The Legitimacy of Modern Democracy

A Study on the Political Thought of Max Weber, Carl Schmitt and Hans Kelsen

Pedro T. Magalhães

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781351654005
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Global Politics
• Index: Politics & International Relations

By re-examining the political thought of Max Weber, Carl Schmitt and Hans Kelsen, this book offers a reflection on the nature of modern democracy and the question of its legitimacy. Pedro T. Magalhães shows that present-day elitist, populist and pluralist accounts of democracy owe, in diverse and often complicated ways, an intellectual debt to the interwar era, German-speaking, scholarly and political controversies on the problem(s) of modern democracy.

A discussion of Weber's ambivalent diagnosis of modernity and his elitist views on democracy, as they were elaborated especially in the 1910s, sets the groundwork for the study. Against that backdrop, Schmitt's interwar political thought is interpreted as a form of neo-authoritarian populism, whereas Kelsen evinces robust, though not entirely unproblematic, pluralist consequences. In the conclusion, the author draws on Claude Lefort's concept of indeterminacy to sketch a potentially more fruitful way than can be gleaned from the interwar German discussions of conceiving the nexus between the elitist, populist and pluralist faces of modern democracy.

The Legitimacy of Modern Democracy will be of interest to political theorists, political philosophers, intellectual historians, theoretically oriented political scientists, and legal scholars working in the subfields of constitutional law and legal theory.

The Open Access version of this book, available at https://doi.org/10.4324/9781315157566, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license

1 Max Weber’s Diagnosis of Modernity and the Ambivalence of Modern Democracy

DOI: 10.4324/9781315157566-1

When they hear the word “legitimacy,” social and political scientists immediately think of Max Weber and the three ideal types of legitimate domination—tradition, charisma and rational legality—he developed during the 1910s, his last and most prolific decade of intellectual activity. Although the Weberian triad might by now have become obsolete for their specific purposes (Dogan, 2010), its great achievement, in the eyes of empirically oriented social scientists, was that it rested on an operative concept of legitimacy, which allowed them to circumvent the troubled, normatively loaded waters of political philosophy. Weber (1978: 953) proceeds from ‘[s]imple observation,’ not from theoretical lucubration, to assert that legitimacy refers to the longing for validation experienced, almost like a basic physical need, by every—even if only minimally so—privileged human being. No more and no less than any petty advantage or privilege, domination (Herrschaft) seeks validation and justification, aiming to appear, both to those who dominate and, above all, to those who have to obey, as impeccably just and well deserved. In addition, the success of the rulers’ claims to having their authority acknowledged by the ruled depends less on the consistency of their arguments than on their ability to foster ‘the belief in legitimacy’¹ among the relevant audience (Weber, 1978: 213). Thus, in lieu of issuing essentially contestable value judgements on the pretensions of the ruling class, the social scientist merely has to determine, first, whether a general belief in the legitimacy of the extant order exists and, second, whereupon it rests. To help answer the latter question, Weber (1978: 953) reduced ‘the ultimate grounds of the validity of a domination’² to the ideal or pure types that form his famous triad.

It is not the intention of this chapter to examine Weber’s sociological definition of legitimacy and its implications. However, given the problem that concerns us here—Weber’s views on modern democracy and its legitimacy—no other approach would be feasible as a starting point. In fact, Weber wrote much more extensively on legitimacy, from a sociological perspective, than he did on democracy. Enquiring about Weber’s understanding of the legitimacy of modern democracy forces one, therefore, to bridge the gap between his sociology of domination and his political writings, where he expands on the predicaments of German democracy immediately before, during and in the aftermath of the First World War. While such an approach might at first sight seem dubious, for it reads texts of an utterly different nature—sociological studies aiming at an “objective” consideration of their subject matter, on the one hand, polemical and often passionately written political tracts, on the other hand—through the same analytic spectacles, a careful reading shows that they productively illuminate each other. Indeed, Scaff (1989: 4) is right when he argues that it is unfruitful to strictly separate Weber’s science from his politics. Also, Bendix (1977: 386, 438–457), in his explication of Weberian sociology, is fully justified in his recourse to the political writings to remedy the unfinished nature of Weber’s Staatssoziologie, on which the author was working at the time of his death in 1920, even if this commentator hangs on too much to a rigid distinction between the analytic work of the sociologist and the evaluative perspective of the politically engaged citizen.³ Moreover, the problem of modern democracy requires us to bear in mind, and to elucidate, the broader intellectual horizon of Weber’s œuvre. From The Protestant Ethic and the Spirit of Capitalism onwards, even if this became clear to him only later on, the fundamental goal of Weber’s research programme, perhaps even of his entire life-work, was to solve the riddle of modern Western singularity. Hence, all his subsequent writings, including the occasional political pieces, must be related to that chief personal, intellectual and political concern, and such a puzzle of singularity evidently transcends the domain of empirical regularities which, according to Weber, was that of sociology strictly speaking. Finally, if there is a concept that knits the different strands of Weber’s work together, it is the concept of charisma. It appears prominently in Weber’s comparative-historical studies of world religions, in the sociology of domination as an ideal type of legitimate rule and in his later political writings. It would be no exaggeration to say that it constitutes the key to Weber’s political thought. Indeed, as we will show, the fate of politics in the modern world, as a peculiar domain of human creativity, is for Weber tied to the destiny of charismatic authority.

With these preliminary considerations in mind, the chapter is structured as follows. The first section presents Weber’s sociological conception of legitimacy, the varieties of criticism it has encountered and the methodological problems it contains. Second, the chapter delineates Weber’s vision of modernity, stressing the ambivalences that lie at its core. Next, it examines the relationship of such an ambiguous diagnosis of modernity with the concept of charisma as ‘the specifically creative revolutionary force of history’ (Weber, 1978: 1117), which is threatened by the spectre of petrification that the immanent processes of modern life—of bureaucratization and, more generally, rationalization—give rise to. In the fourth section, the chapter surveys how that tension plays out in Weber’s political writings, where the author tackles the issue of the German transition to a modern democratic form of government. Lastly, the conclusion weighs the accomplishments and the shortcomings of Weber’s conception of modern democracy.

Weber’s Concept of Legitimacy: Critical Perspectives and Methodological Issues

Weber must surely have been aware of the heavy political and ideological burden attached to the word “legitimacy” since the French Revolution. However, in his writings, there is no reference—explicit or implied—to the doctrines of either Rousseau or the counterrevolutionary thinkers. In contrast to the abundant use of the adjective “legitimate” (legitim) and of the nouns “legitimacy” (Legitimität) and—though not so often—“legitimation” (Legitimation) in his sociological writings and elsewhere, the term “legitimism” (Legitimismus) as a reference to the ideology of dynastic legitimacy is almost completely absent from his vast œuvre.⁴

One of Weber’s biographers has linked the reading of legitimacy to the author’s own urge, in private and public matters alike, to justify himself and to prove that he was right (Radkau, 2013: 615–616). Be that as it may, the ground-breaking aspect in Weber’s sociological approach is the way it bypasses speculative disputes on the intrinsic normative value and logical consistency of claims to legitimacy to focus on the acceptance of such claims by a relevant audience, comprising both ‘positively and negatively privileged groups of human beings’ (Weber, 1978: 953). However, the intellectual operations which Weber’s approach to the problem of legitimacy generates should not be confounded—at least not prima facie—with a crude, naturalistic form of empiricism, which would wholly equate efficacy and validity.⁵ Legitimacy is not about the de facto capacity of some individuals and groups to impose their will upon others. To be sure, domination can be efficiently exercised, at least for a while, purely on a coercive basis or grounded in other—material, ideal or emotional—motives, which somehow make the ruled momentarily accept the claims of the rulers. Yet, such motives do not by themselves render domination legitimate. More than that, as we have already pointed out, legitimacy involves a widespread belief in the validity of domination (Legitimitätsglaube) (Weber, 1978: 31–32, 213, 248).

Critiques of Weber’s sociological reading of legitimacy are essentially of three kinds: moral, political/legal and methodological. The moral critique stresses the concept’s normative deficit and argues that it is a major distortion of meaning to evaluate the legitimacy of a given political order, not based on its own intrinsic qualities, but indirectly through the belief of the subjects in the order’s validity. Political philosophers from diverse intellectual traditions and ideological persuasions have made this point, emphasizing what they saw as the pernicious nihilistic, positivistic, relativistic, decisionistic and formalistic implications of Weber’s approach (Strauss, 1953: 36–80; Friedrich, 1963: 186; Voegelin, 1987: 13–22; Habermas, 1988: 97–102). Legitimacy, understood as ‘the belief in legitimacy’ held by the subjects of rule, might at first sight seem to render the concept immediately useful for empirical research, but it does not solve the subsequent, troublesome question of discerning what should actually count as an expression of such a belief. Does belief need to be conscious and articulated in discourse or symbols? Or is a merely tacit acknowledgement of authority, inferred from a routine behaviour of compliance, enough to establish that there is a belief in the legitimacy of the existing order? Weber’s sociology, and particularly the more empiricist-positivist shape it assumes in the late 1910s, opts for the second alternative. Action matters more than words or symbols, even if it appears just as a dull, repetitive behaviour—or, critics might argue, especially if it appears as a dull, repetitive, compliant behaviour. The consequence is, thus, to interpret the sheer stability of a given order as decisive evidence for a widespread belief in its legitimacy.

The political/legal critique, in essence, deplores the transformation of distinctively political or legal concepts into sociological categories. According to this viewpoint, Weber’s reading of legitimacy dissolves the specificity of the problems of political legitimacy or juristic legality by applying the concept to a vague and subjective notion of order. Quite incomprehensibly from the perspective of legal and constitutional theories and their accounts of sovereignty—however different or even antagonistic these might be—Weber maintains that, from a sociological point of view, there is no ‘rigid alternative between the validity and lack of validity of a given order,’ and ‘it is possible…for contradictory systems of order to exist at the same time,’ each being valid as long as ‘there is a probability that action will in fact be oriented to it’ (Weber, 1978: 32). These purely subjective systems of order, whose legitimacy cum validity is contingent upon action being regularly oriented to them, have nothing to do with the concept of order as it is commonly used in political and legal theories. Hans Kelsen (1921: 111), in an essay on Weber’s interpretive sociology, does not hide his bewilderment concerning the notion of tying the validity of an order to the probability of action being empirically oriented towards it—an inadmissible move, from a legal-normative perspective. From a different angle, it also comes as no surprise that Carl Schmitt (2009: 68–69) charged Weber of contributing to the technicization and economization of political concepts and modes of thought.⁶

Both of these critiques no doubt reveal difficulties within Weber’s sociological conception of legitimacy. Nonetheless, they often emerge from, or lead to, rather misleading, one-sided depictions of the author, as either an amoral thinker fascinated with power and stability or an apolitical man of science keen on dissolving political concepts into scientific-technical terms. In truth, however, the shortcomings of Weber’s sociological reading of legitimacy relate much more closely to the cumbersome methodological challenges the author tried to meet than to the half-finished pictures that critics and commentators frequently paint of him. In the late 1910s, Weber’s sociology was breaking away from historicism in search of a more satisfactory answer to the problems of meaning (Sinn) and understanding (Verstehen) in the human sciences. His approach is interpretive (verstehend) in the sense that it posits, quite in line with the historicist tradition, meaningful social interaction to be its object of study. But he further clarifies that the meaning he is looking for is not some culturally predetermined meaning that an interpreter might all too easily—this being the chief problem with the historicist approach inspired by the philosophy of Heinrich Rickert—project upon the action under study. Weber (1978: 4) aims at the ‘subjective meaning’ meant by the actual participants of social interaction. The problem which immediately arises is, of course, that of inferring meaning from social reality. Mere verbal utteranc...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1 Max Weber’s Diagnosis of Modernity and the Ambivalence of Modern Democracy
• 2 The Neo-Authoritarian Populism of Carl Schmitt
• 3 Science, Relativism and Pluralism: Hans Kelsen’s Conception of Modern Democracy
• Elitism, Populism and Pluralism: A Conclusion
• Index