Justice, Legitimacy, and Diversity

Political Authority Between Realism and Moralism

Emanuela Ceva, Enzo Rossi

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138109469
• eBook ISBN: 9781135724832
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Civics & Citizenship
• Index: Politics & International Relations

Most contemporary political philosophers take justice—rather than legitimacy—to be the fundamental virtue of political institutions vis-à-vis the challenges of ethical diversity. Justice-driven theorists are primarily concerned with finding mutually acceptable terms to arbitrate the claims of conflicting individuals and groups. Legitimacy-driven theorists, instead, focus on the conditions under which those exercising political authority on an ethically heterogeneous polity are entitled to do so. But what difference would it make to the management of ethical diversity in liberal democratic societies if legitimacy were prior to or independent from justice?

This question identifies a widely underexplored issue whose theoretical salience shows how the understanding of what constitutes the primary question of political philosophy has a deep impact on how practical political questions are interpreted and addressed. What difference would it make, for example, whether the difficulties concerning the safeguard of human rights were couched in terms of the justice or of the legitimacy of the documents and treaties sanctioning their implementation. How should the issue of the quality of democracies be addressed whether one assigned priority to the justice or legitimacy of democratic institutions? Addressing these and other topical questions, the book offers a new theoretical angle from which to consider a number of pressing social and political issues.

This book was previously published as a special issue of the Critical Review of Social and Political Philosophy.

Introduction: Justice, Legitimacy and Diversity

Emanuela Ceva^a and Enzo Rossi^b

^aDepartment of Political and Social Sciences, University of Pavia, Pavia, Italy

^bSocial Ethics Research Group, Faculty of Education & Social Sciences, University of Wales, Newport, UK

That a polity should be, in a basic sense, legitimate and just is hardly a disputed stance among political theorists. More precisely, the task – commonly considered crucial to liberal political philosophy – of justifying the social order to all those who are subjected to it is standardly seen to embody both elements of justice and of legitimacy (Nagel 1991, Estlund 2007). However, there is little by way of consensus regarding the distinction between the two terms. Some draw a connection between them by explicitly presenting legitimacy as a criterion of minimal justice (Hampton 1998, Buchanan 2002), or in fact by considering justice as what specifies the standards of legitimacy, in the sense that the only authoritative orders a state may issue are just ones (Rawls 1971). Other theorists have disentangled justice and legitimacy altogether by construing both concepts as separate components of the answer to a wider question concerning the overall justification of the social order and of political authority, e.g. by arguing that a liberal–democratic political order calls for a specific kind of interaction between justice and legitimacy, where neither is a by-product of the other (Simmons 1999).

The possibility to operate a conceptual and/or empirical separation between the two ideas remains controversial, but has been object of little discussion. This issue aims to fill that gap. More specifically, it investigates the nature of the distinction between justice and legitimacy as well as the possible normative fallout of different ways of articulating the relationship between the two concepts. In fact, as some of the papers will demonstrate, the ways in which a polity should respond to ethical diversity are a particularly poignant example of how different understandings of the relationship between justice and legitimacy can make a difference to the normative standing of various concrete policies.

That becomes clear if one considers the question – prominent in this issue – of whether justice or legitimacy should be the first question of political philosophy. For justice-driven theorists, ethical diversity constitutes a political problem as it entails disagreements over the values that should inform the terms and conditions of social and political cooperation (Galston 2002, Larmore 1987, Rawls 1993, Scanlon 1998). From the perspective of justice, the main challenge raised by ethical diversity concerns, in other words, the formulation of principles according to which the costs and bene-fits of social cooperation should be distributed to different citizens putting forward different and possibly conflicting claims. Accordingly, the appropriate response to diversity would be primarily about finding fair or mutually acceptable terms to arbitrate such claims. On this approach, a possible way to conceptualize legitimacy would obtain as a consequence or a by-product of the establishment of a political and social framework characterized in terms of shared principles of justice.

Legitimacy-driven theorists, on the other hand, would not be directly concerned with the properties of the terms of social and political cooperation. Rather, they would concentrate on the impact of the fact of ethical diversity on the justification of political authority and on the terms and purpose of the exercise of coercive power (Copp 1999, Beetham 1991). Put differently, the main challenge raised by ethical diversity concerns, from the perspective of legitimacy, the conditions to make the state’s right to issue binding commands and to enforce them through coercive power compatible with and acceptable to a variety of citizens pursuing different and possibly conflicting life plans. This concern is crucial to theories of democratic legitimacy, especially those of a procedural breed (Christiano 1996, Estlund 2007). On this approach, the appropriate response to diversity would be primarily about devising the most effective way of realizing the normative commitments that ground political authority. Legitimacy-driven theorists may thus start developing a conception of justice only once the conditions for the exercise of political authority have been set out.

But, of course, that dichotomy is just a schematic exemplification of the relevance of the justice–legitimacy relationship, and as such does not exhaust the logical space of the possible articulations of that relationship, which this issue aims to disentangle. For example, a further, important thematic area that can be illuminated by an analysis of the relationship between justice and legitimacy is the current methodological debate between ‘moralists’ and ‘realists’ (Galston 2010, Geuss 2008, Williams 2005). Crudely, realists take issue with mainstream Anglophone political philosophy’s tendency to conceive of itself as a branch of applied ethics, insofar as it applies abstract pre-political moral ideals to the practice of politics. Realists contend that political norms cannot simply be derived from ethics, if only because the content of our morality is – at least in part – itself a product of the exercise of political power. Now the issue at the core of this issue provides a new angle from which to consider the debate between realists and moralists: the paramount concern for justice that dominates post-Rawlsian political philosophy could be seen as a consequence of its moralism, whereas realists would maintain that an empirically informed account of legitimacy should play a greater role in normative political theory.

Against this backdrop, the papers consider a number of specific questions that broadly address two main concerns: (1) the extent to which it is plausible to separate the legitimacy and justice of a polity, to capture different demands in the justification of the political and social order; and (2) the ways in which the challenge of ethical diversity affects the acceptability of the terms of social and political cooperation and the proper exercise of political authority, depending on whether normative theorizing is couched primarily in terms of justice or in terms of legitimacy.

Specifically, the collected contributions engage with such questions as:

• In what ways relations of moral and political authority can be reconciled with persons’ status as free and equal?
• How does political legitimacy relate to whether or not we consented to it?
• What is the role of the actual attitudes and beliefs of citizens, and of the social and political context in which they have saliency, in a theory of political legitimacy?
• Might unjust institutions still exercise legitimate political authority, and illegitimate institutions issue just commands?
• Are the qualities of institutional procedures relevant only for assessing the legitimacy of a polity, or is proceduralism also a sound approach to assessing its justice?
• On what principles should a distinctively democratic theory of political legitimacy be based?
• How should it respond to the challenges of religious and ethical diversity, at both a national and an international level?

What follows gives a brief account of the ways in which each contribution tackles those issues. The volume starts with Gerald Gaus’s discussion of the relation between justice, legitimacy and diversity within the ‘traditional’ framework of the consent theory of legitimacy (‘Justification, choice, and promise: three devices of the consent tradition in a diverse society’). Gaus builds his discussion on the twin ideas at the heart of the social contract tradition: that persons are naturally free and equal, and that genuine political obligations must in some way be based on the consent of those obligated. The Lockean tradition has held that consent must be in the form of explicit choice; Kantian contractualism has insisted on consent as rational endorsement. In his contribution, Gaus seeks to bring the Kantian and Lockean contract traditions together. On his view, Kantian rational justification and actual choice are complementary devices through which our freedom and equality can be reconciled with moral and political authority. For Gaus, we should not think that there is simply one way by which relations of moral and political authority can be reconciled with our status as free and equal. Accordingly, he defends three distinct devices through which freedom and authority may be reconciled: justification to others, social choice and promise.

All three aspects at the heart of Gaus’s proposal belong firmly to the furniture of the ‘consent tradition’. It is with such a tradition, broadly construed, that John Horton’s paper takes issue (‘Political legitimacy, justice and consent’). Specifically, Horton raises some doubts about the liberal answers, canvassed by Gaus, to the question of what it is for a state, constitution or set of governmental institutions to have political legitimacy. Horton labels the two main liberal approaches to political legitimacy as ‘Kantian’ and ‘libertarian’, focusing in particular on the case for decoupling legitimacy from principles of justice and on the place of consent. By contrast, Horton seeks to argue that, without endorsing a voluntarist theory, according to which political legitimacy is simply created by an individual consent, an adequate understanding of political legitimacy should take much more account of the role of the attitudes and beliefs of citizens and the social and political context in which they have saliency than most philosophical theories tend to do. This also involves acknowledging the limits of theory in determining criteria of political legitimacy.

Such a ‘realist turn’ is discussed further in Enzo Rossi’s contribution (‘Justice, legitimacy and (normative) authority for political realists’). Rossi takes issue with one of the main challenges faced by realists in political philosophy, namely that of offering an account of authority that goes beyond the notion of de facto authority. But is it possible to have an account of authority that is genuinely normative and yet does not consist of a moralistic application of general, abstract ethical principles to the practice of politics? As Rossi points out, political moralists or idealists typically start by devising a conception of justice based on their pre-political moral commitments; authority would then be legitimate only if political power is exercised in accordance with justice. As an alternative to that dominant approach he puts forward the idea that upturning the relationship between justice and legitimacy affords a normative notion of authority that does not depend on a pre-political account of morality. He then argues that the appropriate purpose of justice is simply to specify the implementation of an independently grounded conception of legitimacy, which in turn rests on a context- and practice-sensitive understanding of the purpose of political power.

The commitment to testing the plausibility of the idealistic aspirations of a theory of justice is central also to Glen Newey’s paper (‘Just politics’). In particular, Newey asks whether political justice can be encapsulated by procedures. To this end, he examines Rawls’s tripartite distinction between perfect, pure and imperfect procedural justice, concluding that none gives a satisfactory account of procedural justice. For Newey, imperfect procedural justice assumes that there could be an authoritative source of justice other than procedures, while perfect procedural justice takes a double-minded view of procedure-independent standards of justice. That leaves pure procedural justice as an apparently decisionistic mode of deciding which outcomes are just. Newey believes that this at least avoids the confusion between having authoritative procedures, and procedure-independent standards that are also purportedly authoritative. However, he argues that even a political procedure that defines the extension of a term such as ‘justice’ will lack authority over it once its reference is fixed. Since Rawls’s categories of procedural justice are taken by Newey to be jointly exhaustive, the problem of determining justice via political procedures appears insoluble.

Such a conclusion is disputed in Emanuela Ceva’s contribution (‘Beyond legitimacy. Can proceduralism say anything relevant about justice?’). According to Ceva, proceduralism may be viewed as a promising approach to justice on condition that we divorce the idea that the interesting point of having just procedures is their capacity of leading to just outcomes (the version of proceduralism discussed by Newey) and we recognize procedures as an independent locus for justice in its own right. To make her case, Ceva builds on a discussion of the distinction between justice and legitimacy: whilst legitimacy is often thought to concern the processes through which coercive decisions are made in society, justice has been standardly viewed as a ‘substantial’ matter concerning the moral justification of the terms of social cooperation. Accordingly, theorization about procedures may seem appropriate for the former but not for the latter. To defend proceduralism as a relevant approach to justice, Ceva distinguishes three questions: (1) Who is entitled to exercise coercive power?; (2) On what terms should the participants to a scheme of cooperation interact?; and (3) How should the costs and benefits produced by cooperation be distributed? Whilst legitimacy is taken to concern (1), justice applies to (2) and (3). Although, as Newey shows, the appropriateness of proceduralism is debatable in relation to (3), Ceva argues that it is well equipped to address the justice-related question in (2). And it does so by focusing on the inherent moral acceptability of the way in which persons are treated by the procedures through which they interact.

The connection between procedural principles and legitimacy is furthered, within the framework of democratic theory, in Valeria Ottonelli’s ‘Equal respect, equal competence and democratic legitimacy’. Equal respect for persons is often appealed to as the grounding procedural principle of democratic rule. Ottonelli argues that if this principle needs to account for the specific content of democratic political rights, it must be understood as respect for people as competent political decision-makers. However, the claim that respect is due to people as a response to their actual equal competence leads to conflate democratic legitimacy and substantive justice, rests on implausible factual assumptions and makes it impossible to advocate the effective equalization of political capabilities. Therefore, Ottonelli suggests that the principle of equal respect should be decoupled from such a claim and be rephrased as simply prescribing that people be treated or publicly recognized as equally competent. Ottonelli defends this interpretation against what she calls the ‘publicity objection’, according to which this take on the principle implies insincerity and therefore cannot serve as a public justification for democratic authority.

The last two papers in the issue operate within such a respect-based democratic framework to study the implications of religious and ethical diversity on the legitimacy of national and supranational institutions. In his contribution (‘Democratic legitimacy, legal expressivism, and religious establishment’), Simon Cabulea May argues that the constitutional establishment of a religion can be consistent with an expressivist interpretation of democratic political legitimacy, even in the familiar circumstances of religious diversity characteristic of a liberal society. Even if the state should be neutral in philosophical debates about religious doctrines, according to May, legitimate governments are, within broad limits, morally entitled to act in ways that they should not. His contention is that at least some instances of religious establishment can fall within the limits set by the democratic conception of legitimacy. This latter is taken to be grounded in two main principles: the principle of equal standing, stating that all citizens must be able to participate in political processes on equal terms; and the principle of equal respect, stating that governments may only exercise political power in ways that treat citizens as equals. In particular, May believes that whether official religious endorsements disparage or exclude religious minorities depends on a number of contextual considerations, including the philosophical content of the religion in question, the attitudes of the majority, and the underlying purpose of the official status of the religious doctrine.

The challenges posed by diversity to justice and legitimacy are explored at a global level in Sebastiano Maffettone’s paper (‘Global justification and local legitimation’). Maffettone distinguishes between the concepts of justification and legitimation with a view to offering a normative standard for the foundation of human rights compatible with cultural pluralism. According to this disti...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on Contributors
• 1. Introduction: Justice, Legitimacy and Diversity
• 2. Justification, choice and promise: three devices of the consent tradition in a diverse society
• 3. Political legitimacy, justice and consent
• 4. Justice, legitimacy and (normative) authority for political realists
• 5. Just politics
• 6. Beyond legitimacy. Can proceduralism say anything relevant about justice?
• 7. Equal respect, equal competence and democratic legitimacy
• 8. Democratic legitimacy, legal expressivism, and religious establishment
• 9. Global justification and local legitimation
• Index