## 1. Descriptive and Normative Concepts of Political Legitimacy



If legitimacy is interpreted descriptively, it refers to
people's beliefs about political authority and, sometimes,
political obligations. In his sociology, Max Weber put forward a very
influential account of legitimacy that excludes any recourse to
normative criteria (Mommsen 1989: 20, but see Greene 2017 for an
alternative reading). According to Weber, that a political regime is
legitimate means that its participants have certain beliefs or faith
("Legitimitatsglaube") in regard to it: "the
basis of every system of authority, and correspondingly of every kind
of willingness to obey, is a belief, a belief by virtue of which
persons exercising authority are lent prestige" (Weber 1964:
382). As is well known, Weber distinguishes among three main sources
of legitimacy--understood as the acceptance both of authority and
of the need to obey its commands. People may have faith in a
particular political or social order because it has been there for a
long time (tradition), because they have faith in the rulers
(charisma), or because they trust its legality--specifically the
rationality of the rule of law (Weber 2009 [1918]; 1964). Weber
identifies legitimacy as an important explanatory category for social
science, because faith in a particular social order produces social
regularities that are more stable than those that result from the
pursuit of self-interest or from habitual rule-following (Weber 1964:
124).



In contrast to Weber's descriptive concept, the normative
concept of political legitimacy refers to some benchmark of
acceptability or justification of political power or authority
and--possibly--obligation. On one view, held by John Rawls
(1993) and Arthur Ripstein (2004), for example, legitimacy refers, in
the first instance, to the justification of coercive political power.
Whether a political body such as a state is legitimate and whether
citizens have political obligations towards it depends on whether the
coercive political power that the state exercises is justified. On a
widely held alternative view, legitimacy is linked to the
justification of political authority. On this view, political bodies
such as states may be effective, or *de facto*, authorities,
without being legitimate. They claim the right to rule and to create
obligations to be obeyed, and as long as these claims are met with
sufficient acquiescence, they are authoritative. Legitimate authority,
on this view, differs from merely effective or *de facto*
authority in that it actually holds the right to rule and creates
political obligations (e.g., Raz 1986). On some views, even legitimate
authority is not sufficient to create political obligations. The
thought is that a political authority (such as a state) may be
permitted to issue commands that citizens are not obligated to obey
(Dworkin 1986: 191). Based on a view of this sort, some have argued
that legitimate political authority only gives rise to political
obligations if additional normative conditions are satisfied (e.g.
Wellman 1996; Edmundson 1998; Buchanan 2002).



There is sometimes a tendency in the literature to equate the
normative concept of legitimacy with justice. Some explicitly define
legitimacy as a criterion of minimal justice (e.g., Hampton 1998;
Buchanan 2002). Someone might claim, for example, that while political
institutions such as states are often unjust, only a just state is
morally acceptable and legitimate in this sense. Unfortunately, there
is sometimes also a tendency to blur the distinction between the two
concepts, and a lot of confusion arises from that. Rawls (1993, 1995)
clearly distinguishes between the two concepts. In his view, while
justice and legitimacy are related--they draw on the same set of
political values--they have different domains and legitimacy
makes weaker demands than justice (1993: 225; 1995: 175ff.). Political
institutions may be legitimate but unjust, but the converse is not
possible: just political institutions are necessarily legitimate (see
also Langvatn 2016 on this). On other views, legitimacy and justice
have different normative foundations (e.g., Simmons 2001; Pettit 2012).
According to Pettit (2012: 130ff), a state is just if it imposes a
social order that promotes freedom as non-domination for all its
citizens. It is legitimate if it imposes a social order in an
appropriate way. A state that fails to impose a social order in an
appropriate way, however just the social order may be, is
illegitimate. Vice versa, a legitimate state may fail to impose a just
social order.



Realist political theorists criticize any tendency to blur the
distinction between legitimacy and justice (e.g., Rossi and Sleat
2014). They diagnose it as a sign of misplaced "political
moralism" (Williams 2005; Horton 2010), or, relatedly, as a
misleading interpretation of political theory as a branch of applied
ethics (e.g., Honig 1993). But they also want to carve out an
alternative to a purely descriptive interpretation of legitimacy.
Bernard Williams's claim (2005: 4ff) that political institutions
are subject to a "basic legitimation demand" has been very
influential in this regard. According to Williams, the first political
question is how a state provides basic political goods such as
security and stability and the conditions for cooperation. That it
provides these goods is a necessary requirement for legitimacy, but it
is not sufficient. A state is also under the normative expectation to
justify how it provides these goods. That normative expectation is the
distinctively political basic legitimation demand.



By interpreting the concept of political legitimacy along those lines,
political realists lend support to those who have questioned a sharp
distinction between the descriptive and normative concepts of
legitimacy (e.g., Habermas 1979; Beetham 1991; Horton 2012). The
objection to a strictly normative concept of legitimacy is that it is
of only limited use in understanding actual processes of legitimation.
The charge is that philosophers tend to focus too much on the general
conditions necessary for the justification of political institutions
but neglect the historical actualization of the justificatory process.
In Jurgen Habermas' words (Habermas 1979: 205):
"Every general theory of justification remains peculiarly
abstract in relation to the historical forms of legitimate domination.
... Is there an alternative to this historical injustice of
general theories, on the one hand, and the standardlessness of mere
historical understanding, on the other?" The objection to a
purely descriptive concept such as Weber's is that it neglects
people's second order beliefs about legitimacy--their
beliefs, not just about the actual legitimacy of a particular
political institution, but about the justifiability of this
institution, i.e. about what is necessary for legitimacy. According to
Beetham, a "power relationship is not legitimate because people
believe in its legitimacy, but because it can be *justified in
terms of* their beliefs" (Beetham 1991: 11). As Tommie
Shelby (2007) has highlighted, from the point of view of oppressed
minorities political institutions often lack legitimacy because they
(rightly) perceive the social order to be unjust.



A key claim of political realism is that while legitimacy is a
normative property of political institutions or decisions, its
normativity is not (just) moral (e.g., Rossi 2012, Sleat 2014). In
support of this claim, some realists argue that the basic legitimation
demand can't be satisfied just by appeal to moral arguments, for
example because political processes are necessary to forge political
agreements (Stears 2007). Others focus on the role of epistemic
normativity (see the discussion in Burelli and Destri 2022). But, as
Leader Maynard and Worsnip (2018) ask, is there a distinct political
normativity that political realists could resort to? Or does normative
political philosophy have resources to address the realists'
worries? A possible reply to these questions is that realist political
theory is less concerned with the nature of normativity than with
drawing attention to neglected topics in political theory (Baderin
2014; Jubb 2019). But this raises the further question whether there
is a unified project at the core of political realism, or whether it
is better seen as the intersection of different projects motivated by
a range of meta-normative, normative, and political concerns.


## 2. The Function of Political Legitimacy



This section lays out the different ways in which legitimacy,
understood normatively, can be seen as relating to political
authority, coercion, and political obligations.


### 2.1 Legitimacy and the Justification of Political Authority



The normative concept of political legitimacy is often seen as related
to the justification of authority. The main function of political
legitimacy, on this interpretation, is to explain the difference
between merely effective or *de facto* authority and legitimate
authority.



John Locke put forward such an interpretation of legitimacy.
Locke's starting-point is a state of nature in which all
individuals are equally free to act within the constraints of natural
law and no individual is subject to the will of another. As Rawls
(2007: 129) characterizes Locke's understanding of the state of
nature, it is "a state of equal right, all being kings."
Natural law, while manifest in the state of nature, is not
sufficiently specific to rule a society and cannot enforce itself when
violated, however. The solution to this problem is a social contract
that transfers political authority to a civil state that can realize
and secure the natural law. According to Locke, and contrary to his
predecessor Thomas Hobbes, the social contract thus does not create
authority. Political authority is embodied in individuals and
pre-exists in the state of nature. The social contract transfers the
authority they each enjoy in the state of nature to a particular
political body.



While political authority thus pre-exists in the state of nature,
legitimacy is a concept that is specific to the civil state. Because
the criterion of legitimacy that Locke proposes is historical,
however, what counts as legitimate authority remains connected to the
state of nature. The legitimacy of political authority in the civil
state depends, according to Locke, on whether the transfer of
authority has happened in the right way. Whether the transfer has
happened in the right way depends on individuals' consent:
"no one can be put out of this estate and subjected to the
political power of another without his own consent" (Locke 1980
[1690]: 52). Anyone who has given their express or tacit consent to
the social contract is bound to obey a state's laws (Locke 1980
[1690]: 63). Locke understands the consent criterion to apply not just
to the original institutionalization of a political
authority--what Rawls (2007: 124) calls "originating
consent". It also applies to the ongoing evaluation of the
performance of a political regime--Rawls (2007: 124) calls this
"joining consent".



Although Locke emphasises consent, consent is not, however, sufficient
for legitimate authority because an authority that suspends the
natural law is necessarily illegitimate (e.g., Simmons 1976). On some
interpretations of Locke (e.g., Pitkin 1965), consent is not even
necessary for legitimate political authority; the absence of consent
is only a marker of illegitimacy. Whether an actual political regime
respects the constraints of the natural law is thus at least one
factor that determines its legitimacy.



This criterion of legitimacy is negative: it offers an account of when
effective authority ceases to be legitimate. When a political
authority fails to secure consent or oversteps the boundaries of the
natural law, it ceases to be legitimate and, therefore, there is no
longer an obligation to obey its commands. For Locke--unlike for
Hobbes--political authority can thus not be absolute.



The contemporary literature has developed Locke's ideas in
several ways. John Simmons (2001) uses them to argue that we should
distinguish between the moral justification of states in general and
the political legitimacy of actual states. We will come back to this
point in section 3.2. Joseph Raz links legitimacy to the justification
of political authority. According to Raz, political authority is just
a special case of the more general concept of authority (1986, 1995,
2006). He defines authority in relation to a claim--of a person
or an agency--to generate what he calls pre-emptive reasons. Such
reasons replace other reasons for action that people might have. For
example, if a teacher asks her students to do some homework, she
expects her say-so to give the students reason to do the homework.



Authority is effective if it gets people to act on the reasons it
generates. The difference between effective and legitimate authority,
on Raz' view, is that the former merely purports to change the
reasons that apply to others, while legitimate authority actually has
the capacity to change these reasons. Legitimate authority satisfies a
pre-emption thesis: "The fact that an authority requires
performance of an action is a reason for its performance which is not
to be added to all other relevant reasons when assessing what to do,
but should exclude and take the place of some of them" (Raz
1986: 46). (There are limits to what even a legitimate authority can
rightfully order others to do, which is why it does not necessarily
replace all relevant reasons.)



When is effective or *de facto* authority legitimate? In other
words, what determines whether the pre-emption thesis is satisfied?
Raz' answer is captured in two further theses. The
"dependence thesis" states that the justification of
political authority depends on the normative reasons that apply to
those under its rule directly, independently of the authority's
directives. Building on the dependence thesis, the "normal
justification thesis" then states that political authority is
justified if it enables those subject to it to better comply with the
reasons that apply to them anyway. In full, the normal justification
thesis says: "The normal way to establish that a person has
authority over another involves showing that the alleged subject is
likely to better comply with the reasons which apply to him (other
than the alleged authoritative directive) if he accepts the directives
of the alleged authority as authoritatively binding and tries to
follow them, rather than by trying to follow the reasons which apply
to him directly" (Raz 1986: 53). The normal justification thesis
explains why those governed by a legitimate authority ought to treat
its directives as binding. It thus follows as a corollary of the
normal justification thesis that such an authority generates a duty to
be obeyed. Raz calls his conception the "service
conception" of authority (1986: 56). Note that even though
legitimate authority is defined as a special case of effective
authority, only the former is appropriately described as a serving its
subjects. Illegitimate--but effective--authority does not
serve those it aims to govern, although it may purport to do so.



William Edmundson formulates this way of linking authority and
legitimacy via a condition he calls the warranty thesis: "If
being an *X* entails claiming to *F*, then being a
*legitimate* *X* entails *truly* claiming to
*F*." (Edmundson 1998: 39). Being an *X* here
stands for "a state", or "an authority". And
"to *F*" stands for "to create a duty to be
obeyed", for example. The idea expressed by the warranty thesis
is that legitimacy morally justifies an independently existing
authority such that the claims of the authority become moral
obligations.


### 2.2 Justifying Power and Coercion



Those who link political legitimacy to the problem of justifying
authority tend to think of political coercion as only a means that
legitimate states may use to secure their authority. As Leslie Green
puts it: "Coercion threats provide secondary, reinforcing
motivation when the political order fails in its primary normative
technique of authoritative guidance" (Green 1988: 75). According
to a second important view, held by Rawls (1993), for example, the
main function of legitimacy is precisely to justify coercive power.
(For an excellent discussion of the two interpretations of legitimacy
and a defense of the coercion-based interpretation, see Ripstein 2004;
see also Hampton 1998.) On coercion-based interpretations, the main
problem that a conception of legitimacy aims to solve is how to
distinguish the rightful use of political power from mere coercion.
Whether a political body such as a state is legitimate and whether
citizens have political obligations towards it depends, on this view
on whether the coercive political power that the state exercises is
justified. Again, there are different ways in which this idea might be
understood.



In Thomas Hobbes' influential account, political authority is
created by the social contract. In the state of nature,
everyone's self-preservation is under threat, and this makes it
rational for all to consent to a covenant that authorizes a sovereign
who can guarantee their protection and to transfer their rights to
this sovereign--an individual or a group of individuals. When
there is no such sovereign, one may be created by a
covenant--Hobbes calls this "sovereignty by
institution". But political authority may also be established by
the promise of all to obey a threatening power ("sovereignty by
acquisition"; see *Leviathan*, chapter 17). Both manners
of creating a sovereign are equally legitimate. And political
authority will be legitimate as long as the sovereign ensures the
protection of the citizens, as Hobbes believes that the natural right
to self-preservation cannot be relinquished (*Leviathan*,
chapter 21). Beyond that, however, there can be no further questions
about the legitimacy of the sovereign. In particular, there is no
distinction between effective authority and legitimate authority in
Hobbes' thought. It might even be argued that Hobbes fails to
distinguish between legitimate authority and the mere exercise of
power (Korsgaard 1997: 29; see chapter 30 of *Leviathan*,
however, for an account of the quality of the sovereign's
rule).



Another way in which the relation between legitimacy and the creation
of authority may be understood is that the attempt to rule without
legitimacy is an attempt to exercise coercive power--not
authority. Such a view can be found in Jean-Jacques Rousseau's
work. Legitimacy, for Rousseau, justifies the state's exercise
of coercive power and creates an obligation to obey. Rousseau
contrasts a legitimate social order with a system of rules that is
merely the expression of power. Coercive power is primarily a feature
of the civil state. While there are some forms of coercive power even
in the state of nature--for example the power of parents over
their children--Rousseau assumes that harmful coercive power
arises primarily in the civil state and that this creates the problem
of legitimacy. In the first chapter of the first book of *On
the* *Social Contract* he remarks that while "[m]an
is born free", the civil state he observes makes everyone a
slave. Rousseau's main question is under what conditions a civil
state, which uses coercive power to back up its laws, can be thought
of as freeing citizens from this serfdom. Such a state would be
legitimate. As he puts it in the opening sentence of the *Social
Contract*, "I want to inquire whether there can be some
legitimate and sure rule of administration in the civil order, taking
men as they are and laws as they might be."



Rousseau's account of legitimacy is importantly different from
Locke's in that Rousseau does not attach normativity to the
process through which a civil state emerges from the state of nature.
Legitimate political authority is created by convention, reached
within the civil state. Specifically, Rousseau suggests that
legitimacy arises from the democratic justification of the laws of the
civil state (*Social Contract* I:6; cf. section 3.3.
below).



For Immanuel Kant, as for Hobbes, political authority is created by
the establishment of political institutions in the civil state. It
does not pre-exist in individuals in the state of nature. What exists
in the pre-civil social state, according to Kant, is the moral
authority of each individual qua rational being and a moral obligation
to form a civil state. Establishing a civil state is "in itself
an end (that each *ought to have*)" (Kant, *Theory and
Practice* 8:289; see also *Perpetual Peace*, Appendix I).
Kant regards the civil state as a necessary first step toward a moral
order (the "ethical commonwealth"). It helps people
conform to certain rules by eliminating what today would be called the
free-riding problem or the problem of partial compliance. By creating
a coercive order of public legal justice, "a great step is taken
toward morality (though it is not yet a moral step), toward being
attached to this concept of duty even for its own sake" (Kant,
*Perpetual Peace* 8:376, notes to Appendix I; see also Riley
1982: 129*f*).



The civil state, according to Kant, establishes the rights necessary
to secure equal freedom. Unlike for Locke and his contemporary
followers, however, coercive power is not a secondary feature of the
civil state, necessary to back up laws. According to Kant, coercion is
part of the idea of rights. The thought can be explained as follows.
Coercion is defined as a restriction of the freedom to pursue
one's own ends. Any right of a person--independently of
whether it is respected or has been violated--implies a
restriction for others. (cf. Kant, *Theory and Practice*, Part
2; Ripstein 2004: 8; Flikschuh 2008: 389f). Coercion, in this view, is
thus not merely a means for the civil state to enforce rights as
defenders of an authority-based concept of legitimacy claim. Instead,
according to Kant, it is constitutive of the civil state. This
understanding of rights links Kant's conception of legitimacy to
the justification of coercion.



Legitimacy, for Kant, depends on a particular interpretation of the
social contract. For Kant, the social contract which establishes the
civil state is not an actual event. He accepts David Hume's
objection to Locke that the civil state is often established in an act
of violence (Hume "Of the Original Contract"). Kant
invokes the social contract, instead, as the test "of any public
law's conformity with right" (Kant *Theory and
Practice* 8:294). The criterion is the following: each law should
be such that all individuals could have consented to it. The social
contract, according to Kant, is thus a hypothetical thought
experiment, meant to capture an idea of public reason. As such, it
sets the standard for what counts as legitimate political authority.
Because of his particular interpretation of the social contract, Kant
is not a social contract theorist in the strict sense. The idea of a
contract is nevertheless relevant for his understanding of legitimacy.
(On the difference between voluntaristic and rationalistic strands in
liberalism, see Waldron 1987.)



Kant, unlike Hobbes, recognizes the difference between legitimate and
effective authority. For the head of the civil state is under an
obligation to obey public reason and to enact only laws to which all
individuals could consent. If he violates this obligation, however, he
still holds authority, even if his authority ceases to be legitimate.
This view is best explained in relation to Kant's often
criticized position on the right to revolution. Kant famously denied
that there is a right to revolution (Kant, *Perpetual Peace*,
Appendix II; for a recent discussion, see Flikschuh 2008). Kant
stresses that while "a people"--as united in the
civil state--is sovereign, its individual members are under the
obligation to obey the head of the state thus established. This
obligation is such that it is incompatible with a right to revolution.
Kant offers a transcendental argument for his position (Kant
*Perpetual Peace*, Appendix II; Arendt 1992). A right to
revolution would be in contradiction with the idea that individuals
are bound by public law, but without the idea of citizens being bound
by public law, there cannot be a civil state--only anarchy. As
mentioned earlier, however, there is a duty to establish a civil
state. Kant's position implies that the obligation of
individuals to obey a head of state is not conditioned upon the
ruler's performance. In particular, the obligation to obey does
not cease when the laws are unjust.



Kant's position on the right to revolution may suggest that he
regards political authority as similarly absolute as Hobbes. But Kant
stresses that the head of state is bound by the commands of public
reason. This is manifest in his insistence on freedom of the pen:
"a citizen must have, with the approval of the ruler himself,
the authorization to make known publicly his opinions about what it is
in the ruler's arrangements that seems to him to be a wrong
against the commonwealth" (Kant *Theory and Practice*
8:304). While there is no right to revolution, political authority is
only legitimate if the head of state respects the social contract. But
political obligations arise even from illegitimate authority. If the
head of state acts in violation of the social contract and hence of
public reason, for example by restricting citizens' freedom of
political criticism, citizens are still obligated to obey.



In 2004, Ripstein argued that much of the contemporary literature on
political legitimacy has been dominated by a focus on the
justification of authority, rather than coercive political power
(Ripstein 2004). In the literature since then, it looks as if the
tables are turning, especially if one considers the debates on
international and global legitimacy (section 5). But prominent earlier
coercion-based accounts include those by Nagel (1987) and by
contemporary Kantians such as Rawls and Habermas (to be discussed in
sections 3.3. and 4.3., respectively).



Let me briefly mention other important coercion-based interpretations.
Jean Hampton (1998; drawing on Anscombe 1981) offers an elegant
contemporary explication of Hobbes' view. According to her,
political authority "is invented by a group of people who
perceive that this kind of special authority as necessary for the
collective solution of certain problems of interaction in their
territory and whose process of state creation essentially involves
designing the content and structure of that authority so that it meets
what they take to be their needs" (Hampton 1998: 77). Her theory
links the authority of the state to its ability to enforce a solution
to coordination and cooperation problems. Coercion is the necessary
feature that enables the state to provide an effective solution to
these problems, and the entitlement to use coercion is what
constitutes the authority of the state. The entitlement to use
coercion distinguishes such minimally legitimate political authority
from a mere use of power. Hampton draws a further distinction between
minimal legitimacy and what she calls full moral legitimacy, which
obtains when political authority is just.



Buchanan (2002) also argues that legitimacy is concerned with the
justification of coercive power. Buchanan points out that this makes
legitimacy a more fundamental normative concept than authority. Like
Hampton, he advocates a moralized interpretation of legitimacy.
According to him, "an entity has political legitimacy if and
only if it is morally justified in wielding political power"
(2002: 689). Political authority, in his approach, obtains if an
entity is legitimate in this sense and if some further conditions,
relating to political obligation, are met (2002: 691). Anna Stilz
(2009) offers a coercion-centered account of state legitimacy that
draws on both Kant and Rousseau.


### 2.3 Political Legitimacy and Political Obligations



Historically speaking, the dominant view has been that legitimate
political authority entails political obligations. Locke, for example,
writes: "every man, by consenting with others to make one body
politic under one government, puts himself under an obligation to
every one of that society to submit to the determination of the
majority, and to be concluded by it; or else this original compact,
whereby he with others incorporates into one society, would signify
nothing, and be no compact if he be left free and under no other ties
than he was in before in the state of nature" (Locke 2009
[1690]: 52f).



While this is still the view many hold, not all do. Some take the
question of what constitutes legitimate authority to be distinct from
the question of what political obligations people have. Ronald Dworkin
(1986: 191) treats political obligations as a fundamental normative
concept in its own right. What he calls "associative
obligations" arise, not from legitimate political authority, but
directly from membership in a political community. (For a critical
discussion of this account, see Simmons 2001; Wellman 1996.)



Arthur Applbaum (2019) offers a conceptual argument to challenge the
view that legitimate political authority entails an obligation to
obey. Applbaum grants that legitimate political authority has the
capacity to change the normative status of those under its rule, as
Raz (1986), for example, has influentially argued, and that this
capacity should be interpreted as a moral power in Hohfeld's
sense, not as a claim right to rule. But, Applbaum argues, Hohfeldian
powers, unlike rights, are not correlated with duties; they are
correlated with liabilities. On Applbaum's view, legitimate
political authority thus has the capacity to create a liability for
those under its rule, but not an obligation. To be liable to
legitimate political authority means to not be free from the
authority's power or control. To be sure, the liability might be
to be subject to a duty, but to be liable to be put under a duty to
obey should not be confused with being under a duty to obey (see also
Perry 2013 on this distinction).



Views that dissociate legitimate authority from political obligation
have some appeal to those who aim to counter Robert Paul Wolff's
influential anarchist argument. The argument highlights what today is
sometimes called the subjection problem (Perry 2013): how can
autonomous individuals be under a
general--content-independent--obligation to subject their
will to the will of someone else? A content-independent obligation to
obey the state is an obligation to obey a state's directives as
such, independently of their content. Wolff (1970) argues that because
there cannot be such a general obligation to obey the state, states
are necessarily illegitimate.



Edmundson (1998) has a first response to the anarchist challenge. He
argues that while legitimacy establishes a justification for the state
to issue directives, it does not create even a prima facie duty to
obey its commands. He claims that the moral duty to obey the commands
of legitimate political authority arises only if additional conditions
are met.



Simmons (2001) has a different response to Wolff. Simmons draws a
distinction between the moral justification of states and the
political legitimacy of a particular, historically realized, state and
its directives. According to Simmons, the state's justification
depends on its moral defensibility. If it can successfully be shown
that having a state is morally better than not having a state (Simmons
2001: 125), the state is justified. But moral justification is only
necessary, not sufficient, for political legitimacy, according to
Simmons. The reason is that our moral obligations are to everyone,
including citizens of other states, not to the particular state we
live in. A particular state's legitimacy, understood as the
capacity to generate and enforce a duty to obey, depends on
citizens' actual consent. While there is no general moral duty
to obey the particular state we live in, we may have a political
obligation to obey if we have given our prior consent to this state.
The absence of a general moral duty to obey the state thus does not
imply that all states are necessarily illegitimate (Simmons 2001:
137).


## 3. Sources of Political Legitimacy



Insofar as legitimacy, understood normatively, determines which
political institutions and which decisions made within them are
justified or acceptable, and, in some cases, what kind of obligations
people who are governed by these institutions incur, there is the
question of what makes political institutions and political decisions
legitimate. As we'll see, this question has both a normative and
a meta-normative dimension (see Peter 2023 for more on this
distinction). This section briefly reviews different accounts that
have been given of the sources of legitimacy.


### 3.1 Consent



While there is a strong voluntarist line of thought in Christian
political philosophy, it was in the 17th century that
consent came to be seen as the main source of political legitimacy.
The works of Hugo Grotius, Hobbes, and Samuel Pufendorf tend to be
seen as the main turning point that eventually led to the replacement
of natural law and divine authority theories of legitimacy (see
Schneewind 1998; Hampton 1998). The following passage from
Grotius' *On the Law of War and Peace* expresses the
modern perspective: "But as there are several Ways of Living,
some better than others, and every one may chuse which he pleases of
all those Sorts; so a People may chuse what Form of Government they
please: Neither is the Right which the Sovereign has over his Subjects
to be measured by this or that Form, of which divers Men have
different Opinions, but by the Extent of the Will of those who
conferred it upon him" (cited by Tuck 1993: 193). It was
Locke's version of social contract theory that elevated consent
to the main source of the legitimacy of political authority.



Raz helpfully distinguishes among three ways in which the relation
between consent and legitimate political authority may be understood
(1995: 356): (i) consent of those governed is a necessary condition
for the legitimacy of political authority; (ii) consent is not
directly a condition for legitimacy, but the conditions for the
legitimacy of authority are such that only political authority that
enjoys the consent of those governed can meet them; (iii) the
conditions of legitimate political authority are such that those
governed by that authority are under an obligation to consent. There
is a question, however, whether versions of (ii) and (iii) are best
understood as versions of a consent theory of political legitimacy, or
whether they are versions of an alternative justificationist theory
(Stark 2000; Peter 2023).



Locke and his contemporary followers such as Robert Nozick (1974) or
Simmons (2001), but also Rousseau and his followers defend a version
of (i)--the most typical form that consent theories take. Amanda
Greene (2016) defends a version of this view she calls the quality
consent view. One question that all versions of (i) must address is
whether consent must be explicit or whether tacit consent, expressed
by residency, is sufficient (see Puryear 2021 for a defence of the
latter).



Versions of (ii) appeal to those who reject actual consent as a basis
for legitimacy, as they only regard consent given under ideal
conditions as binding. Theories of hypothetical consent, such as those
articulated by Kant or Rawls, fall into this category. Such theories
view political authority as legitimate only if those governed would
consent under certain ideal conditions (cf. section 3.2).



David Estlund (2008: 117ff) defends a version of hypothetical consent
theory that matches category (iii). What he calls "normative
consent" is a theory that regards non-consent to authority,
under certain conditions as invalid. Authority, in this view, may thus
be justified without actual consent. Estlund defines authority as the
moral power to require action. Estlund uses normative consent theory
as the basis for an account of democratic legitimacy, understood as
the permissibility of using coercion to enforce authority. The work
that normative consent theory does in Estlund's account is that
it contributes to the justification of the authority of the democratic
collective over those who disagree with certain democratically
approved laws.



Although consent theory has been dominating for a long time, there are
many well-known objections to it. As we will explain more fully in the
next section, Simmons (2001) argues that hypothetical consent theories
(and, presumably, normative consent theories, too) conflate moral
justification with legitimation, and that only actual consent can
legitimize political institutions. Other objections, especially to
Lockean versions, are about as old as consent theory itself. David
Hume, in his essay "Of the Original Contract", and many
after him object to Locke that consent is not feasible, and that
actual states have almost always arisen from acts of violence. The
attempt to legitimize political authority via consent is thus, at
best, wishful thinking (Wellman 1996). What is worse, it may obscure
problematic structures of subordination (Pateman 1988). Hume's
own solution to this problem was, like Bentham later, to propose to
justify political authority with reference to its beneficial
consequences (see section 3.3).


### 3.2 Public Justification and Political Participation



An important legacy of consent theory in contemporary thought is
manifest in accounts that attribute the source of legitimacy either to
an idea of public reason--taking the lead from Kant--or to a
theory of democratic participation--taking the lead from
Rousseau. Theories of deliberative democracy combine elements of both
accounts.



Public reason accounts tend to focus on the problem of justifying
political coercion. The solution they propose is that political
coercion is justified if it is supported on the basis of reasons that
all reasonable persons can share. Interest in public reason accounts
started with Rawls' *Political Liberalism,* but Rawls
developed the idea more fully in later works. Rawls'
starting-point is the following problem of legitimacy (Rawls 2001:
41): "in the light of what reasons and values ... can
citizens legitimately exercise ... coercive power over one
another?" The solution to this problem that Rawls proposes is
the following "liberal principle of legitimacy":
"political power is legitimate only when it is exercised in
accordance with a constitution (written or unwritten) the essentials
of which all citizens, as reasonable and rational, can endorse in the
light of their common human reason" (Rawls 2001: 41; see
Michelman 2022 for an extensive discussion of constitutional
essentials).



Rawls' idea of public reason, which is at the core of the
liberal principle of legitimacy, rests on the method of
"political"--as opposed to
"metaphysical"--justification that Rawls has
developed in response to critics of his theory of justice as fairness
(Rawls 1993). This means that public reason should be
"freestanding" in the same way as his theory of justice
is. Public reason should involve only political values and be
independent of--potentially controversial--comprehensive
moral or religious doctrines of the good. This restricts the content
of public reason to what is given by the family of what Rawls calls
political conceptions of justice (Rawls 2001: 26). Rawls recognizes
that because the content of the idea of public reason is restricted,
the domain to which it should apply must be restricted too. The
question is: in what context is it important that the restriction on
reason is observed? Rawls conceives of the domain of public reason as
limited to matters of constitutional essentials and basic justice and
as applying primarily--but not only--to judges, government
officials, and candidates for public office when they decide on
matters of constitutional essentials and basic justice.



Simmons (2001) criticizes Rawls' approach for mistakenly
blurring the distinction between justifying the state and political
legitimacy (see also section 2.3.). A Rawlsian could reply, however,
that the problem of legitimacy centrally involves the justification of
coercion, and that legitimacy should thus be understood as what
creates--rather than merely justifies--political authority.
The following thought supports this claim. Rawls--in
*Political Liberalism*--explicitly focuses on the
democratic context. It is a particular feature of democracy that the
right to rule is created by those who are ruled. As Hershovitz puts it
in his critique of the Razian approach to political legitimacy, in a
democracy there is no sharp division between the "binders"
and the "bound" (2003: 210f). The political authority of
democracy is thus entailed by some account of the conditions under
which citizens may legitimately exercise coercive power over one
another (see Viehoff 2014 and Kolodny 2023 on this question). But even
if Simmons' objection can be refuted in this way, a further
problem for public reason accounts is whether they can successfully
show that some form of public justification is indeed required for
political legitimacy (see Enoch 2015).



Recent public reason accounts have developed Rawls' original
idea in different ways (see also the entry on public reason). Those
following Rawls more closely will understand public reasons as reasons
that attract a--hypothetical--consensus. On this
interpretation, a public reason is a reason that all reasonable
persons can be expected to endorse. The target of the consensus is
either the political decisions themselves or the procedure through
which political decisions are made. On a common reading today, the
Rawlsian idea of public reason is understood in terms of a
hypothetical consensus on substantive reasons (e.g., Quong 2011;
Hartley and Watson 2018). On those conceptions, the use of political
coercion is legitimate if it is supported by substantive reasons that
all reasonable persons can be expected to endorse. The problem with
this interpretation of public reason is that the demand for a
consensus on substantive reasons in circumstances of moral and
religious pluralism and disagreement either relies on a very
restrictive characterization of reasonable persons or ends up with a
very limited domain for legitimate political coercion.



Rawls' conception of political legitimacy can also be understood
in terms of procedural reasons (Peter 2008). On this interpretation,
the domain of public reason is limited to the justification of the
process of political decision-making, and need not extend to the
substantive (as opposed to the procedural) reasons that justify a
decision. For example, if public reason supports democratic
decision-making, then the justification for a decision is that it has
been made democratically. Of course, a political decision that is
legitimate in virtue of the procedure in which it has been made may
not be fully just. But this is just a reflection of the fact that
legitimacy is a weaker idea than justice.



An alternative interpretation of the public reason account focuses on
convergence, not consensus (Gaus 2011; Vallier 2011; Vallier and
Muldoon 2020). A political decision is legitimized on the basis of
public reason, on this account, if reasonable persons can converge on
that decision. They need not agree on the--substantive or
procedural--reasons that support a decision. Instead, it is
argued, it is sufficient for political legitimacy if all can agree
that a particular decision should be made, even if they disagree about
the reasons that support this decision. Note that the convergence
needs not be actual; it can be hypothetical.



Accounts that emphasize political participation or political influence
regard a political decision as legitimate only if it has been made in
a process that allows for equal participation of all relevant persons.
They thus see political legitimacy as dependent on the participation
or influence of all, to paraphrase Bernard Manin's (1987)
expression, not on the will of all, as consent theories do, or on a
justification all can access, as public reason accounts do. Older
accounts of this kind focus on democratic participation (Pateman
1970). Newer accounts include deliberative democracy accounts (Manin
1987), Philipp Pettit's equal control view (Pettit 2012), and
Lafont's theory of democratic legitimacy (Lafont 2019).



Rousseau's solution to the problem of how to explain the
legitimacy of political decisions has influenced many contemporary
democratic theorists (see section 4.3.). One of the important
departures from Locke's version of social contract theory that
Rousseau proposes is that tacit consent is not sufficient for
political legitimacy. Without citizens' active participation in
the justification of a state's laws, Rousseau maintains, there
is no legitimacy. According to Rousseau, one's will cannot be
represented, as this would distort the general will, which alone is
the source of legitimacy: "The engagements that bind us to the
social body are obligatory only because they are mutual... the
general will, to be truly such, should be general in its object as
well as in its essence; ... it should come from all to apply to
all; and ... it loses its natural rectitude when it is directed
towards any individual, determinate object" (Rousseau,
*Social Contract*, II:4; see also *ibid*. I:3 and Rawls
2007: 231f).



Rousseau distinguishes among a citizen's private will, which
reflects personal interests, a citizen's general will, which
reflects an interpretation of the common good, and the general will,
which truly reflects the common good. A democratic decision is always
about the common good. In democratic decision-making, citizens thus
compare their interpretations of the general will. If properly
conducted, it reveals the general will. This is the legitimate
decision.



Active participation by all may not generate a consensus. So why would
those who oppose a particular decision be bound by that decision?
Rousseau's answer to this question is the following. On
Rousseau's view, citizens can--and will want to--learn
from democratic decisions. Since the democratic decision, if conducted
properly, correctly reveals the general will, those who voted against
a particular proposal will recognize that they were wrong and will
adjust their beliefs about what the general will is. In this ingenious
way, individuals are only bound by their own will, but everyone is
bound by a democratic decision.


### 3.3 Normative Facts and Epistemic Advantage



The theories of political legitimacy reviewed in the previous two
sections take the citizens' will, whether expressed through
their actual consent, supported by shared or converging reasons, or
established through processes of political participation, as the
ground of political legitimacy. While such will-based conceptions have
dominated the philosophical literature on political legitimacy, they
are not the only conceptions on offer. There are two main
alternatives, as well as hybrid conceptions (see Peter 2023). A first
alternative are fact-based conceptions of political legitimacy,
according to which the legitimacy of political institutions and
decisions depends on whether they accord with normative facts.
Utilitarian theories, which focus on the beneficial consequences of
political institutions and the decisions made within them, are a good
example. According to belief-based conceptions, as articulated in
epistocratic conceptions and in some epistemic theories of democracy,
the source of political legitimacy is some form of epistemic advantage
that supports the justification of political decisions. In this
section, we expand on the two main alternatives to will-based
conceptions of political legitimacy.



In the utilitarian view, legitimate political authority should be
grounded on the principle of utility. The relevant normative facts are
facts concerning the maximization of happiness or utility. Christian
Thomasius, a student of Pufendorf and contemporary of Locke, may be
seen as a precursor of the utilitarian approach to political
legitimacy, as he rejected voluntarism and endorsed the idea that
political legitimacy depends on principles of rational prudence
instead (Schneewind 1998: 160; Barnard 2001: 66). Where Thomasius
differs from the utilitarians, however, is in his attempt to identify
a distinctively political--not moral or legal--source of
legitimacy. He developed the idea of "decorum" into a
theory of how people should relate to one another in the political
context. Decorum is best described as a principle of "civic
mutuality" (Barnard 2001: 65): "You treat others as you
would expect them to treat you" (Thomasius, *Foundations of
the Law of Nature and of Nations*, quoted by Barnard 2001: 65). By
thus distinguishing legitimacy from legality and justice, Thomasius
adopted an approach that was considerably ahead of his time.



Jeremy Bentham (in *Anarchical Fallacies*) rejects the
Hobbesian idea that political authority is created by a social
contract. According to Bentham, it is the state that creates the
possibility of binding contracts. The problem of legitimacy that the
state faces is which of its laws are justified. Bentham proposes that
legitimacy depends on whether a law contributes to the happiness of
the citizens. (For a contemporary take on this utilitarian principle
of legitimacy, see Binmore 2000.)



A well-known problem with the view that Bentham articulates is that it
justifies restrictions of rights that liberals find unacceptable. John
Stuart Mill's answer to this objection consists, on the one
hand, in an argument for the compatibility between utilitarianism and
the protection of liberty rights and, on the other, in an
instrumentalist defense of democratic political authority based on the
principle of utility. According to Mill, both individual freedom and
the right to participate in politics are necessary for the
self-development of individuals (Mill *On Liberty* and
*Considerations on Representative Government*, see Brink 1992;
Ten 1998).



With regard to the defense of liberty rights, Mill argues that the
restriction of liberty is illegitimate unless it is permitted by the
harm principle, that is, unless the actions suppressed by the
restriction harm others (*On Liberty*, chapter 1; for a
critical discussion of the harm principle as the basis of legitimacy,
see Wellman 1996; see also Turner 2014). Mill's view of the
instrumental value of (deliberative) democracy is expressed in the
following passage of the first chapter of *On Liberty*:
"Despotism is a legitimate mode of government in dealing with
barbarians, provided that the end be their improvement and the means
justified by actually effecting that end. Liberty, as a principle, has
no application to any state of things anterior to the time when
mankind have become capable of being improved by free and equal
discussion." Deliberation is important, according to Mill,
because of his belief in the power of ideas--in what Habermas
would later call the force of the better argument (Habermas 1990:
158ff). Deliberation should keep partisan interests, which could
threaten legitimacy by undermining the general happiness, in check:
"The representative system ought ... not to allow any of
the various sectional interests to be so powerful as to be capable of
prevailing against truth and justice and the other sectional interests
combined. There ought always to be such a balance preserved among
personal interests as may render any one of them dependent for its
successes, on carrying with it at least a large proportion of those
who act on higher motives, and more comprehensive and distant
views" (Mill, *Collected Works* XIX: 447, cited by Ten
1998: 379).



Many are not convinced that such instrumentalist reasoning provides a
satisfactory account of political legitimacy. Rawls (1971:175ff) and
Jeremy Waldron (1987: 143ff) object that the utilitarian approach will
ultimately only convince those who stand to benefit from the felicific
calculus, and that it lacks an argument to convince those who stand to
lose.



Can fact-based conceptions of political legitimacy address this
problem? Fair play theories offer one solution to this problem (see
Klosko 2004 and the entry on
 political obligation).
 Wellman's (1996) samaritan account of political legitimacy is
also an attempt to overcome this problem. In his account, a
state's legitimacy depends on it being justified to use coercion
to enforce its laws. His suggestion is that the justification of the
state can be grounded in the samaritan duty to help others in need.
The thought is that "what ultimately legitimizes a state's
imposition upon *your* liberty is not merely the services it
provides *you*, but the benefits it provides
*others*" (Wellman 1996: 213; his emphasis). Wellman
argues that because "political society is the only vehicle with
which people can escape the perils of the state of nature"
(Wellman 1996: 216), people have a samaritan duty to provide to one
another the benefits of a state. Associated restrictions of their
liberty by the state, Wellman claims, are legitimate.



Perfectionist theories offer another alternative. Perfectionist
conceptions can be found in ancient Chinese philosophy (see Chan 2013;
Jiang 2021). The best-known perfectionist theory in contemporary
Western political philosophy is Raz' service conception of
legitimate authority (section 2.1). Raz tries to show how an account
of legitimacy based on beneficial consequences is compatible with
everyone having reasons to obey the directives of a legitimate
authority. According to Raz (1995: 359), "[g]overnments decide
what is best for their subjects and present them with the results as
binding conclusions that they are bound to follow." The
justification for this view that Raz gives ("the normal
justification thesis") is, as explained above, that if the
authority is legitimate, its directives are such that they help those
governed to better comply with reasons that apply to them. (For
criticisms of this approach, see Hershovitz 2003 and 2011, Nussbaum
2011, and Quong 2011).



Perfectionist theories are often cast as versions of fact-based
conceptions of political legitimacy. But, as Plato highlighted in the
*Republic*, there isn't just the question of what the
right political decisions are, whether construed as those that
maximize utility, honor our duties, or realize some perfectionist
ideal. There is also the question of who should be in charge. And the
answer that Plato gave to that second question echoes a belief-based
conception of political legitimacy: it's those who know best and
who are capable of ruling accordingly (Estlund 2003). Seen in that
light, even Raz' service conception of political legitimacy
appears as a belief-based conception. It holds that "epistemic
abstinence" is not an option (Raz 1995) and that political
authority is legitimate if held by those who know best what reasons
apply to all citizens and exercised accordingly (see Peter 2023 for
this interpretation of Raz' service conception).



Belief-based conceptions of political legitimacy span versions of
epistocracy as well as versions of epistemic democracy. I'll
have more to say about epistemic democracy in section 4, so let me
focus on epistocratic conceptions here. Epistocratic conceptions of
political legitimacy are best understood in opposition to the
democratic commitment to strict political equality among the citizens
(see section 4). The idea is captured by Jason Brennan's
"antiauthority tenet" (Brennan 2016: 17), which echoes
David Estlund's "authority tenet" (2008: 30):
"When some citizens are morally unreasonable, ignorant, or
incompetent about politics, this justifies not permitting them to
exercise political authority over others."



Epistocratic conceptions of political legitimacy can support the
legitimacy of authoritarianism, assuming that there is an
authoritarian elite that has the right kind of political knowledge and
is able to effectively rule on that basis. We should not equate
epistocracy with authoritarianism, however, as epistocracy is also
compatible with a Millian plurality voting scheme and similar
political regimes. Still, as highlighted by Ross Mittiga (2022) and
Fabienne Peter (2023), the question has to be addressed whether
non-democratic political decision-making can be legitimate in
circumstances where the threats to citizens' lives are enormous
(through climate change, for example, or pandemics), the evidence for
what needs to be done is sufficiently robust, and the democratic
process is failing to address the issues.



An important objection to belief-based conceptions of political
legitimacy is that they conflate political authority and epistemic
authority (Estlund 2008, Darwall 2010, Lafont 2019; see also section 4
below). Raz (2010) rejects this objection, arguing that it only shows
that epistemic authority is not sufficient for political authority,
not that it is not necessary. Peter (2023) argues that even if this
objection can be refuted, belief-based conceptions of political
legitimacy often (but not necessarily always) fail because political
decision-making remains epistemically underdetermined.


## 4. Political Legitimacy and Democracy



This section takes a closer look at the relationship between democracy
and political legitimacy. In contemporary political philosophy, many,
but by no means all, hold that democracy is necessary for political
legitimacy. Democratic instrumentalism is the view that democratic
decision-making procedures are at best a means for reaching just
outcomes, and whether or not legitimacy requires democracy depends on
the outcomes that democratic decision-making brings about. Thomas
Christiano (2004) helpfully distinguishes between monistic conceptions
of political legitimacy and non-monistic ones. Democratic
instrumentalism is a monistic view. It reduces the normativity of
political legitimacy to a single dimension: only the quality of the
outcomes a particular political regime generates is relevant for
political legitimacy. The main alternative in contemporary political
philosophy is a form of proceduralism according to which democracy is
necessary for political legitimacy, independently of its instrumental
value (Buchanan 2002). Some such proceduralist conceptions of
democratic legitimacy are also monistic. What is commonly called pure
proceduralism is an example of a monistic view. According to pure
proceduralism only procedural features of decision-making are relevant
for democratic legitimacy. Many philosophers are drawn to non-monistic
conceptions of democratic legitimacy. Such mixed conceptions of
democratic legitimacy combine conditions that refer to the quality of
outcomes of democratic decision-making with conditions that apply to
procedural features.


### 4.1 Democratic Instrumentalism



Democratic instrumentalism is sometimes used to argue against
democracy. According to arguments of this kind, some ideal of good
outcomes, however defined, forms the standard that determines
political legitimacy (see section 3.3). If democracy does not
contribute to better outcomes than an alternative decision-making
procedure, it is not necessary for political legitimacy. The
instrumentalist accounts of Richard Arneson (2003) and Steven Wall
(2007), for example, refer to some ideal egalitarian distribution. In
their view, the legitimacy of political institutions and the decisions
made within them depends on how closely they approximate the ideal
egalitarian distribution. If sacrificing political equality allows for
a better approximation of equality overall, so their argument goes,
then this does not undermine legitimacy.



One problem with this view is that it treats political equality as
less important than the other kinds of equality that inform the
perfectionist standard. This is implausible to those who take
political equality to be one of the most important egalitarian values
(e.g., Rawls 1993; Buchanan 2002; Christiano 2008). In addition,
anti-democratic instrumentalism is at odds with the view that many
democrats hold--that democratic procedures create or constitute
political authority (Viehoff 2014, Kolodny 2023).



Instrumentalist defenses of democracy aim to show that democratic
decision-making procedures are legitimate because they are best able
to produce the right outcomes. Many of those arguments for the
legitimacy of democracy focus on the (instrumental) epistemic value of
democratic decision-making procedures. I'll discuss these in a
moment. But, first, it's important to note that not all do. A
fact-based version of democratic instrumentalism holds that democratic
decision-processes are legitimate to the extent that they, in fact,
promote morally good or just outcomes. Amartya Sen's finding
that democracies prevent famines illustrates the idea (Sen 1999).
Brinkmann (2019) argues that there is an indirect version of
instrumentalism about political legitimacy, which ties legitimacy to
justice, but that is less vulnerable to standard objections against
instrumentalism. This indirect instrumentalism, he argues, can support
the legitimacy of democratic procedures.



Epistemic justifications of democracy do not always target the
legitimacy of democracy. Some just aim to add to our overall
understanding of the justification of democracy, without claiming that
the epistemic argument provided is sufficient to establish the
legitimacy of democracy. Some pragmatist epistemic defences of
democracy, which need not be instrumentalist, are best interpreted
along those lines (e.g., Misak 2004, Talisse 2009). But to the extent
that they do target legitimacy, epistemic instrumentalist defenses of
democracy rely on what Estlund calls a "correctness theory of
democratic legitimacy" (Estlund 2008: 99). According to this
theory, democracy is necessary for legitimacy to the extent that it
generates political decisions that are correct or more likely to be
correct.



The best-known epistemic instrumentalist defense of democracy draws on
the Condorcet jury theorem (see Goodin and Spiekermann 2019 for a
comprehensive recent discussion). In its original formulation, the
Condorcet jury theorem assumes that there are two alternatives and one
of them is the correct outcome, however defined. Take the latter to be
the legitimate outcome. The theorem says that if each voter is more
likely to be correct than wrong, then a majority of all is also more
likely to be correct than wrong. In addition, the probability that a
majority will vote for the correct outcome increases with the size of
the body of voters. Since democracy has a greater constituency than
any other regime, the theorem gives an argument for why democracy is
best able to generate legitimate outcomes. Bernard Grofman and Scott
Feld (1988) interpret the Condorcet jury theorem as an explanation of
Rousseau's theory of how a democratic decision reflects the
general will.



In addition to arguments based on the Condorcet jury theorem, there
are other ways to defend the instrumental epistemic value of
democracy. The main alternative to the jury theorem is a
diversity-based mechanism. Helene Landemore (2012, 2020)
draws on work by Lu Hong and Scott Page (2004) to argue that by
bringing together diverse perspectives, democratic decision-making can
outperform decision-making by less diverse groups, e.g., groups of
experts.



Cristina Lafont (2019) objects that such epistemic instrumentalist
arguments misconstrue the grounds of political legitimacy, echoing
objections against epistocracy (section 3.3). According to Lafont,
epistemic arguments for democracy imply that citizens ought to defer
once the correct decision is identified. But, Lafont argues, the
unique legitimacy of democracy stems from honoring each
citizen's equal political authoritativeness and seeing each
citizen as an addressee of political justification, not as a
co-supplier of information for tracking a correct answer to a
question. This blocks a requirement to blindly defer to others -
a point she argues is lost in epistemic instrumentalist theories of
democratic legitimacy.


### 4.2 Pure Proceduralist Conceptions of Democratic Legitimacy



According to pure proceduralist conceptions of democratic legitimacy,
democratic decisions are legitimate as long as they are the result of
an appropriately constrained process of democratic decision-making.
These views place all the normative weight on the democratic
procedure.



There are several ways in which pure proceduralism might be
understood. On an account of aggregative democracy--which takes
the aggregation of individual preferences, for example through voting,
to be the key feature of democracy--pure proceduralism implies
that democratic decisions are legitimate if the aggregative process is
fair. Kenneth May's defense of majority rule (May 1952) relies
on a view of this sort (see also Dahl 1956).



On a deliberative account of democracy, legitimacy depends, at least
in part, on the process of public deliberation (Manin 1987; Bohman
1996; Gutmann and Thompson 1996). Thomas Christiano has a good
characterization of what pure proceduralism entails in an account of
deliberative democracy: "democratic discussion, deliberation,
and decisionmaking under certain conditions are what make the outcomes
legitimate for each person. ... [W]hatever the results of
discussions, deliberation, and decisionmaking ..., they are
legitimate. The results are made legitimate by being the results of
the procedure" (Christiano 1996: 35). The idea is that while
democratic deliberation helps sorting through reasons for and against
particular candidates or policy proposals, and perhaps even generates
new alternatives, the legitimacy of the outcomes of such a process
only depends on the fairness of the decision-making process, not on
the quality of the outcomes it produces. The justification for
conceptions of democratic legitimacy of this kind is that there is no
shared standard for assessing the quality of the outcomes--deep
disagreement about reasons for and against proposals will always
remain. A fair way to resolve such disagreements is thus the only
source of the legitimacy of the outcomes (Waldron 1996; Gaus 1997;
Christiano 2008).



Estlund (2008) has raised a challenge against fairness-based versions
of democratic proceduralism. He points out that other decision-making
procedures--flipping a coin, for example--also satisfy a
fairness requirement. An argument from fairness is thus insufficient
to establish the superior legitimacy of democratic decision-making.
Pure proceduralists can respond to this challenge by pointing to the
distinctive fairness of democratic decision-making procedures. They
can argue that the legitimacy of democratically made decisions stems
from the kind of political equality realized only by democracy.
According to Christiano (2008), only in a democracy are people
publicly treated as equals. According to Viehoff (2014) and Kolodny
(2023), only a democracy secures the kind of relational equality that
avoids subordinating some citizens to the decisions of others.



Another response to Estlund's challenge against fairness-based
arguments is to focus on the kind of freedom that democracy offers,
rather than on egalitarian considerations. Pettit's equal
control view, already mentioned in sections 1 and 3.3, rests on this
strategy. Pettit's republican theory defends democracy as
uniquely able to secure the non-domination of the citizens. Lafont
(2019) defends the legitimacy of democracy on the basis of its link to
self-governance (see the discussion of her view in section 4.1).



A different proceduralist response to Estlund's challenge is to
point to the procedural epistemic values that the democratic process
realizes--on how inclusive it is, for example, or how thoroughly
the knowledge claims on which particular proposals rest have been
subjected to criticism. The thought is that political legitimacy may
be jeopardized not just by unequal access to political, social and
economic institutions, but also by unjustified epistemic privilege.
What Peter calls pure epistemic proceduralism is a conception of
democratic legitimacy according to which political decisions are
legitimate if they are the outcome of a deliberative democratic
decision-making process that satisfies some conditions of political
and epistemic fairness (Peter 2008).


### 4.3 Alternative Conceptions of Democratic Legitimacy



Some conceptions of democratic legitimacy seek to reconcile
instrumentalist and non-instrumentalist considerations. What we may
call rational proceduralist conceptions of democratic legitimacy add
conditions that refer to the quality of outcomes to those that apply
to the procedural properties of democratic decision-making.



As is the case with pure proceduralist conceptions, rational
proceduralist conceptions of democratic legitimacy also vary with the
underlying account of democracy. A version of rational proceduralism
is implicit in Arrow's approach to aggregative democracy (Arrow
1963; see Peter 2008 for a discussion). The problem he poses is: are
there methods of democratic decision-making that are based on equal
consideration of individual interests and are conducive to rational
social choice? As is well known, his impossibility theorem shows a
problem with finding such decision-making mechanisms. Arrow's
way of posing the problem--which contrasts with May's
(1952)--suggests that the possible irrationality of majority rule
undermines its legitimacy, even if it respects certain procedural
values. His view implies that democratic legitimacy only obtains if
the outcomes themselves satisfy certain quality
conditions--specifically, he postulated that they should satisfy
certain rationality axioms.



The default conception of democratic legitimacy that many deliberative
democrats favor is also a version of rational proceduralism.
Habermas' conception of democratic legitimacy is an example.
Drawing on discourse ethics, Habermas (1990; 1996) argues that
people's participation in the justificatory processes of
deliberative democracy is necessary for political legitimacy.
According to him, "the procedures and communicative
presuppositions of democratic opinion- and will-formation function as
the most important sluices for the discursive rationalization of the
decisions of an administration bound by law and statute" (1996:
300). The legitimacy of democratic decisions, then, depends on both
procedural values and on the substantive quality of the outcomes that
these deliberative decision-making procedures generate. As Habermas
puts it: "Deliberative politics acquires its legitimating force
from the discursive structure of an opinion- and will-formation that
can fulfill its socially integrative function only because citizens
expect its results to have a reasonable *quality*"
(Habermas 1996: 304; see also Benhabib 1994; Knight and Johnson 1994;
Cohen 1997a,b; Bohman 1997). In his view, only deliberative democratic
decision-making can produce a decision everyone has reasons to
endorse.



Estlund objects to both pure proceduralist and the versions of
rational proceduralism just discussed that they unduly neglect
epistemic considerations. But he also objects to epistemic
instrumentalist accounts that they fail to give a sufficient
explanation for why those who disagree with the outcome of the
democratic decision-making process ought to treat it as binding. To
correct for that, Estlund's alternative conception of democratic
legitimacy puts more emphasis on procedures while still giving weight
to epistemic considerations. The conception of legitimacy that he
advocates "requires that the procedure can be held, in terms
acceptable to all qualified points of view, to be epistemically the
best (or close to it) among those that are better than random"
(Estlund 2008: 98). By privileging what he calls the "qualified
acceptability requirement" (2008: 40ff) over epistemic
considerations, Estlund avoids the worry about political deference
that drives Lafont's (2019) rejection of epistemic theories of
democratic legitimacy.



As we saw, worries about political deference are an important source
for scepticism about both epistocratic and epistemic democracy
theories of legitimacy (see also van Wietmarschen 2019, Lillehammer
2021, and Brinkmann 2022 on political deference). Peter (2023), by
contrast, argues that these principled worries about political
deference are overstated and that legitimate political decision-making
may be compatible with a requirement to politically defer, even in a
system that is overall democratic.


## 5. Legitimacy and Political Cosmopolitanism



Political cosmopolitanism about political legitimacy is the view that
national communities are not the exclusive source of political
legitimacy in the global realm. This is a minimal characterization. It
is compatible with a system in which nation states and their
governments remain the main political agents, as long as there is some
attribution of legitimate political authority to international
conventions. For even if states and their governments are the main
political entities, there is still the question about appropriate
relations among national actors. When should nation states recognize
another political entity as legitimate? And what are appropriate
sanctions against entities that do not meet the legitimacy criteria?
Call this the problem of international legitimacy.



Political cosmopolitanism is also compatible with the much more
demanding idea of replacing nation states and national
governments--at least in certain policy areas--by global
institutions. Examples of relevant policy areas are trade or the
environment. The associated global institutions may include both
global rules (e.g., the rules of the WTO treaty) and global political
agents (e.g., the UN General Assembly). This raises the question of
what conditions such global governance institutions have to satisfy in
order to qualify as legitimate. Call this the problem of global
legitimacy.


### 5.1 Political Nationalism



The more familiar, contrasting position is political nationalism. It
is the view that only the political institutions of nation states pose
and can overcome the legitimacy problem and hence be a source of
political legitimacy. Political nationalism is usually defended on the
grounds that there is something unique either about the coercion
deployed by states or about the political authority which states
possess which needs justification (see Stilz 2019 and Sadurski, Sevel,
and Walton 2019 for recent explorations of these issues).



Political nationalism has had much influence on debates on global
justice. Some have argued that because moral cosmopolitan commitments
trump commitments to (national) legitimacy, a conception of global
justice can be detached from concerns with legitimacy (Beitz 1979a,b,
1998; Pogge 2008). Others have argued--again assuming political
nationalism--that legitimate authority at the level of the nation
state is necessary to pursue moral cosmopolitan goals (Ypi 2008
provides an empirical argument). Yet others have argued against the
idea of global justice altogether, on the grounds that political
legitimacy ties obligations of justice to nation states (Blake 2001;
Nagel 2005). What these approaches to global justice have failed to
address is the possibility of sound political cosmopolitan conceptions
of political legitimacy. Nicole Hassoun (2012) takes this issue as her
starting-point. She argues that the coercive power of global
governance institutions raises a legitimacy problem of its own and,
turning the arguments of Michael Blake (2001) and Thomas Nagel (2005)
on their heads, that securing the legitimacy of those institutions
entails obligations of global justice. (See also Aytac 2022 on this,
who approaches the issue from political realist perspective.)


### 5.2 Political Cosmopolitanism



There are two main approaches to both international and global
legitimacy: the state-centered approach and the people-centered
approach. The former takes appropriate relations among states as
basic. As Charles Beitz characterizes this approach:
"international society is understood as domestic society writ
large, with states playing the roles occupied by persons in domestic
society. States, not persons, are the subjects of international
morality, and the rules that regulate their behavior are supposed to
preserve a peaceful order of sovereign states" (1979b: 408; see
also Beitz 1998). Locke, Bentham, and Mill, among others, approached
the issue of international legitimacy in this way. Among contemporary
thinkers, Michael Walzer (1977, 1980) defends a state-based--or
as he calls it--community-based approach. The most important
criterion of international legitimacy that he proposes is the
criterion of non-interference. (For discussions of Walzer's
proposal, see Beitz 1979a, b). Others have put forward conceptions
based on state consent. Rawls advocates a conception based on the
consent of "well-ordered" (either "liberal" or
"decent") peoples (Rawls 1999; for critical discussions,
see e.g., Buchanan 2000; Wenar 2002; Cavallero 2003).



The second approach takes features of individuals--their
interests or their rights--as basic for legitimacy. At present,
the most comprehensive contemporary philosophical treatment of
international legitimacy of this kind is probably Allen
Buchanan's *Justice, Legitimacy, and Self-Determination*
(2003). As mentioned above (section 2.2.), Buchanan advocates a
moralized conception of legitimacy, according to which entities are
legitimate if they are morally justified to wield political power.
Specifically, political legitimacy requires that a minimal standard of
justice is met.



On the basis of this moralized conception of legitimacy, Buchanan
argues against the state-based conception and against state consent
theories of legitimacy in particular. State consent, Buchanan claims,
is neither necessary nor sufficient for legitimacy. It is not
sufficient because it is well-known that states tend to be the worst
perpetrators in matters of human rights and there is thus need for an
independent international standard of minimal justice to obtain
legitimacy. It is not necessary, because international law recognizes
many obligations as binding even without the consent of acting
governments. As long as these obligations are compatible with the
minimal standard of justice, they are legitimate even if they have
arisen without state consent.



Buchanan also rejects the idea that the source of a legitimacy deficit
at the international level is the inequality among states. He does not
believe that states need to have equal weight in international
institutions. What he regards as the main problem of legitimacy at the
international level is, instead, that "a technocratic elite,
lacking in democratic accountability to individuals and nonstate
groups, is playing an increasingly powerful role in a system of
regional and global governance" (2003: 289). The more efficient
remedy for this problem, he argues, is protecting basic human rights
and improving democratic accountability.



Buchanan uses his conception of legitimacy to answer the question when
a political entity--as formed, for example, by secession or by
union--should be recognized as legitimate. He lists three
criteria (Buchanan 2003: 266ff). The first is a "minimal
internal justice requirement". It specifies how political
entities should treat those upon whom it wields political power.
Specifically, it requires that basic human rights are protected. This
requirement includes a demand for minimal democracy. But not all
political entities that satisfy this requirement deserve to be
recognized as legitimate. They also need to be formed in the right
way. The second criterion is thus a criterion of procedural justice
and requires that a political entity has not come about through
usurpation ("nonusurpation requirement"). Finally, there
is a "minimal external justice requirement". It contains
conditions about how political entities should interact with one
another.



Sofia Nasstrom (2007) uses the people-centered approach to
push against the tendency to associate state legitimacy with the
legitimacy of governments. The more fundamental question, she argues,
is what makes the constitution of a people legitimate. And it would be
a mistake to think that the constitution of a people is a historical
issue or an empirical given. What makes the constitution of a people
legitimate is a normative question in its own right that must be asked
before we can ask about the legitimacy of the government of a
people.



The question Nasstrom articulates, which is also discussed
in the literature on the constitution of the demos (Goodin 2007), is
important for the debate on the ethics of immigration. What is the
scope for legitimate border controls? Do states have a unilateral
right to control their borders or do potential immigrants have a right
to participate in the determination of immigration policies? Abizadeh
(2008) has argued, on the basis of the claim that the constitution of
the demos is not a historical given, that a commitment to a democratic
theory of domestic political legitimacy implies that one ought to
reject the unilateral domestic right to control and close the
state's boundaries. His key claim is that state borders are
coercive to potential immigrants. In light of this, and because, in a
democracy, the exercise of coercive political power requires some form
of democratic justification, he concludes that both citizens and
foreigners should have say in the determination of border policies.
(See Miller 2008 for a critical discussion of this argument.)



Conceptions of global legitimacy broaden the scope of legitimate
authority to global governance institutions. One of the precursors of
global legitimacy is Kant. Kant is often read as advocating a
conception of international legitimacy based on a loose "league
of nations"--especially in *Perpetual Peace*. But
Sharon Byrd and Joachim Hruschka (2008) argue that Kant, especially in
*The Doctrine of Right*, can also be read as favoring, a
"state of nation states" as the right approach to global
legitimacy. This conception, while stopping short of requiring a
single world state, confers more coercive political power to the
global level than the league of nations, which essentially leaves
untouched the sovereignty of nation states.



The philosophical literature on global legitimacy is very much work in
progress. But most proposals favor a multilevel system of governance
in which global legitimacy is to be achieved through an appropriate
division of labor between nation states and issue-specific global
governance institutions (e.g., Caney 2006; Valentini 2012).



Any successful theory of global legitimacy has to cover the following
three issues. First, what are global governance institutions and in
what ways can and should they be thought of as taking over roles from
states or their governments? This is a question about the subject of
global legitimacy (Hurrell and MacDonald 2012). Second, what is the
legitimacy problem that such governance institutions face? And, third,
how can they solve this problem of legitimacy and what are legitimacy
criteria that apply to them? How, if at all, do these criteria differ
from those that apply at the level of nation states?



In response to the first question, Buchanan and Keohane (2006) argue
that global governance institutions such as the WTO or the IMF
"are like governments in that they issue rules and publicly
attach significant consequences to compliance or failure to comply
with them--and claim authority to do so" (Buchanan and
Keohane 2006: 406). These institutions are set up to handle certain
issues in similar fashion as national political agencies would. Just
like national political institutions, they are coordination devices.
Only they are created to solve problems that arise at the global
level.



Joshua Cohen and Charles Sabel (2005) have a slightly broader account
of global governance institutions--one that is not limited to
them being coordination devices, but that emphasizes coercion instead.
According to Cohen and Sabel 2005: 765), "[t]o a substantial and
growing extent ... rulemaking directly affecting the freedom of
action of individuals, firms, and nation states (and the making of
rules to regulate this rulemaking) is taking place ... in global
settings created by the world's nations but no longer under
their effective control." In their answer to the second
question, they relate the legitimacy problem of global governance
institutions to the absence of political authority, understood as
legitimate exercises of coercive political power, at the global level.
To overcome this problem, they argue, new modes of governance must be
created, with their own structures of accountability. These structures
are necessary to properly deal with the coercive power that these
institutions exercise.



Buchanan and Keohane agree that the attempt to rule without legitimacy
is an unjustified exercise of power. They also argue that the attempt
to rule without legitimacy raises not only a normative problem, but
has direct practical consequences, as institutions that appear
unjustified will not be effective. The problem of legitimacy that
global governance institutions face is that even when there is
widespread agreement that global institutions that can take on the
role of co-ordination devices are necessary, there will be widespread
disagreement about which particular institutions are necessary and
what rules they should issue (Buchanan and Keohane 2006: 408ff).



In answer to the third question, Buchanan and Keohane (2006) propose a
moralized conception of legitimacy: legitimacy "is the right to
rule, understood to mean both that institutional agents are morally
justified in making rules and attempting to secure compliance with
them and that people subject to those rules have moral,
content-independent reasons to follow them and/or to not interfere
with others' compliance with them" (2006: 411).
Substantively, they propose that an institution is morally justified
in this way if it does not contribute to grave injustices
("minimal moral acceptability"), if there is no obvious
alternative that would perform better ("comparative
benefit"), and if it respects its own guidelines and procedures
("institutional integrity") (Buchanan and Keohane 2006:
419ff).



An important question for political cosmopolitanism is to what extent
international and global legitimacy require democracy--either at
the level of national states and governments or at the level of global
governance institutions. Many writers on the subject have tended to
take a cautiously positive stance on this issue (e.g., Beitz 1979b,
1998; Held 1995, 2002; Buchanan 2003; Buchanan and Keohane 2006). An
exception is Rawls in *The* *Law of Peoples*, however,
who advocates a conception of international legitimacy that demands
that peoples and their states are well-ordered, but does not associate
well-orderedness with democracy.



There are two worries that tend to underlie the cautious attitude. One
is feasibility: it is often argued that democracy at the international
level, let alone at the level of global governance institutions, is
utopian and cannot be realized. The second worry is of a moral nature:
democracy should not be imposed on people and peoples who endorse a
different set of values (see Valentini 2014 for a discussion).



In response to the second worry, Christiano (2015) argues that a human
right to democracy is compatible with a right to self-determination
and that, properly understood, the right to self-determination
presupposes the human right to democracy. Christiano's work
offers the most comprehensive defense of a human right to democracy at
the domestic level (Christiano 2011; 2015). Christiano's
instrumental argument aims to show that democracies offer better
protection of a range of human rights than non-democracies. His
intrinsic argument for a human right to democracy builds on an
argument discussed earlier (section 4.2), namely that democracies are
uniquely able to realize the value of publicly treating people as
equals.



Cohen and Sabel (2005) seek to rescue an ideal of global democracy
from more skeptical tendencies in the literature. They respond to
these considerations by advocating a notion of global democracy that
emphasizes the deliberative aspect. Granting to skeptics that
democratic decision-making mechanisms might be problematic for both
feasibility reasons and moral reasons, they argue that some form of
deliberation is primarily what is needed to address the legitimacy
deficit that global governance institutions face (see also Appiah
2007; List and Koenig-Archibugi 2010).