Peter Lindseth and the Concept of Legitimacy

by Kenneth Anderson

I did not want to let the opportunity slip by to offer one comment on Peter Lindseth’s fine book – but not from the standpoint of the EU, on which I am not an expert.  Instead, I wanted to comment and commend the discussion of legitimacy in the book, both early in an abstract sense and throughout the text in application to Peter’s overall argument about the nature of the EU.

Following Weber, one could say that legitimacy is the quality of a social order whereby individuals in society internalize, in a psychological sense, not merely a habit or custom of obedience to it legally and politically, but a genuine belief in that social, political, and legal order.  It is not merely the observable behavior of customary obedience, but a belief that it ought to be obeyed by the members of that community.  It has an intentional psychology.

In this sense, the theory of legitimacy is (a) psychological and located within individuals; (b) a psychology with respect to a social order, first, and its political and legal institutions second; and (c) genuinely “intentional” and not merely “behavioral.”  Peter gives an outstanding theoretical account of the concept of legitimacy and I commend it to everyone – and I have put my money where my mouth is and sent it to a political scientist friend with whom I am writing on legitimacy.

I want to note, however, something beyond Peter’s account – “beyond” because what I say below does not really say much about the EU debates over legitimacy and its scope. The way in which I have characterized legitimacy above deliberately emphasizes that the currently reigning intellectual crown jewel in legal scholarship, law and economics in either its rationalist or behavioral economics form, has difficulty taking on legitimacy.  Why?  Because of its irreducibly psychological character.

Weber would have accepted that legitimacy is not morally substantive and tied to some moral principle of legitimacy as such.  But he would not have accepted that it is merely obedience, or the observation of its surface habit.  The interior belief that the moral order “ought” to be obeyed is not captured by the observation of surface habitants that they do regularly obey.  Yet the latter reductivism is embraced – celebrated – by today’s move to re-define legal theory as social science.  Whatever the benefits of observable phenomena, they do not include a place for the “ought,” at least not in the thick sense that Weber believed necessary to sustain, well, legitimacy.  Accordingly, Weber was attentive to the conditions under which that interior psychological condition would thrive, which again carries his views beyond those of today’s legal behaviorists.

That is with respect to the reductivist turn of much contemporary legal theory, at least the stuff at the intellectual cutting edge.  However, those of us not among the avant garde on this issue, who do take seriously the genuinely psychological, are constrained to point out a difficulty for legitimacy as often applied in international law and organizations.  Thomas Franck was careful in his famous book to note that precisely because of the psychological and social aspect of legitimacy, at least in the Weberian tradition, it could apply only by analogy to nation-states in the supposed community of nations and within international organizations.  States do not have the same direct psychological qualities to give so full a measure of legitimacy as individuals.  ”A politics, not a society,” is how I have sometimes summed it up; the international community is at most a politics, but it is not a society, and the legitimacy that Weber describes is that of a society.

There have been various ingenious attempts to show how actual social communities are created within international organizations and their members, institutions, organs, etc.; usually these involve some reference to the coalescence of elites among themselves in a sort of horizontal globalization.  One either finds this comforting or alarming, depending upon one’s view of the Global New Class; regular readers have no difficulty identifying my view.

But this brings us back to Peter’s account of legitimacy and the EU.  The EU, on his account, shares some features of the legitimacy of a society, but incompletely, because Europe is not truly a society.  It shares some features of the legitimacy of the purely political, but incompletely, because it is more than merely an agglomeration of states.  It lacks the features of legitimacy that would give it the social legitimacy that – surprisingly, to many legal theorists, because it is “social” – is necessary to a constitutional order.  It has the legitimacy that corresponds to a dense form of the administrative state.  I agree with Peter about that; I question whether that is substantively so desirable, because the administrative state is ordinarily understood – again, on Weberian terms, to presage what (in the language of the critical theory journal Telos) is the “Wholly Administered Society” as conceptualized by New Class elites across Europe.  But ultimately this is a set of judgments and tradeoffs that only the peoples of Europe can make, even if that is descriptively what I think I see.  There is a form of legitimacy here, and it is not shallow.  But it is not constitutionalism, and it is not sovereignty as such, let alone popular sovereignty; it is administration.  It is legitimate for some things and not for others.

The practical lesson of this careful teasing out of sources, types, and kinds of legitimacy is to always ask – “Legitimate for what?”  Mistakes about that can do lasting damage, in many directions.  In that, I should hope that senior intellectuals of the EU project, especially at a moment when the stability of things that are ordinarily keys to legitimacy in a social, political, and legal order – money and fiat currency – are at least partly at issue, would ask themselves what legitimacy they hold in their hands.  To find out, or at least have a set of categories by which to evaluate that question, they could certainly do worse than reading Peter’s book.  But they would find it uncomfortable, bracing reading.

We are at an odd moment in the intellectual discussion of legitimacy.  For a sizable part of the political science discipline, and the branch of legal theory that sees itself as social science, legitimacy is a hollow concept.  Too hollow, in fact.  They need to re-think their reductivism.  For a different intellectual community, however – a large part of the international law community, the problem is that the concept is not too thin – it is too thick.  The international law theorists believe in legitimacy – so much so that they imagine that whatever the project that week, their institutions, favored actors, and structures must surely have the legitimacy necessary to carry them out.  Sometimes they do, when their aims are modest; very often they do not.  The realm of the international – it’s a politics, not a society, after all.

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