Too Legit to Fit (Into Anything Sensible)?, by Philip Wallach

by Guest Blogger — Monday, June 1, 2015

In this post, I will articulate my conception of legitimacy as distinct from legality, and explain what lawyers and policymakers have to gain by understanding the difference. I have to beg readers’ forgiveness for being rather philosophical and long-winded here, and I promise to move on to more exciting and concrete action in subsequent posts. Slogging through this post won’t be necessary to enjoy the others.

In his post introducing me, Peter Conti-Brown notes that he finds it difficult to understand exactly what I mean by legitimacy, as distinct from both legality and “popularity.” His confusion is understandable: anyone looking for a precise formula of what makes something legitimate in To the Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis won’t find it, in spite of “legitimacy” being right there in the subtitle. That leaves me seeming suspiciously noncommittal relative to political theorists who offer clear normative prescriptions for legitimacy or to lawyers, who most often conflate legality and legitimacy with supreme confidence.

While I often envy the theorists’ precision and the lawyers’ assurance, I have rejected their normative approaches in favor of a positive one. That is, following Max Weber, I treat legitimacy as an emergent social fact to be understood and explained, rather than dictated by any group of scholars. Weber distinguished this approach to understanding legitimacy from that of “legal dogmatics,” and we might add that there are plenty of other academic flavors of “dogmatics” to go around. In other words, just because some theorists or lawyers eagerly classify some government action as (il)legitimate, that doesn’t make it so.

Why not? Even if society at large accepted their claims (which, no), the theorists and the lawyers do not agree among themselves about their classifications. They make their livings disagreeing with each other. The theorists’ arguments are, literally, interminable. The lawyers’ arguments about what is really legal do terminate, sometimes with purportedly authoritative judgments from courts, but those judgments have limited power to change minds about legitimacy.

Citizens’ judgments about legitimacy are rarely a clean binary: universal public acclamation of and violent reaction to government actions are both rare. In thinking about legitimacy, we should think explicitly about most citizens’ ignorance and indifference: the truth is most people don’t think much about most government actions–even most of the people who are generally attentive to politics and public affairs, or even most people who do it for a living! There is simply too much going on to have even vaguely well-informed views about most issues. That fact is embarrassing to scholars and wonks (we don’t want to hint at our own limitations) as well as to champions of democracy (who don’t want to concede H.L. Mencken’s acerbic definition), and so it isn’t discussed very much in polite academic circles. But it has a lot to say about how legitimacy is determined.

Because they are only dimly attuned to most issues, people are generally willing to accept outcomes of the normal legal process as legitimate without further reflection. And so most of the time, for most of the issues, thinking about legitimacy as separate from legality is neither interesting nor terribly fruitful.

But not always–and especially not always in crises, during which legality and legitimacy tend to diverge. As the public tunes in to something going very wrong, people will often be unsatisfied to find out that an action has a solid legal basis. Conversely, when something that looks like an effective solution is offered, people may turn out to care very little about running roughshod over legal limits. As Senator Charles Schumer (D -NY) put it, nicely encapsulating a common attitude, “When you are staring into the abyss, you don’t quibble about details” (p. 56). Both kinds of divergences are important when we look to the public’s reception of the financial crisis responses.

So what should we say about the relationship between legality and legitimacy? My claim is that legality is neither necessary nor sufficient to an action’s legitimacy. As Peter notes, I have three other factors that matter: democratic legitimacy, trust, and accountability. The latter two are particularly important to my narrative: trust of government officials was in short supply in the late Bush administration, and Henry Paulson did not exude “guy next door” trustworthiness, to say the least. That made the task of legitimating actions taken by the Treasury much more difficult, and often meant that the inclusion of accountability mechanisms designed to ensure appropriate government conduct became crucial to securing the backing of a majority political coalition.

What about democratic legitimacy? This is pretty close to what Peter calls “popularity.” If some action has a good legal pedigree but ninety percent of the country actively hates it, then its legitimacy will be abysmal. But the truth is that ninety percent of the country rarely agrees on anything. And on matters of complex decision-making, most citizens will not be able to form an opinion based on their own analysis; if they care enough to take a stand, it will be on the basis of some expert whose analysis they trust. That means, firstly, that opinion polls are a lousy guide to the kind of democratic support that actually matters. Knowing how random voters answer a (usually extremely simplistic) polling question often means very little. Secondly, it means that democratic opinion in the relevant sense is generally formed through discussion among those with some kind of expertise before filtering out to the (somewhat) broader public.

Because it doesn’t make sense to aggregate opinions that don’t (or barely) exist, many thinkers try to identify some collective judgment of a polity that is not merely synonymous with “public opinion” as we usually think about it. On a grand scale, I think this is what Rousseau’s general will, Hegel’s objectified historical spirit (maybe?), and many American attempts to discern a republican notion of the “common good” are chasing after. But the idea comes up in more mundane forms in works more likely to be familiar to Notice & Comment regulars, too. In his interesting book about statutory interpretation, Einer Elhauge posits the idea of “currently enactable preferences” to encapsulate the idea of a state of opinion in the polity that would translate into the ability to pass some new law. In The Executive Unbound, a book about which I’ll have more to say in later posts, Eric Posner and Adrian Vermeule assert that the public is an important constraint on government action, but “the ‘public’ here does not necessarily mean a fair aggregation of the views of all citizens; it is a stand-in for the complex process by which the views of elites, interest groups, ordinary citizens, and others ultimately determine the de facto lines of political authority” (78).

To which you may say: huh? I have to admit that when I encountered these ideas the first time, I thought all of these authors were just being slippery, creating a way for them to give the stamp of legitimacy to things they liked. Now I think they are pointing in the right direction, if not always so clearly. Looking for “democratic” support generally means reading newspaper op-eds and blogs rather than polling and then seeing whether anyone tries to do anything about expressions of anger. For my purposes, that often meant seeing whether any members of Congress decided to introduce legislation or at least try to embarrass someone at some oversight hearing.

If anyone is still with me at this point, I’ll end by finally addressing Peter’s challenge: to identify, under my “formulation of legitimacy and legality, a decision that is plainly legal, grossly unpopular, and still legitimate to those who hold the decision in low regard.” As Peter points out, many people (and especially many of the noisiest people) are unable to dislike any political choice without also instinctively regarding it as illegitimate—alleging betrayal of America’s founding ideals and/or the Constitution is an especially popular tack. Likewise, sufferers of Bush Derangement Syndrome and Obama Derangement Syndrome manage to convince themselves that the 43rd or 44th president, respectively, is so clearly evil as to make all of his works illegitimate. So every government decision will have some denouncers, and in our current political moment the rhetoric of illegitimacy tends to fly around rather freely and visibly—all the more so around government actions that are infamous enough to warrant being called “grossly unpopular.” But where legality and accountability are nevertheless strong, legitimacy can limp along even as the public judges an action harshly, at least among the relatively sober amongst us.

As an example, take the federal government’s role in the response to Hurricane Katrina, widely considered one of the biggest debacles of 21st century governance in America (which is saying something). Katrina is standardly invoked to explain how George W. Bush came to be so widely distrusted; “Brownie, you’re doing a heckuva job” is shorthand for incompetence caused by cronyism. But apart from the kind of people who think FEMA runs concentration camps, nobody doubted that the agency had an appropriate legal role to play or that Brown’s appointment was procedurally improper. There was plenty of accountability after the fact: Brown had resigned within weeks, and the Bush administration took it on the chin. And so we can say that the response to Hurricane Katrina was as legitimate as a grossly unpopular government action ever could be. Impartial observers recognized that the administration was acting legitimately if disastrously incompetently: right to try, wrong to fail. Election or appointment of more competent executives, rather than impeachment for malfeasance, was the appropriate remedy. Acknowledging legitimacy allows citizens to live with and address failures, rather than letting them derail a government.

Next time, on to Peter’s second challenge: was the failure to rescue Lehman Brothers from bankruptcy the fateful weekend of September 12, 2008, the result of political constraints or legal ones? And what does our answer imply about the role we expect the Federal Reserve to play?

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