Legitimacy Research Paper

Weber (1978) distinguished between obedience to commands achieved by applying force and obedience to commands achieved through legitimation. When domination is legitimated, that is, when power becomes transformed into authority, by definition subordinates consider the exercise of authority valid. Commands are obeyed because subordinates believe they are appropriate. Force, which Weber regards as an ineffective guarantor of order in the longer term, becomes unnecessary. Social order is assured through voluntary compliance.

According to Weber, there are three general types of legitimated social orders. Traditional authority stems from ‘an established belief in the sanctity of immemorial traditions and the legitimacy of those exercising authority under them’ (Weber 1978, p. 215). Charismatic authority stems from subordinates’ belief in the singular and exceptional personal qualities of the leader. Since it inheres in attribution of extraordinary, magical qualities to an authority, it does not depend on any particular institutional arrangements. In contrast, rational–legal authority is exercised in bureaucratic settings. Bureaucracy is characterized by general, written rules, a hierarchy of positions constituting both a chain of command and a career ladder, universalistic allocation of positions based on certified expertise, and rule-application in an impartial manner by bureaucratic officials. In rational–legal authority, strictly personal characteristics of leaders are irrelevant to subordinates’ belief in the validity of leaders’ commands. Instead, rational–legal authority stems from ‘a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue commands’ (Weber 1978, p. 215). A rational– legal system is made up of an inter-related set of formal rules specifying what must, may, or must not be done—and where relevant, by whom and under what conditions. Included are formal procedural rules that authorities must follow so that any substantive commands they issue will be valid. Under principles of legality, there also are rules that specify how authority figures come to occupy their positions, and thus to have the right and duty to issue any commands at all. Under conditions of legality, authorities are subject to the rules just as are those they command. Behavior of subordinates and superordinates alike is circumscribed, taking place according to rules.

In this view, legal rules are self-legitimating by definition. To better understand what characteristics of rules or rule-production can legitimate law, and what are the further consequences of law’s legitimation or delegitimation, inquiry must be broadened and deepened. Nonetheless, Weber’s discussion of legitimacy has been seminal for three reasons.

First, conflicts based on the divergent instrumental interests of haves and have nots are endemic in stratified social orders. Weber’s concept of legitimacy suggests that people’s Cognitive and normative orientations to some legitimacy source—whether tradition, charisma, or legality—can counteract the tendency of interest-based conflicts to undermine social order. When legitimacy results from collective orientation to, and belief in, a particular set of ‘rules of the game,’ people will support and comply with decisions that run counter to their socioeconomic, political, or legal interests. Even those who consistently are disadvantaged will not rebel (Della Fave 1986, Scharpf 1999, Stryker 1994, Walker et al. 1991). Viewed this way, legitimacy may be immensely powerful in maintaining social order. Theorists and empirical researchers alike are encouraged to inquire into mechanisms producing legitimation and delegitimation of decisions, decision-making authorities, and decision- making institutions.

Second, Weber’s discussion is seminal because it points toward the potential centrality of legal order for the legitimacy, and hence stability, of the broader political system. Based on Weber’s concept of rational–legal authority, law should play a central role in legitimating any political system that is organized bureaucratically with rules formally enacted and applied by a specialized administrative staff. As Weber’s (Weber 1946, 1978) own notion of the historically increasing rationalization of modern life suggests, political systems meeting these criteria encompass much of the globe at the start of the twenty-first century. Code law and common law systems both meet the basic criteria. We most often associate democracy with law-based legitimation, but many nondemocratic systems also meet basic criteria for law to help produce political legitimacy.

Third, consistent with Weberian premises, pervasive legalization is a well-documented fact of contemporary economic and social life. New institutionalist research on organizations shows how state law penetrates the workplace (Edelman 1992, Dobbin and Sutton 1998). These scholars also document increasing organizational diffusion of nonstate, but law-like formalrational governance systems characterized by written company rules and quasijudicial, due process-oriented grievance mechanisms (e.g., Sutton et al. 1994). Such diffusion stems in part from organizations’ search for legitimacy among diverse constituencies (Stryker 2000).

In short, whether scholars focus on the formal polity or on other institutional arenas, they gain by inquiring about causes and consequences of law’s legitimacy. They also should inquire about the nature and impact for the political-economy and society of any collective ‘belief in legality.’ Such issues are related, but not identical to, those addressed in the voluminous literature on the rule of law (Walker 1988, Dworkin 1985). The rest of this research paper reviews current concepts of legitimacy. It then discusses causes and consequences of legitimation or delegitimation.

1. Legitimacy: Conceptual Debates And Clarifications

Contemporary approaches to legitimacy contain three major themes: legitimacy as cognitive orientation to a set of binding rules of the game for political and legal acts, authorities and institutions; legitimacy as attitudinal approval of those rules; and legitimacy as behavioral consent to those rules (Stryker 1994, 2000). Implicit in each definition is a different explanation for legitimacy. A normative mechanism—internalized belief in the rightness of political or legal acts, authorities, or institutions, and a consequent internalized obligation to obey their commands—predominates for scholars who view legitimacy as attitudinal approval (e.g., Tyler 1990, Della Fave 1986, Lipset and Schneider 1983). An instrumental mechanism— ordinarily provision of material resources and rewards—predominates for scholars who view legitimacy as behavioral consent. Consent can vary along a continuum from active participation to passive acceptance to sullen obedience (compare, e.g., Habermas 1975 with Przeworski 1980). A constitutive mechanism—cognitive recognition of ‘the way things are’—predominates for scholars who view legitimacy as cognitive orientation (e.g., Walker et al. 1986), Walker et al. 1991, p. 6: emphasis in original). The research on legitimacy processes by Thomas et al. (1986, p. 378) distinguished between validity—‘collective approval of a binding rule’—and propriety—‘an individual’s approval of the rule.’ Validity does not require consensus or uniformity of belief, but only that there is ‘a known institutionalized order within the collective’ (Thomas et al. 1986, p. 380). Valid rules have constitutive effects when actors conform because they view the rule as binding, even and perhaps especially if they do not personally approve of the rule or if they receive adverse outcomes when the rule is applied.

Adding to the proliferation of diverse concepts and explanations for legitimacy, some scholars emphasize the formal or procedural basis for producing cognitive orientations or internalized beliefs in legal or political acts or in entire legal or political orders, such as constitutional democracy. Other scholars suggest that unless the content of legal and political commands reflects a population’s substantive values, the commands will not be perceived as legitimate (see, e.g., Friedman 1981, Hyde 1983). The sum total of empirical research suggests that no matter what one’s definitional starting point, all the extant approaches to legitimacy processes have produced useful insights and findings (Tyler 1990, Stryker 1994, 2000). Now these insights must be put together. As Stryker (1994, p. 85, citations omitted) noted:

[Theory and research] [s]eparating recognition of binding rules from their approval is important because it suggests how cognitive awareness of a set of institutionalized rules can reproduce these rules by causing behavioral consent and attitudinal approval. Existence of valid rules logically presupposes that people presume peer and authority figures will behave according to, and in support of, those rules. Peer support feeds back to reinforce a person’s orientation to the rules, as does that person’s expectation that sanctions can be applied effectively and with peer support. Empirical findings suggest that increased collective orientation to rules lessens the mobilization of collective action against rules that are detrimental to actors’ material interests. Conversely, if peers or authority figures do not play by and support the rules, collective orientation to those rules should weaken and diminished behavioral consent should follow.

2. Legitimacy: Causes And Consequences

Attitudinal support for political or legal authorities or institutions has been a more frequent operationalization of the concept of legitimacy than has been perceived obligation to comply with the decisions of these authorities or institutions (Tyler 1990). One important line of research focusing on both types of concepts and indicators is that of Tom Tyler and diverse colleagues (Tyler 1990, 1994, et al. 1989; Lind et al. 1993).

To study the relationship between legitimacy and law-breaking in ‘the range of laws people deal with in their everyday lives,’ for example, drunk driving, speeding, littering, and minor shoplifting. Tyler (1990, p. 30) conducted research on a random sample of Chicago residents. To test the hypothesis that the legitimacy of law leads to voluntary compliance, creating either an internalized obligation to obey and/or affective support for legal authorities, Tyler analyzed data from a subsample that had recent personal experiences with the courts or police. Perceived obligation to obey the courts and police was higher than was attitudinal support for the courts and police. Both perceived obligation to obey and attitudinal support directly and statistically significantly influenced reported behavioral compliance. In an earlier study focused on political legitimacy, Rasinski et al. (1985) measured institutional legitimacy by the degree to which respondents perceived that a political official’s right to make decisions depended on his her position or legal authority. Higher institutional legitimacy lessened the degree to which negative evaluations of former US President Reagan’s policy performance translated into a generalized lack of support for the entire US political system. Clearly, political and legal legitimacy are both consequential and inter-related (see also Lipset 1994, Somers 1994).

As to sources or causes, as well as consequences, of legitimacy, Tyler (1990) found that a ‘process perspective’ on procedural justice was a more powerful predictor of law’s legitimacy than was an ‘outcome perspective.’ The outcome perspective presumes that people assess the fairness of procedures based on the degree to which they feel they can control the content of the decision. The process perspective presumes that people focus on more formal criteria like neutrality, impartiality or lack of bias. To some extent Tyler’s (1990) findings echo Weber’s assumptions about how rational–legal authority is legitimated, since in Tyler’s data, people who perceived they had been treated neutrally, impartially, honestly, politely, and with respect exhibited enhanced support for police and courts. Perceived control over outcomes also contributed to enhanced support for police and courts, but the effect of process control was greater than that of decision control. An important caveat is that neither perceived process control nor outcome control was directly related to the measure of legitimacy with the most impact on compliance with law: perceived obligation to obey.

Subsequent studies by Tyler and others continue to stress the formal procedural bases for legitimacy, whether assessed for legal or political referents. These studies investigate a wider range of legal and political acts, authorities or institutions. Tyler (1994) empirically examined the effect that evaluations of the fairness of government law-making procedures had on subjective assessments of the legitimacy of the US Congress. Evaluations of procedural fairness proved much more important for legitimacy than whether or not policies adopted by Congress matched respondents’ self-interested preferences. Tyler (1994) viewed this as strong support for the role formal procedures play in maintaining public support for political institutions, and hence political stability, even and especially when citizens do not agree with the policies adopted.

Lind et al. (1993) extended empirical research from the more everyday criminal law matters investigated by Tyler (1990) to monetarily consequential federal contract and tort litigation involving both individual and corporate litigants. These lawsuits required that litigants use arbitration, but litigants could reject the arbitrator’s decision, in which case the lawsuit went to trial. The authors found that litigants’ acceptance of the nonbinding arbitration awards was higher for both corporate and individual actors who positively evaluated the procedural justice they received.

As in Tyler’s (1990) study, positive evaluations of arbitration outcomes and of arbitration processes both significantly and positively affected perceived procedural justice, but the impact of the process evaluations was greater than that of the outcome evaluations. This points again to the role of formal procedures as a basis for legitimation. However, Lind et al. (1993) also constructed an objective indicator of how favorable or unfavorable were the outcomes their litigants received through arbitration awards. The authors assessed the direct effect of this measure and also of litigants’ subjective evaluations of their outcomes on litigants’ acceptance of arbitration awards, controlling for perceived procedural justice. Since a significant positive effect of favorable outcomes on voluntary award acceptance remained, instrumental mechanisms were, in part, at work. Similarly, an instrumental mechanism is suggested by Tyler et al. (1989) who found that felony defendants’ evaluation of judges was affected not only by defendants’ perceptions of procedural justice, but also by their perceptions of distributive justice and (negatively) by the length of sentence they received.

Finally, with respect to the role of constitutive mechanisms in producing legitimacy, researchers who distinguished conceptually between recognition of a valid rule and affective support for that rule have shown that, over time, a process of rule internationalization does occur. In laboratory experiments conducted by Walker and co-workers (Thomas et al. 1986; Walker et al. 1986; Walker et al. 1991), collective orientation to a set of rules produced, over time, approval of those rules by many individuals in the collective. In addition to this internalization effect, the researchers found that the constitutive aspect of legitimacy directly affected mobilization of collective action. In an experiment in which an experimenter-established reward structure that disadvantaged subjects was not meaningfully justified by reference to some group purpose, about 80 percent of subjects tried to initiate collective action to change that structure. When the experimenters legitimated the reward structure by clearly and explicitly linking it to the purpose of the investigation, a much smaller percentage of subjects initiated collective action, even though it remained in their material interests to do so (Walker et al. 1991).

Also inspired by Weber are inquiries into the impact that scientific–technical rationalization may have on the legitimacy of government and law. For Weber, both legal and scientific rationalization are key aspects of a broader societal rationalization trend. Weber did not always distinguish clearly between legal and scientific rationalization, but later scholars analytically distinguished between formal–legal and scientific–technical rationality (Offe 1975, Therborn 1977, Stryker 1994). This makes it possible to ask how law’s increasing reliance on cause-effect reasoning in place of formal, rule-oriented reasoning and law’s increasing incorporation of scientific expertise will affect its legitimacy (Stryker 1994, 2000). Neo-Marxist critical scholarship presumed that increasing governmental reliance on science would legitimate government by converting political issues to be resolved by popular debate into technical issues removed from popular control (Habermas 1970, 1975). The empirical literature is mixed. Political and legal authorities do adopt scientific–technical expertise intending to increase their legitimacy (Eisner 1991, Stryker 1990). But as Stryker (1994, citations omitted) noted: ‘empirical work also shows that, no matter what proponents of increased reliance on science intend, under some conditions, scientific–technical rationality increases politicization and delegitimates processes and outcomes of welfare state [political and] legal institutions.’

By analytically separating constitutive, normative, and instrumental mechanisms linking law’s enhanced reliance on science to law’s legitimacy, Stryker (1994, p. 853) deduced the consequences of each mechanism for ‘legitimacy processes, including mobilization and conflict over legal acts, authorities and institutions; and [she theorized] the conditions under which and groups for whom the three mechanisms reinfor[ced] or, conversely undercut each other in legitimating or deligitimating law.’ Stryker’s (1994) theory is consistent with diverse illustrative evidence, but the theory has not been tested directly. Still, it specifies exactly how the stability-threatening ‘legitimacy crises’ that are the focus of so much writing on government legitimacy may get created and diffused. At the same time, and consistent with conflict theory’s focus on order through change, Stryker (1994, pp. 890–1) suggests:

[The] dynamics of legitimation, delegitimation, mobilization, countermobilization and conflict are an integral part of the everyday, ordinary workings of legal institutions … Democratic politics of welfare states provide institutionalized political and legal rules for changing legal acts, authorities and institutions. Individual and collective protest can and does take place through such institutionalized channels as voting, political advertising, electoral fund-raising and campaigning, organized interest group lobbying, litigation and threatened litigation. Legally circumscribed strikes, pickets, marches, boycotts, and rallies provide potentially more disruptive but still legally institutionalized methods of collective protest … when the dynamics of legitimation and delegitimation play themselves out through these institutionalized means, they help achieve political order through legally and politically induced legal change.

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