Academic journal article Harvard Law Review

Legitimacy and Obedience

Academic journal article Harvard Law Review

Legitimacy and Obedience

Article excerpt

Perhaps we should just stop talking about legitimacy altogether. Why do we even need to use the word, at least in discussions of constitutional law? That is one of the questions raised by Richard Fallon's thoughtful and exceptionally illuminating article. (1) Why not just talk about moral right and wrong, or about legal right and wrong, or about whether a particular law or legal system is generally accepted by a population? Using the term "legitimacy" only adds the potential for confusion; why not dispense with it?

The answer is that discussions of "legitimacy" do add one element to debates over constitutional issues. To condemn something as illegitimate --a statute, a Supreme Court decision, a President's claim to have won an election, or something else--is, I think, implicitly to threaten defiance. It is to suggest that the government should, in some respect, not be obeyed. There are mistaken decisions, lawless decisions, morally wrong decisions. Those are all familiar forms of criticism. Calling a decision "illegitimate" adds the suggestion that the decision is mistaken, or lawless, or immoral, in a way or to a degree that raises a question about whether it should be obeyed. For me, this is one of the principal lessons of Professor Fallon's article.

Disobedience and defiance, in this respect, are matters of degree in the same way that, as Professor Fallon notes, the acceptance of government authority is a matter of degree. (2) To say that a President was not legitimately elected is not necessarily to assert the right to disregard a bill that that President has signed into law or a lawful military order that the President has issued as Commander-in-Chief. Rather, the claim of illegitimacy asserts that in some respect the President should not be accorded the deference he would otherwise receive: his proposed appointees will be scrutinized more closely; his legislative initiatives will encounter more hostility; he will not be viewed as having a mandate to carry out an extensive program of policy initiatives. The same is true for the assertion that a Supreme Court decision is illegitimate. It does not necessarily amount to an assertion that the parties to the case can ignore the Court's ruling. But it does mean that such a decision--unlike, for example, a decision that is simply legally wrong, even clearly legally wrong--should have less weight as a precedent in court and should have a diminished role in shaping the judgments that other branches of government make about the lawfulness of their actions. (3)

Professor Fallon's account is descriptive rather than prescriptive; he is concerned with how the term "legitimacy" is actually used, rather than with how the term should be used. (4) For that reason, his article, as I understand it, does not take a position on whether the term "legitimacy" is best confined to the uses I have suggested. But his precise and accurate typology helps demonstrate why the term should be used only in more limited ways. Often, in the instances Professor Fallon describes, the use of the term obscures the claim that is being made. In addition, it is not clear why the same term should be used for three different kinds of claims. And Professor Fallon points out that the various uses of "legitimacy" share a "concern[] with the necessary, sufficient, or morally justifiable conditions for the exercise of governmental authority." (5) My suggestion is that this last insight can be the basis for a specific, prescriptive definition: the term "illegitimacy" should be reserved for that subset of wrong actions to which defiance, of some form, is a proper response.

I. THREE KINDS OF LEGITIMACY?

Professor Fallon identifies three basic kinds of legitimacy: moral, legal, and sociological. To oversimplify his careful account, a government action--a Supreme Court decision, for example--is morally illegitimate if it is morally wrong; more precisely, a claim that a decision is morally illegitimate is a claim that it is outside the bounds of reasonable moral disagreement. …

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