatize the prospects that are steadied this way. Law-abiding behavior, founded on respect for the law, affects extra compliance. Thus, as said by Habermas, the legal order can fulfill a socially integrative role. With the aim of fulfilling this role and the legitimacy claim of law, court judgments must be competent if being constantly made within the outline of the accessible legal order and they should be judiciously grounded in order that all parties concerned can admit them as coherent decisions.

Public Opinion, Legitimacy, and Legal Consciousness

Just about 4 decades ago, Murphy and Tanenhaus (1968) claimed that courts played a crucial function helping and legitimizing regime alteration.  By their enthusiasm to modify constitutional definitions, courts assist political establishments practice public policies. The thought of court-assisted government alteration reverberated within political science since it seemed in agreement with modern policy debates. In some instances, the US Supreme Court seemed to be producing opportunities for state and local, in addition to federal agencies, to include popular requirements for alteration. The initiative seemed rather straightforward.

‘Sometimes governmental officials can meet public demands only if certain changes are made in the rules under which politics is traditionally conducted. Furthermore, the boundaries separating constitutionally permissible and impermissible behavior are typically vague. Thus, important and controversial government policies are likely to engender disputes not only about their merits but also about whether the government, or a particular set of officials can legitimately undertake a given course of action. .… When it validates official decisions which may initially seem to many to violate the rules, a constitutional court thereby gives sanction to regime change. In refusing to validate such decisions, a court denies them its imprimatur of legitimacy.’ (Murphy and Tanenhaus, 1968, 358/359)

The prerequisite condition for legal courts to achieve government change was plain: a populace adequately responsive to the function of a legal court to allow such a court to assess and legitimatize modifications in policy required new policies. Nevertheless, on account of the low intensity of responsiveness in the public of the institutional factor of the applicable legal court, Murphy and Tanenhaus’s thought of court legitimatized governmental alteration however lacked an empirically implementation means for alteration.

However it is argued that modern research on legal awareness offers a way to explicate the role of courts to help and legitimatize government changes that keep government policy constant, to a changeable degree, with alterations in material environment and popular reaction. The forceful character of legal awareness helps courts to redefine the official law and the basic policies that have earlier ruled social relationships without sharply influencing the durable legitimacy of the state or its setups. Moreover, popular legal awareness helps this course to take place in spite of the lack of popular understanding of the institutional elements actually needed to accomplish such government alteration.

Modern literature on legal awareness provides a multi-disciplinary viewpoint that suggests new methods for dealing with this long-standing problem.

Mechanism of Legitimation

Murphy and Tanenhaus (1968) split up the system that quickened the need for policy change, a change in conventional point of view, from the method employed to validate the performance, an alteration in the basic legal policies. Their main application was on the final action of legitimization. How the people comes to the situation of wanting a policy change needing a elementary alteration in the existing policies is a matter Murphy and Tanenhaus never clearly focused upon.

Murphy and Tanenhaus employed assessments of common outlook on the supposition that only a people that recognized and accepted the rule-changing position of a constitutional court would agree satisfactory legitimacy to the later change in policies by a legal court to effectively institutionalize policy change.  The legitimacy conferred to the constitutional court as an establishment also adds to the judgments that include the rule changes, directed by the court. Therefore, Murphy and Tanenhaus concentrated upon measures of support for the Court and measures of common perceptions of the court’s function in the system.

However, for Murphy and Tanenhaus, the employment of public judgment statistics to gain the public’s acquaintance and recognition of the legal court itself was tricky. For instance, they observe that in 1949 only 17% of Americans could rightly propose the name of “the highest court of law in the United States” (Murphy and Tanenhaus, 1968). At the same time as the level of data about the highest court has apparently enlarged in recently, the difficulty remains; a large group of people do not appear to have adequate data of the function of the legal court to assist accord to a modification in the earlier traditional policies.

Rather, political analysts have mostly discarded the investigation for a direct relationship between institutional legitimacy and the legitimating function raised by the idea of government change (Caldeira and Gibson, 1992).

On the other hand, social emotional and experimental consequences about courts and legitimacy (see Gibson, 1989; Mondak 1991 ; 1994; Tyler and Rasinski, 1991; Tyler and Mitchell, 1994; Baird, 2001; see also Murphy, Tanenhaus, and Kastner, 1973; Tanenhaus and Murphy, 1981) mention the exciting opportunity of such a relationship even though scientists have improved their endeavors on measures of diffusion of reinforcement to reflect on how the general populace judges legal courts (See Caldeira, 1986; Caldeira and Gibson, 1992; Caldeira and Gibson, 1995; Gibson, Caldeira, and Baird, 1998). As said by Easton (1965, 273; see Caldeira and Gibson, 1992, 637), diffuse support can be characterized as a “reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging to their wants.” Such support is more vague; for experimental study, it has generally been interpreted and operated as “trust” (See Tyler, 1998), “satisfaction” (See Tyler and Mitchell, 1994), or “institutional commitment” (See Caldeira and Gibson, 1992, 638). Interestingly, these measures of diffuse support often implicitly or explicitly conflate it with legitimacy.

Legal Consciousness vis-à-vis the legitimacy of legal institutions

In contrast to studies on persons’ viewpoints regarding biased preferences, policy matters, or other political choices, studies on legal consciousness does not record mainly what people deliberate upon the law “but rather how what they think and do coalesces into a recognizable, durable phenomena and institution we recognize as the law” (Silbey, 2005). Researches on legal consciousness aim to outline the significance and power of law, not in the performance and judgments of legal courts, however in the performance and judgments of common people and authorized legal agents as they perform their occupations and lives. Ewick and Silbey argue that the rule of law is “an emergent feature of social relations rather than external apparatus acting upon social life. As a constituent of social interactions, the law – or what [they] call legality – embodies the diversity of the situations out of which it emerges and that it helps structure” (1998, 17).  Hence legality, as a composition of social accomplishment, consists of judgments to press forwards the right side of the street in the U.S. however on the left side in Australia and Britain, to endanger lawsuits when a neighbor’s dog knocks over one’s trash, to record workers’ reimbursement and disability when wounded on the work, to replace drivers’ licenses and auto registration documents when in an mishap, to look for a copyright for an innovation, to protest about controversial people in addition to multitude of judgments by governmental agencies, local magistrate, state or federal administration and the U.S. Supreme Court.

In studies of legal consciousness, people and their diverse social relationships are crucial factors consisting of the power and legitimacy of legal establishments. Persons are not, nevertheless, regarded as carriers of explicitly targeted judgments and political instructions for representative government, however rather as representatives of legal connection, change, and legitimacy as they achieve, invent, or oppose literary tropes, ideas, and explanations that bring into play political and legal relationships. In all social relationships, persons are behavioral and cognitive members in the social structure of cultural plans and people spoken and bodily appearance support incrementally, change existing, or start the development of inventing and accepting new plans.  Together with others, they wholly create or rebuild each day in various fields and in several, usually conflicting structures the connotation people credit to law, policies, power, and authority.  Nevertheless, only some of these dealings or significances are entirely legal, or political.

Thus, “legal consciousness … consists of mobilizing, inventing, and amending pieces of these schemas” that refer to law and legality (Silbey, 2005, 349). In view of the fact that the creation and diffusion of legal awareness happen by way of many social operations, a lot of which may not look initially to have anything to do with law, individuals’ feelings and manners are applicable only when accumulated and spread by means of common or collective social implications “Law and legality achieve their recognizable character as ‘the rule of law’, despite the diversity of constituent actions and experiences … because individual transactions are crafted out of a limited array of generally available cultural schemas. These few but generally circulating schemas are not themselves fixed or immutable, but are also constantly in the making through local invocations and inventions” (Silbey, 2005).

The thoughts of legal awareness present theoretical and academic benefits to the study of the correlation among government change, public outlook and legitimacy. In contrast to public opinion surveys, studies of legal awareness do not concentrate on solely legal or political expression to recognize legal authority and legitimacy. In other words, they do not concentrate so strongly to the surface of what is to be elucidated, or rely completely on what is clearly expressed and self-conscious. Rather than, study on legal awareness (See Bumiller, 1988; Fleury-Steiner, 2003; Fleury-Steiner and Nielsen, 2006; Greenhouse, 1986; Hoffman, 2003, 2005; Hull, 2003; Larson, 2004; McCann, 1994; Merry, 1990; Nielsen, 2000; Pelisse, 2004; Sarat, 1990; Yngvesson, 1993) proposes that spread and maintenance of cultural plans are so entrenched in each day social transactions that individuals generally are unsuccessful to understand the usually flawless diffusion through each and every social exchange. “Law is powerful, and rules everyday life because its constructions are uncontroversial and have become normalized and habitual. Law’s mediations have been sedimented throughout the routines of daily living, helping to make things move around in more or less clear ways, without having to invoke, display, or exert its complicated and difficult actions, particularly its decisive, physical force” (Silbey, 2005). Hence, people defer to traffic lights, carry seat belts, understand warning labels on electrical devices, and abide by directions on pharmaceutical goods.  These legally-mandated interactions are so scheduled that the people do not remember the efforts that created the particular legal policies and the essential language.  Even though there are may be some people who nevertheless identify each one of these as a mark of a ongoing political fight, the legal substance is generally included health, safety, or care.

The regular or incremental change of implications and the condition related with an action, for example where or how to drive a car, or a group, such as African-Americans, may take place without individual or communal knowledge of the level of the change awaiting new indications and new standards have explicitly become known and are overtly disputed culturally and politically. The slow appearance of alterations in cultural designs during routine social exchange may facilitate to clarify why it is generally impractical for survey study that raise a direct question regarding support for particular policies to successfully secure the inclusive nature of a change in an individual’s perception.  People may not recognize the level to which their explanatory schemes have been recomposed since the shifts take place during many conventional, abnormally simple and unreflective dealings. The take-for-granted standards of daily transactions strengthen the appropriateness and legitimacy of the new arrangement at each phase of the process and, as people participate in social discussion, they are implicated, lacking planning or purpose, in supporting socio-cultural alterations.  As the law’s ‘meanings and uses echo and resonate with other common phenomena” (Ewick and Silbey, 1998, 17) by using shared words and descriptions (Lakoff and Johnson, 1980), legality is usually only one among many institutional recipient of the schemes that consists of social dealings, making it mainly hard to identify ongoing change in explanations applicable to measurement of a definite set up or policy or law. Hence, the survey examiners’ endeavors to find definite and quantifiable approach concerning specific mails be unsuccessful to acquire the point to which people may have collectively changed their perception of the suitability of the existing policies.

There have been expressed viewpoints of people and the collective cultural alterations may clarify why some social developments generally seems to materialize in the public view without any noticeable introduction. Anyhow, surveys generally start to record the expressed behaviors of people only when policy matters are already politically disputed or, even at the time when legal courts are already involved in policy change.

The approach of cognitive/cultural diffusion intrinsic in legal awareness – by means of normal, daily social dealings – also facilitate people to understand the methods by which the type and legitimacy of an thought can be changed at the same time as the political power of an conflicting group may remain overriding and effectual. The change of erstwhile account and the development of new plan by way of daily relationships weaken the social authority of some groups, and encourage the increasing power of opposing groups.  Ultimately, the increasing authority of the opposing group may be amassed at the cultural level to support a change in the existing policies. Notably, the process of inventing and approval of new plans by means of ordinary exchange, media, and habit ways that social standards and potentials may be changed even as policies, prescribed laws continue to sustain application of power in a opposing direction. Legality as endorsed and promulgated by way of social interaction need only be freely fixed to the position of prescribed law and it may openly defy it (Ewick and Silbey, 1998 & 2003). Indeed, the strongest statements of recognized law may take place at points where there is explicit contestation over the existing policy since social standards and official policies are no longer constant.  The deterioration in standards and the collapse of past established procedures and thoughts usually repeated brings into significance the power intrinsic in legal influence and action.


There is a need for more dynamic assessments of the people’s involvement in creating institutional legitimacy and organization change would gain the powerful collection of academic discernment, avoiding the narrowly considered representation of mind and action that have shown less successful in promoting organization perception and have been so hard to resolve theoretically. Rather than, people should construct their assessments of law and legal establishments with the identification that they are perpetually in the creation, utilizing what is accessible, revisable and at times unanticipated, yet also comfortably well-known and familiar.


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