The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of (...) the thesis, I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure. (shrink)

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced (...) procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. (shrink)

Here is my thesis (and the outline of this paper). Increasingly secret, complex and inscrutable computational systems are being used to intensify existing power relations, and to create new ones (Section II). To be all-things-considered morally permissible, new, or newly intense, power relations must in general meet standards of procedural legitimacy and proper authority (Section III). Legitimacy and authority constitutively depend, in turn, on a publicity requirement: reasonably competent members of the political community in which power is (...) being exercised must be able to determine that power is being exercised legitimately and with proper authority (Section IV). The publicity requirement can be satisfied only if the powerful can explain their decision-making—including the computational tools that they use to support it—to members of their political community. Section V applies these ideas to opaque computational systems. Section VI addresses objections; Section VII concludes. (shrink)

In this essay I defend an institutional approach to democratic legitimacy against proceduralist approaches that are commonly endorsed by deliberative democrats. Although deliberative democrats defend a complex view of democratic legitimacy that aims to account for both the procedural and substantive dimensions of legitimacy, most accounts of the relationship between these dimensions currently on offer are too proceduralist to be plausible (I). By contrast, I argue that adopting an institutional approach helps provide a more convincing account (...) of the interplay between procedural and substantive aspects of democratic legitimacy which in turn illuminates the intricate relationship between public deliberation and decision-making procedures such as voting (II). This account also enables us to see what is wrong with interpreting the legitimacy of majoritarian and non-majoritarian institutions in terms of an alleged conflict between popular sovereignty and rights protections. In opposition to this view, I argue that the proper standard for judging the democratic legitimacy of both majoritarian and non-majoritarian institutions is whether they enable an ongoing recursive process of deliberative contestation or whether they generate antidemocratic shortcuts instead (III). (shrink)

How can health plans make fair determinations about when “experimental” (and costly) treatments such as high dose chemotherapy with autologous bone marrow transplantation should be covered despite lack of clear clinical consensus about their benefits? Different models for managing “last chance” therapies evolving in some health plans offer promising examples of how issues of fairness and legitimacy in decisionmaking can be addressed.

This book offers a systematic treatment of the requirements of democratic legitimacy. It argues that democratic procedures are essential for political legitimacy because of the need to respect value pluralism and because of the learning process that democratic decision-making enables. It proposes a framework for distinguishing among the different ways in which the requirements of democratic legitimacy have been interpreted. Peter then uses this framework to identify and defend what appears as the most plausible conception of democratic (...) legitimacy. According to this conception, democratic legitimacy requires that the decision-making process satisfies certain conditions of political and epistemic fairness. (shrink)

Political legitimacy and causal responsibilities are not the trumps they may appear to be in considering the justifiability of foreign intervention. Indeed, the major determinants that should guide the international laws and their enactors regarding justifiable foreign intervention are: the negative duty not to partake in an unjust system that oppresses the people of another country, moral uncertainty, and the realities of the agents in question. These jointly work to constrain the redesign of international law to a narrower scope (...) than in an ideal game-theoretic scenario. (shrink)

Whilst legitimacy is often thought to concern the processes through which coercive decisions are made in society, justice has been standardly viewed as a ‘substantial’ matter concerning the moral justification of the terms of social cooperation. Accordingly, theorization about procedures may seem appropriate for the former but not for the latter. To defend proceduralism as a relevant approach to justice, I distinguish three questions: (1) Who is entitled to exercise coercive power? (2) On what terms should the participants to (...) a scheme of cooperation interact? (3) How should the costs and benefits produced by cooperation be distributed? Legitimacy concerns (1), whereas justice applies to (2) and (3). Although the appropriateness of proceduralism is debatable in relation to (3), it seems well equipped to address the justice-related question in (2). And it does so by focusing on the inherent moral acceptability of the way in which persons are treated by the procedures through which they interact. (shrink)

Moral legitimacy entails intrinsic value and helps executives convince firm’s stakeholders and the general public of the ethical acceptability of an institution or its activities or projects. Social license to operate is the social approval of those affected by a certain business activity, and it is receiving increasing attention, especially in the context of controversial projects such as mining and public works. Moral legitimacy provides ethical support to SLO. Drawing from the Aristotelian-Thomistic tradition and taking substantive justice and (...) the common good of society as the key references, this paper applies the Triple Font of Morality Theory and proposes four criteria which serve to evaluate moral legitimacy: contribution of the project or activity to the common good in a better way than other alternatives, morality of the means and procedures employed, ethical evaluation of the situation including stakeholder concerns and needs, and ethical evaluation of reasonably foreseeable consequences associated with the project and how to minimize possible damage or risks, and balance foreseeable negative consequences and benefits. The application of these criteria is illustrated through a project, presented as a case study, which certainly involved controversy and problems with SLO. The project was the construction of a rail tunnel for a high-speed train near the foundations of the Sagrada Familia, the well-known monumental church in Barcelona, Spain. (shrink)

A conception of legitimacy is at the core of normative theories of democracy. Many different conceptions of legitimacy have been put forward, either explicitly or implicitly. In this article, I shall first provide a taxonomy of conceptions of legitimacy that can be identified in contemporary democratic theory. The taxonomy covers both aggregative and deliberative democracy. I then argue for a conception of democratic legitimacy that takes the epistemic dimension of public deliberation seriously. In contrast to standard (...) interpretations of epistemic democracy, however, the conception I put forward avoids procedure-independent standards of correctness. Instead, it relies on a procedural social epistemology and defines legitimacy entirely in terms of the fairness of procedures. I call this conception of democratic legitimacy `Pure Epistemic Proceduralism'. I shall argue that it should be preferred over `Rational Epistemic Proceduralism', the conception of legitimacy that underlies the standard interpretation of epistemic democracy. Key Words: legitimacy • deliberative democracy • epistemic democracy • social epistemology. (shrink)

One way to evaluate electoral rules is instrumental: we ask what effects they tend to produce. A second way is constitutive: we ask what kinds of values they embody, or whether the procedures they effect respect people's rights or moral status. A third way is genetic: we ask by what procedure the electoral rules were adopted. I shall argue that in judging the value or the legitimacy of electoral rules, we must consider not only (1) the values they serve (...) instrumentally and (2) the values, rights, or statuses they embody or respect, but also (3) the procedure by which they were chosen. I argue, moreover, that the best way to choose electoral rules in representative governments is on an ongoing basis via a randomly selected citizen assembly whose decisions are binding independently of any appeal to referenda. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins (...) in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

Research on the effects of particularistic human resource practices (i.e., favoritism and nepotism) on organizational outcomes has concentrated on direct negative attitudinal and behavioral responses. By integrating legitimacy and social exchange theories, this paper proposes and tests the idea that legitimacy of particularistic practices might moderate their negative effects on employee attitudes at work. Through a survey of 415 employees across multiple organizational types, we show that the legitimacy of particularism mitigates its negative effects on affective commitment (...) and perceived distributive and procedural justice in non-family-owned businesses only. We discuss implications for theory and practice. (shrink)

The paradox of persisting opposition raises a puzzle for normative accounts of democratic legitimacy. It involves an outvoted democrat who opposes a given policy while supporting it. The article makes a threefold contribution to the existing literature. First, it considers pure proceduralist and pure instrumentalist alternatives to solve the paradox and finds them wanting — on normative, conceptual, and empirical grounds. Second, it presents a solution based on a two-level distinction between substantive and procedural legitimacy that shows (...) that citizens are consistent in endorsing the upshot of democratic procedures while opposing it. Third, it unpacks three reasons to non-instrumentally endorse such procedures — namely, the presence of reasonable disagreement, non-paternalism, and the right to democratically do wrong. In so doing, the article shows that those accounts of democratic legitimacy that rely on reasonable disagreement as a necessary condition for democratic procedures being called for are flawed, or at least incomplete, and offers a more complete alternative. (shrink)

Despite being fundamental to democracy, the normative concept of the people, i.e. the demos, is highly unclear. This article clarifies the legitimacy of the demos’ boundaries by structuring the debate into three strains of justification: first, normative membership principles; second, its democratic functionality and the necessity of cohesion for this essential function; and third, a procedural understanding of the demos. It will be shown that normative principles can only justify its expansion towards the ideal of an unbounded demos. (...) On the other hand, the democratic function of the demos can be understood as a criterion for its restriction. This, however, is only possible on the basis of an existing polity and not for the initial constitution of the demos. Consequently, a legitimate demos has to take both inclusionary and exclusionary tendencies into account. These tendencies need to be weighed against each other in the democratic process, which leads to a fundamentally procedural understanding of the legitimacy of the demos. (shrink)

This book addresses the 'legitimacy gap' created by the removal of religion as a source of legitimacy for the foundation of secular states, when many of the world's states are still profoundly religious but require procedural, rather than substantive, grounds for constitutional arrangements.

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. (shrink)

The debate over rival conceptions of political legitimacy tends to focus on first-order considerations—for example, on the relative importance of procedural and substantive values. In this essay, I argue that there is an important, but often overlooked, distinction among rival conceptions of political legitimacy that originates at the meta-normative level. This distinction, which cuts across the distinctions drawn at the first-order level, concerns the source of the normativity of political legitimacy, or, as I refer to it (...) here, the grounds of political legitimacy. If we focus on the grounds of political legitimacy, there are three main conceptions of political legitimacy: will-based, belief-based, and fact-based conceptions. I present an objection to each of those main conceptions and defend a hybrid account of the grounds of political legitimacy. (shrink)

Whenever the legitimacy of a new or ethically contentious medical intervention is considered, a range of influences will determine whether the treatment becomes accepted as lawful medical treatment. The development and introduction of abortion, organ donation, gender reassignment, and non-therapeutic cosmetic surgery have, for example, all raised ethical, legal, and clinical issues. This book examines the various factors that legitimatise a medical procedure. Bringing together a range of internationally and nationally recognised academics from law, philosophy, medicine, health, economics, and (...) sociology, the book explores the notion of a treatment, practice, or procedure being proper medical treatment, and considers the range of diverse factors which might influence the acceptance of a particular procedure as appropriate in the medical context. Contributors address such issues as clinical judgement and professional autonomy, the role of public interest, and the influence of resource allocation in decision-making. In doing so, the book explores how the law, the medical profession, and the public interact in determining whether a new or ethically contentious procedure should be regarded as legitimate. This book will be of interest and use to researchers and students of bioethics, medical law, criminal law, and the sociology of medicine. (shrink)

There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision‐making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is the people (...) who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto‐rights and constitutional rights. Unlike constitutional rights, proto‐rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto‐rights allows for various schemes of legal constitutional rights. Proto‐rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto‐rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

The prevailing view is that democratic procedures are unable to confer democratic legitimacy to decisions about democratic procedures. This paper examines this claim in detail and uses referendums on the inclusion of previously disenfranchised groups in the demos as a running example. The paper distinguishes between pure, imperfect and quasi-pure models of procedural democratic legitimacy and sub-versions of them. To various extents, each model does have the capacity to confer legitimacy to demos decisions under well-defined circumstances. (...) The paper argues that quasi-pure procedural legitimacy represents the most promising account of democratic legitimacy in cases where democratic procedures are the subject of collective decision-making. According to this model, the decision to revise the rules for membership in the demos is permissible by democratic standards if and only if the revision is not forbidden by democratic principles for inclusion. The point is that the range of alternatives that are not forbidden by democratic principles of inclusion are likely to be considerable due to vagueness of the principles themselves and/or them being subject to reasonable disagreement. The paper concludes with a discussion about the possibility of democratic legitimacy for democratic institutions not introduced as a result of democratic decision-making. (shrink)

The prevailing view is that democratic procedures are unable to confer democratic legitimacy to decisions about democratic procedures. This paper examines this claim in detail and uses referendums on the inclusion of previously disenfranchised groups in the demos as a running example. The paper distinguishes between pure, imperfect and quasi-pure models of procedural democratic legitimacy and sub-versions of them. To various extents, each model does have the capacity to confer legitimacy to demos decisions under well-defined circumstances. (...) The paper argues that quasi-pure procedural legitimacy represents the most promising account of democratic legitimacy in cases where democratic procedures are the subject of collective decision-making. According to this model, the decision to revise the rules for membership in the demos is permissible by democratic standards if and only if the revision is not forbidden by democratic principles for inclusion. The point is that the range of alternatives that are not forbidden by democratic principles of inclusion are likely to be considerable due to vagueness of the principles themselves and/or them being subject to reasonable disagreement. The paper concludes with a discussion about the possibility of democratic legitimacy for democratic institutions not introduced as a result of democratic decision-making. (shrink)

The public perception of decision‐making procedures as fair processes is a central means for establishing their legitimacy to make difficult resource allocation decisions. According to the ethical framework of accountability for reasonableness (A4R, hereafter), which specifies conditions for fair healthcare resource allocation, disagreements about what constitutes relevant considerations are a central threat to its perceived fairness. This article considers how an ethical principle grounded in the public memory of past traumatic events may become the topic of such disagreements. I (...) demonstrate this through an anthropological case study of a recent public de bate concerning an Israeli healthcare allocation committee (HAC, thereafter), which determines state subsidies for new medical technologies as part of Israel’s public healthcare system. Drawing upon ethnographic fieldwork about the HAC, I show how the public memory of Adolf Eichmann’s trial constitutes a bioethical problem for the committee’s legitimacy. Based on Arendt’s and Bauman’s writings that Nazi bureaucrats’ manner of “following orders” was an ethical transgression, some patients contended that the committee has a historical responsibility to question its strict adherence to bureaucratic procedures. Since the committee did not have a direct link to the events of the Holocaust, other considerations seemed to them more relevant. I then present an offer that can settle this disagreement and maintain the HAC’s legitimacy according to A4R. I conclude by discussing the contribution of empirical data to models of bioethical legitimacy. (shrink)

Machine learning algorithms are expected to improve referral decisions. In this article I discuss the legitimacy of deferring referral decisions in primary care to recommendations from such algorithms. The standard justification for introducing algorithmic decision procedures to make referral decisions is that they are more accurate than the available practitioners. The improvement in accuracy will ensure more efficient use of scarce health resources and improve patient care. In this article I introduce a proceduralist framework for discussing the legitimacy (...) of algorithmic referral decisions and I argue that in the context of referral decisions the legitimacy of an algorithmic decision procedure can be fully accounted for in terms of the instrumental values of accuracy and fairness. I end by considering how my discussion of procedural algorithmic legitimacy relates to the debate on algorithmic fairness. (shrink)

The reconstructive theory of the procedural legitimacy of modern law developed on the basis of the theory of discourse ethics has limited itself solely to the deontological, moral‐normative aspects of the validity claims of legal norms and judgments. However, teleological and axiological aspects are also intertwined with legal validity claims and with the procedures in which legal norms and judgments are produced. The discursive‐procedural concept of legitimacy seems to require as its support, instead of the theory (...) of discourse ethics, a general theory of practical discourses or, more generally, of rational collective will‐formation. (shrink)

Research on deliberative procedures uses normative concepts not only to justify the democratic legitimacy of these procedures but also as analytical tools to understand their empirical effects. This leads to a normativist bias in deliberation research. I argue that deliberative procedures should instead be regarded as a type of opinion-shaping social technology. I introduce a theoretical scheme that helps researchers analyze the interplay between formal and informal aspects of deliberative procedures. The usefulness of the scheme is shown in a (...) case study of the EuroPolis Deliberative Poll. (shrink)

In a globalizing world, governments are not always able or willing to regulate the social and environmental externalities of global business activities. Multi-stakeholder initiatives (MSI), defined as global institutions involving mainly corporations and civil society organizations, are one type of regulatory mechanism that tries to fill this gap by issuing soft law regulation. This conceptual paper examines the conditions of a legitimate transfer of regulatory power from traditional democratic nation-state processes to private regulatory schemes, such as MSIs. Democratic legitimacy (...) is typically concerned with input legitimacy (rule credibility, or the extent to which the regulations are perceived as justified) and output legitimacy (rule effectiveness, or the extent to which the rules effectively solve the issues). In this study, we identify MSI input legitimacy criteria (inclusion, procedural fairness, consensual orientation, and transparency) and those of MSI output legitimacy (rule coverage, efficacy, and enforcement), and discuss their implications for MSI democratic legitimacy. (shrink)

Recently, many comparativists and democratic theorists have argued that democracy is in imminent peril, even in countries that are thought to be its strongholds. But theorists like Andrew Gamble, Wolfgang Streeck, and David Runciman suggest that some democracies are too embedded to collapse. Instead, they argue these democracies are experiencing long-term structural crises. This article explains how this alternative kind of crisis works. It conceives of legitimacy crises as ‘chronic crises’ in which democratic procedures are contested even as the (...) democratic political system is affirmed. In these crises, democracies are threatened by distortion and deadlock rather than death. The article gives a precise account of chronic legitimacy crises. It treats legitimacy as a scalar concept, going beyond binary views where legitimacy is something a state either has or lacks. It distinguishes periods of chronic crisis from stable periods and from acute crises. It shows how chronic crises are distinctively about legitimacy. It carves out conceptual space for a different kind of legitimacy crisis, and it assists comparativists in thinking about how younger democracies differ from older ones. (shrink)

ABSTRACT:Partnerships between companies and NGOs have received considerable attention in CSR in the past years. However, the role of NGO legitimacy in such partnerships has thus far been neglected. We argue that NGOs assume a status as special stakeholders of corporations which act on behalf of the common good. This role requires a particular focus on their moral legitimacy. We introduce a conceptual framework for analysing the moral legitimacy of NGOs along three dimensions, building on the theory (...) of deliberative democracy. Against this background we outline three procedural characteristics which are essential for judging the legitimacy of NGOs as potential or actual partners of corporations. (shrink)

In professional settings, people often have diverse and competing conceptions of responsibility and of when it is fair to hold someone responsible. This may lead to undesirable gaps in the distribution of responsibilities. In this paper, a procedural model is developed for alleviating the tension between diverging responsibility conceptions. The model is based on the Rawlsian approach of wide reflective equilibrium and overlapping consensus. The model is applied to a technological project, which concerned the development of an in-house monitoring (...) system based on ambient technology. The development of this innovative technology raised questions among the technological researchers about its social acceptance and the way issues related to privacy and security should be addressed. The case is analyzed in terms of two procedural norms (reflective learning and inclusiveness), which are based on literature on policy and innovation networks. Analysis of the case shows that, in a pluralist setting, a procedural approach can be useful for encouraging discussion on the legitimacy of different responsibility conceptions and the question what a fair responsibility distribution amounts to. (shrink)

In a globalizing world, governments are not always able or willing to regulate the social and environmental externalities of global business activities. Multi-stakeholder initiatives (MSI), defined as global institutions involving mainly corporations and civil society organizations, are one type of regulatory mechanism that tries to fill this gap by issuing soft law regulation. This conceptual paper examines the conditions of a legitimate transfer of regulatory power from traditional democratic nation-state processes to private regulatory schemes, such as MSIs. Democratic legitimacy (...) is typically concerned with input legitimacy (rule credibility, or the extent to which the regulations are perceived as justified) and output legitimacy (rule effectiveness, or the extent to which the rules effectively solve the issues). In this study, we identify MSI input legitimacy criteria (inclusion, procedural fairness, consensual orientation, and transparency) and those of MSI output legitimacy (rule coverage, efficacy, and enforcement), and discuss their implications for MSI democratic legitimacy. (shrink)

This paper claims that the intuitive and widespread legitimating power of majority rule (MR) arises from the link between majority rule and the principle of equality of political opportunity. The egalitarian character of MR is established by exploring “puzzles” in democratic theory, such as the insensitivity of democratic voting procedures to unequal intensity of citizens' preferences, and the relationship between the principle of unanimity (sometimes thought better to respect citizens' equality) and MR. Special attention is directed to the relationship between (...) political equality and equality in the outcomes of political decisions: The claim is made that the language of equal political opportunity captures well the idea of equal political influence, in the circumstance of disagreement about what is required to achieve equal treatment through the outcomes of political decisions. (shrink)

In 2017, Ukraine’s Parliament passed legislation establishing a single health benefit package for the entire population called the Programme of Medical Guarantees,‎ financed through general taxes and administered by a single national purchasing agency. This legislation was in line with key principles for financing universal health coverage. However, health professionals and some policymakers have been critical of elements of the reform, including its reliance on general taxes as the source of funding. Using qualitative methods and drawing on deliberative democratic theory (...) and criteria for procedural fairness, this study argues that the acceptance and sustainability of these reforms could have been strengthened by making the decision-making process fairer. It suggests that three factors limited the extent of stakeholders’ participation in this process: first, a perception among reformers that fast-paced decision-making was required because there was only a short political window for much needed reforms; second, a lack of trust among reformers in the motives, representativeness, and knowledge of some stakeholders; and third, an under-appreciation of the importance of dialogic engagement with the public. These findings highlight a profound challenge for policymakers. In retrospect, some of those involved in the reform’s design and implementation believe that a more meaningful engagement with the public and stakeholders who opposed the reform might have strengthened its legitimacy and durability. At the same time, the study shows how difficult it is to have an inclusive process in settings where some actors may be driven by unconstrained self-interest or lack the capacity to be representative or knowledgeable interlocutors. It suggests that investments in deliberative capital (the attitudes and behaviours that facilitate good deliberation) and in civil society capacity may help overcome this difficulty. (shrink)

The use of Genetic Modification in food is the subject of deep political disagreement. Much of the disagreement involves different perceptions of the kinds of risks posed by pursuing GM food, and how these are to be tolerated and regulated. As a result, a primary institutional site of GM food politics is regulatory agencies tasked with risk assessment and regulation. Locating GM food politics in administrative areas of governance regimes produces unique challenges of democratic legitimacy, conventionally secured through legislative (...) channels. In particular, debate over the ends of a society’s policy on GM food inevitably continues in these institutional locations, despite conventional instrumental understandings of administrative legitimacy resting on effective application of ‘ends-means’ norms. This paper assesses the two major regulatory frameworks currently applied to GM food—the ‘precautious’ and ‘proof of harm’ approaches—and presents their respective limits in securing the procedural and substantive dimensions of the legitimacy of administrative deference in democratic societies. On the basis of these criticisms, a synthesized and emergent approach—‘experiential precaution’—is presented as having the resources to deepen the legitimacy of risk governance institutions in the case of GM food. It is characterized by deepened participatory practices of negotiated rulemaking and inclusion of further substantive requirements in approval criteria. (shrink)

This book examines the relationship between the idea of legitimacy of law in a democratic system and equality, conceived in a tripartite sense: political, legal, and social. Exploring the constituent elements of the legal philosophy underlying concepts of legitimacy, this book seeks to demonstrate how a conception of democratic legitimacy is necessary for understanding and reconciling equality and political legitimacy by tracing and examining the conceptions of equality in political, legal, and social dimensions. -/- In the (...) sphere of political equality this book argues that the best construction of equality in a democratic system - which resonates with the legitimizing function of majority rule - is that of equality of political opportunity. It is largely procedural, but those procedures represent important substantive values built into a majoritarian system. In the sphere of legal equality it argues that a plausible conception of non-discrimination can be constructed through a "reflective equilibrium" process, and should reject a thoughtless assumption that the presence of some particular criteria of differentiations necessarily taints a legal classification as discriminatory. Finally, the chapters on social equality explore, in some detail, the currently influential, and presumptively attractive, "luck egalitarianism": the idea that social equality calls for neutralizing the disparate effects of bad brute luck upon a person's position in society. (shrink)

The purpose of this study was to extend the knowledge about why procedural justice (PJ) has behavioral implications within organizations. Since prior studies show that PJ leads to legitimacy, the author suggests that, when formal regulations are unfairly implemented, they lose their validity or efficacy (becoming deactivated even if they are formally still in force). This "rule deactivation," in turn, leads to two proposed destructive work behaviors, namely, workplace deviance and decreased citizenship behaviors (OCBs). The results support this (...) mediating role of PJD, thus suggesting that it forms part of the generative mechanism through which unfair procedures influence (un) ethical behavior within organizations. The author ends the article by discussing behavioral ethics and managerial implications as well as suggestions for future research. (shrink)

An often overlooked tension in liberal theory turns on its commitment to procedural accounts of legitimacy on the one hand, and to the robust protection of the right of citizens to dissent on the other. To the extent that one evaluates legitimate decision-making on the basis of the procedures that bear on it, determining how extra-procedural expressions of dissent fit into the picture becomes a complex undertaking. This is especially true if one accepts that protecting extra-procedural (...) expressions of dissent is itself foundational to the overall legitimacy of the state. My aim in this paper is to explore some of the implications that follow from this tension. The paper proceeds in two parts. In the first part, I review the political grounds that support a protection on dissent. By drawing on its republican foundations, I argue that the functional role that the right to dissent serves in complex political communities is intimately connected to concerns over legitimacy. I claim that for the right to perform its function successfully, protections must be placed on both procedural and extra-procedural forms of dissent. The second part of the paper issues a direct challenge to procedural accounts of legitimacy. If a protection on citizen dissent is vital to legitimating government action, and if that protection necessarily extends to both procedural and extra-procedural forms of dissent, it follows that legitimacy cannot be captured by procedure alone—even procedures that secure the fair and equal participation by all affected parties. (shrink)

A critical element in building stronger health systems involves strengthening good governance to build capacity for transparent and fair health planning and priority setting. Over the past 20 years, the ethical framework Accountability for Reasonableness has been a prominent conceptual guide in strengthening fair and legitimate processes of health decision-making. While many of the principles embedded within the framework are congruent with Western conceptualizations of what constitutes procedural fairness, there is a paucity in the literature that captures the degree (...) of resonance between these principles and the views of decision makers from non-Western settings; particularly in Africa, where many countries have only recently, within the last 20-30 years, become more democratic. This paper contributes to the ethics literature by examining how Ethiopian decision makers conceptualize fair and legitimate health decision-making, and reflects on the degree of conceptual resonance between these views and the principles embedded in A4R. A qualitative case study approach from three districts in Ethiopia was undertaken. Fifty-eight decision makers from district, regional, zonal, and national levels were interviewed to describe their conceptualization of fairness and legitimacy in the district health planning process. Findings revealed that Ethiopians have a broad conception of fairness and legitimacy that while congruent with procedural justice, also aligned with principles of distributive and organizational justice. Researchers and practitioners seeking to strengthen procedural fairness in health priority setting must therefore recognize the significance of other philosophical dimensions influencing how fairness and legitimacy of health decision-making are constructed within the Ethiopian setting. (shrink)

After the UN Guiding Principles on Business and Human Rights were adopted in 2011, an international treaty has been being negotiated since 2014. The two instruments reveal similarities and also conflicts regarding the adequate organization of the global economy based on human rights. The focus in this article will be on the processes leading to these instruments, because they themselves mirror different understandings of governance in the field of business and human rights as well as the struggle over the power (...) of definition and legitimacy. The UNGPs were developed on the basis of global multi-stakeholder consultations, underlining legitimacy through broad inclusion. There are varying judgements as to the success of this approach. The process towards the treaty follows the traditional path of negotiations at UN level. These negotiations reveal a struggle for recognition of the legitimacy of the process itself. Both procedures have shortcomings with regard to legitimacy and show the need for a revision concerning the inclusion of stakeholders. The complementarity of a soft and hard law instrument may enhance the creation of a level playing field in the global economy, thereby strengthening human rights. (shrink)

There are two bodies of literature, one offering theories of the legitimacy of domestic institutions like states, another offering theories of the legitimacy of international institutions like the IMF. Accounts of domestic legitimacy stress the importance of democratic procedure, while few to no theorists make democracy a necessary condition for the legitimacy of international institutions. In this paper, I ask whether this asymmetry can be defended. Is there a unified higher-order theory which can explain why (...) class='Hi'>legitimacy requires democracy in the domestic context, but not in the international context? I argue that no proceduralist higher-order theory succeeds, and that we need to look for other solutions. (shrink)

For many contemporary liberal political philosophers the appropriate response to the facts of pluralism is the requirement of public reasonableness, namely that individuals should be able to offer to their fellow citizens reasons for their political actions that can generally be accepted.This article finds wanting two possible arguments for such a requirement: one from a liberal principle of legitimacy and the other from a natural duty of political civility. A respect in which conversational restraint in the face of political (...) agreement involves incivility is sketched.The proceduralist view which commends substantive disagreement within agreement on procedures is briefly outlined, as is the possible role for civic virtue on this view. (shrink)

In modern democracies, moral experts play an increasingly important role in law-making. Apart from the question of which competences characterize moral experts, their influence on the legitimacy of democratic procedures must be discussed. On the one hand, the contribution of moral experts promises to improve the quality of decision making. On the other hand, however, moral experts cannot claim to represent the will of the people. In this essay, at first a concept of the moral expert will be sketched (...) which does without the assumption of a privileged access to 'moral truths'. Then a procedural understanding of democratic legitimacy without epistemic components will be defended. Finally there will be a distinction between the purely consultative and the quasi-legislative tasks of ethics committees. Whereas councelling by moral experts does not influence the legitimacy of democratic procedures, giving them quasilegislative functions is connected to risks in this respect. (shrink)

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic (...) institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation. (shrink)

William Smith’s recent article criticises the so-called orthodox approaches to the normative analysis of healthcare resource allocation, associated to the requirement that decision-makers should abide by strictly procedural principles of legitimacy defining a deliberative democratic process. Much of the appeal of Smith’s argument goes down to his awareness of real-world processes and, in particular, to the large gap he identifies between well-led democratic deliberation and the messiness of the process through which the intuitively legitimate Affordable Care Act was (...) created. This reply aims to demonstrate that the ACA provides no counterexample to orthodox views, seizing this opportunity to explore the specific space that the procedural principles populating orthodox accounts are meant to regulate. Neither general questions of healthcare justice concerning, for example, universal access nor, relatedly, the activity of elected politicians falls within the natural scope of application of such principles, revealing a much more complex picture of the interactions between justice and legitimacy as well as substantive and procedural considerations than acknowledged by Smith. In the end, orthodox accounts of healthcare resource allocation turn out to provide a precious fund of theoretical resources for the normative study of administrators, which might be useful well beyond bioethics and health policy. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to (...) improve the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)