Legitimacy is Not Authority

Law and Philosophy 29 (6):669-694 (2010)
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Abstract

The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law.

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Jon Garthoff
University of Tennessee, Knoxville

Citations of this work

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References found in this work

Convention: A Philosophical Study.David Kellogg Lewis - 1969 - Cambridge, MA, USA: Wiley-Blackwell.
The Concept of Law.Hla Hart - 1961 - Oxford University Press.
The Morality of Freedom.Joseph Raz - 1986 - Oxford University Press.
Famine, Affluence, and Morality.Peter Singer - 1972 - Philosophy and Public Affairs 1 (3):229-243.

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