Although the concept of legitimacy is widely invoked in social science literature, political discourse, and common parlance, key empirical and normative questions about legitimacy are often left far from answered, especially “Legitimated by whom?” and “Legitimate by what criteria?” Recently these questions have been raised with particular acuteness with regard to the nascent international society, for instance, the standing of the International Criminal Court and the 2003 invasion of Iraq by the United States-led coalition.Footnote ²

When, in modern writings, these questions are addressed, they are often treated in a liberal way; that is, legitimacy is viewed as the product of aggregated consent accorded by individuals to a given act, policy, law, public institution, or authority.Footnote ³ Moreover, focus is often on empirical questions: whether a given policy is considered legitimate, and what processes or factors account for the fact that a given population considers a given act as legitimate.Footnote ⁴ Much less often addressed is the normative question, which requires an observer to assess the moral standing of the act in question by drawing on exogenous criteria.Footnote ⁵

In contrast to such liberal and empirical approaches, this essay explores legitimacy from a communitarian, and a mainly normative, viewpoint. This approach suggests (a) that legitimacy is largely advanced by communal processes rather than through individual deliberations; (b) that these processes draw on shared normative cultures as their starting points; and (c) that these normative foundations are subject to communal deliberations, namely, by moral dialogues, but are not based on them. From this viewpoint, the question “Who legitimates?” is largely answered by pointing to a variety of nestling, cross-cutting and overlapping communities (including the nascent global one) rather than to aggregates of individuals making deliberated choices as free-standing agents. In contrast, the question “By what criteria can one judge that which is legitimate?” is not easily addressed. Neither relativism nor proceduralism provides a satisfactory answer. The thesis that there is a select core of values that are universal is a strongly contested position. However, as this essay will show, it has considerable pragmatic justifications.

Before proceeding, it is important to note that this essay presumes that legitimacy concerns a subset of moral deliberations and judgments—those that apply to political acts, to the use of power. (Hence many of the issues raised about morality also apply to legitimacy, but not necessarily the other way around.) The essay also presumes that legitimacy refers to moral judgments and not merely legal ones. This distinction is reflected in the Independent International Commission on Kosovo's statement that the NATO intervention in Kosovo was illegal but legitimate.Footnote ⁶

The Legitimating Agent: A Communitarian Perspective

The differences between liberalism and communitarianism have been often laid out.Footnote ⁷ Hence, this essay assumes that this debate is familiar and provides only a few comments that seek to connect the debate to the issue at hand.

According to premodern thinking, legitimation was often considered to be accorded either by a divine force or by tradition. An act, policy, or institution (from here on, for the sake of brevity, “act” will be used to denote all objects of legitimation) was considered legitimate because it had been declared so by some higher authority, such as the deity or the king, and/or by tradition. Modern thinking, beginning roughly in the seventeenth century, is marked by the transfer of legitimation from a singular, higher authority to those who are governed—who bestow legitimacy on the rulers by granting their consent.Footnote ⁸

To the extent that premodern views paid attention to the role of the governed in legitimating authority, their consent was typically interpreted as implied; the active participation of the people to manifest this consent was not required. In contrast, at the core of the modern concept of legitimacy is the concept of rights-bearing individuals, wielding the power to grant—or withhold—the legitimation of the government.Footnote ⁹

Still, contemporary liberal thinking tends to presume that although each individual is free to choose whether or not she will consent to view a given act as legitimate, there is for many purposes some form of aggregation—otherwise one could not rule that a given act is considered legitimate by “the people.” Which measures of aggregation are legitimate is a matter of some debate. Voting seems to be an obvious way.Footnote ¹⁰ Public opinion polls are also used,Footnote ¹¹ as is the absence of rebellion.Footnote ¹² In contrast, the thesis here advanced is that on most occasions when the legitimacy of a given act is explored, reference is actually to collective processes and not merely, or even primarily, to aggregation of intraindividual judgments. The question is not whether a given number of persons have decided that a given act is legitimate, but whether a given polity (drawing on communal processes, for instance on meetings in the agora or town-hall meetings) has so concluded. Hence, questions such as “Which polity is the relevant one?” and “What kinds of collective processes are at work?” are essential for the empirical study of legitimacy.

For liberals who view the self as an autonomous agent, the fact that the individual has freely and voluntarily consented provides the normative authority to whatever is being legitimated. That is, the free individual is considered to be the ultimate normative arbitrator. Communitarians challenge the assumption that the self is an autonomous agent.Footnote ¹³ For them, hence, such individual choices do not command the respect that liberals claim for them. Instead, communitarians view the self as, to a significant extent, reflecting the normative culture of the community (or communities) of which she is a member. An individual's personal preferences and deliberations are largely reflective of and affected by communal processes and hence are only partially autonomous.Footnote ¹⁴ From this viewpoint, it follows that in assessing the legitimacy of a given act one must also assess the normative culture of the relevant community (or communities) and not just of the individual involved.Footnote ¹⁵ Thus, the large number of Americans killed each year by guns reflects not merely or even primarily a personal conclusion by many millions of individual Americans that owning a gun is part of their birthright, but rather a culture that favors private ownership of guns, that legitimates laws that allow ready access to guns.

Communitarians can point to robust bodies of data generated by behavioral sciences that show that people have systematic, built-in cognitive biases. Thus, whether a given cost (or income, budget, etc.) seems small (and hence affordable) or large (and hence burdensome) depends on how people frame the given item (on what they compare it to). Also, people are found to develop emotional attachments to goods that prevent them from dealing with these goods in a rational way, an outcome known as the endowment effect. And people are deeply affected by relative costs and rewards (what they gain or lose compared to some others) rather than by actual amounts.Footnote ¹⁶ This essay seeks to explore the implications of these data for a communitarian position on legitimation.

In this context, a subtlety is best taken into account which has caused some communitarians to stumble. Some communitarians have argued against the liberal treatment of individuals as isolated atoms by proposing a view of the individual as a “socially embedded” entity.Footnote ¹⁷ Liberals have correctly responded to this assertion by stating that the fact that individuals “read” and respond to communal signals and inputs merely means that these signals and inputs serve as additional informational fodder for personal deliberations.Footnote ¹⁸ Thus, liberals conclude, at the end of the day, individual deliberations still determine whether a given act is legitimate.

Actually, the key relevant implication of these data for communitarians is that the self is both originally shaped and continuously affected by the communal environment in ways that the self is unaware of. That is, the community influences both the self's initial preferences and—to a significant extent—the changes in these preferences.Footnote ¹⁹ The internalization of values, through such communal processes as moral education, persuasion, and leadership, forms the individual's initial preferences as well as changes them over time.Footnote ²⁰ A brief examination of the very familiar way education and the formation of personalities take place supports this claim.

Children are born with broad, vague predispositions; they are predisposed to food over hunger, warmth over coldness, soothing sounds over aggressive ones, and other such leanings. These general predispositions are translated into specific preferences in line with the particular values of their culture and subculture that children internalize. Thus, while children have an inborn need for food and perhaps even for variation in foods they consider desirable, preferences for kosher food, soul food, fancy cuisine, or health food are culturally acquired tastes. Which tastes are acquired largely reflects whatever their parental or peer cultures cherish. Moreover, the acquisition is often only partially the result of conscious, “rational” reasoning. Once children become adults their preferences do not suddenly become immune to social influences, a fact that the data assembled by behavioral sciences, cited above, highlights. These observations lead to the question of what the main ways and processes are by which people's notions of what is legitimate are shaped and reshaped—the subject of the next section.

Communal Moral Dialogues as Agents of Change

One widely shared liberal answer to the question just articulated is provided by the students of deliberative democracy. These authors point to “reasoned deliberations” as the key way in which citizens of free societies come to change their judgments about what is legitimate. They see these as “cool” and rational processes that minimize the role played by emotions and other such “hot” factors. Proponents of deliberative democracy emphasize the exchange of information and weighing of evidence,Footnote ²¹ the “dispositions of reasonableness,”Footnote ²² reasoned arguments,Footnote ²³ impartiality,Footnote ²⁴ and enlightened understanding.Footnote ²⁵

Deliberations are said to appeal “to reasons we genuinely believe all reasonable persons could accept.”Footnote ²⁶ Deliberators must be “self-reflective about their commitments … and open to the possibility of changing their minds or modifying their positions at some time in the future if they confront unanswerable objections to their present point of view.”Footnote ²⁷ Shawn Rosenberg writes that “participation in deliberation leads individuals to reflect and interact in a way that is more logical, rational, just, considerate of others, self-critical, and oriented to the common good.”Footnote ²⁸ Joshua Cohen writes that “the point of Deliberative Democracy is to subject the exercise of political power to reason's discipline, to what Habermas famously described as ‘the force of better argument.’”Footnote ²⁹ Samantha Besson and Jose Luis Marti hold that deliberation “aims at a reasoned consensus achieved through rational persuasion by strong arguments, and deliberative parties are supposed to be impartially motivated.”Footnote ³⁰

Communitarians hold that such “cool,” rational deliberations are difficult to achieve under most circumstances and point to a rather different way in which communities reach a shared understanding of what they consider legitimate—namely, moral dialogues. Unfortunately, there are very few empirical studies of such dialogues. In the absence of systematic social science studies of moral dialogues, one draws on reports in the popular media and personal observations of a variety of meetings, ranging from those of the U.S. Congress and the British parliament to those of faculty in universities. These observations suggest that, to a significant extent, communities reach shared understandings about what they consider legitimate by a give-and-take that combines passion with normative arguments.Footnote ³¹

Even a very cursory examination of moral dialogues, such as those about the death penalty, the scope of the community's obligations to the environment, or relations between the genders, suggests that they often have no clear opening point or closing event. They are prolonged, heated, and seemingly meandering. However, over time they often seem to lead to new or reformulated shared normative understandings. Even very large and complex societies do engage in moral dialogues that lead to changes in that which is considered legitimate. These dialogues take place by linking millions of local conversations (between couples, in neighborhood bars, in coffee- or teahouses, around water coolers at work) into society-wide networks and shared public focal points. They take place during regional and national meetings of many thousands of voluntary associations in which local representatives engage in dialogue; in state, regional, and national party caucuses; in state assemblies and in Congress; and increasingly via electronic links (such as groups that meet on the Internet). Focal points of these dialogues are national call-in shows, debates on network television, and nationally circulated newspapers and magazines. Such dialogues led in earlier days to new shared understandings about the abolition of slavery, the extension of the right to vote to groups that had been previously excluded (especially women and minorities), and the taboo on military interventions in the internal affairs of other nations, and more recently about the definition of death (and when it is morally acceptable to stop medical interventions) and the danger of unfettered capitalism.

The opening up of many societies (especially former communist societies), the spread of education, the widening of people's attention horizon from the local toward the national and even global public affairs, the rise of worldwide TV networks (the “CNN effect”), increased travel and immigration, and the world wide web—all have led to the development of transnational moral dialogues in general and dialogues about that which is considered legitimate in particular. These dialogues are global not in the sense that all citizens participate, let alone agree, but that these dialogues reach across most borders.Footnote ³² Thus, concern for the environment now is widely shared; following transnational moral dialogues, a near-global shared understanding evolved that the 2003 invasion of Iraq by the Bush administration was not legitimate; shared moral understandings are developing about matters as different as the bans on child pornography, sex tourism, land mines, and whale hunting.

In sum, to answer “Who are the main agents of legitimation?” a communitarian approach focuses on communities and not on individuals, and pays mind to the ways such communities change their normative cultures, rather than merely or even mainly to intraindividual processes.

So far the discussion has focused on the question “Who is the major legitimating actor(s)?” The next step is to determine whether the acts that a single community, a majority of communities, or even all communities consider legitimate can be judged to be actually legitimate and what normative criteria can be employed in rendering such a judgment.

Normative Assessments of Legitimation

It may at first seem that the question of the normative standing of legitimation has already been answered: whatever a given community or set of communities considers legitimate—or that which conforms to their normative cultures—is legitimate.Footnote ³³ Indeed, several commonly used definitions of legitimacy so assume; for instance, where legitimacy is understood as that which “conforms to established norms.”Footnote ³⁴ At least one leading communitarian has stated that the community itself is the ultimate arbiter of that which is good.Footnote ³⁵ This is the position that communities not only reach conclusions as to what is considered legitimate, but that they also can bestow on such acts a moral seal of approval, that the political acts legitimated by a given community are deemed to be as they ought to be.

One can readily demonstrate that this is not a tenable position. Consider a community in Turkey or Pakistan that strongly and fully supports honor killings—that it considers it legitimate for brothers or fathers to kill their sister or daughter because she violated their code of good conduct by having premarital sex, even in cases in which she was raped.Footnote ³⁶ The members of these communities, even the women involved, may consider such killings legitimate, but outsiders nevertheless can and do pass normative judgments of their own. The same point can be made with reference to numerous acts that were considered legitimate by particular communities throughout history, communities that legitimated lynching people of a different color, burning books, or “merely” terrorizing people who hang a UN flag on their porch.

Some argue that there is no need for recognizing shared moral values to find transcultural sources of legitimacy, that people who are committed to different core values can still come to legitimate the same political acts. This position has been referred to as overlapping consensus.Footnote ³⁷ However, such agreements are much more readily achieved when people share basic values; some have even argued that they are impossible otherwise.Footnote ³⁸ Moreover, such agreements are much more stable when commitments to them are not expedient, prudential, or instrumental, but fundamental, based on shared core values.

Locating a robust normative Archimedean point for the legitimacy of decisions rendered by a community poses a credible challenge. Hence it is hardly surprising that various attempts have been made to deal with this challenge while avoiding the central question: Which overarching, possibly universal, values can provide a basis for transcommunal, normative judgments in general, and that which is legitimate in particular?

One popular exit strategy is the position that an act is legitimate if it is formulated through a specified procedure; for example, a majority vote, a Supreme Court ruling, a decision by the UN Security Council, by random selection such as flipping a coin, or some other such “neutral” measures.Footnote ³⁹ Such procedural sources of legitimation are often contrasted with substantive judgments, which are based on compatibility of the decisions with a given set of values.Footnote ⁴⁰ Thus, under proceduralism, a decision—and, in substantive terms, its opposite—could be equally legitimate, depending on which was endorsed, say, by the majority. For example, torture–or a ban on torture—have here the same standing, as long as the proper authority, following the proper procedures, so rules. However, we realize that such an exit is flawed.

Moreover, which procedures are considered legitimate is based on one's substantive values. Some criticize deliberative democracy in these terms, by pointing out that its own status as a legitimating procedure has not been arrived at through deliberation, but is based on substantive values.Footnote ⁴¹ Others level this criticism at Habermas's theory of “constitutional patriotism.”Footnote ⁴² In short, substantive normative judgments lurk closely behind the seemingly substance-free procedures.

Moreover, even strong advocates of democracy as the procedural wellspring of legitimate decisions hold that some values ought not to be subjected to majority rule, or to any kind of voting; for instance, minority rights and, more generally, individual rights. Furthermore, although courts are another source of legitimate rulings, especially the Supreme Court, observers regularly question whether a given ruling by the Supreme Court is, in fact, legitimate (e.g., Plessy v. Ferguson, Bush v. Gore) by appealing to substantive values.

In short, the quest for an overarching normative Archimedean point is not satisfied by pointing to legitimating procedures.Footnote ⁴³

Select Universal Values? A Global Perspective

A highly contested answer to the question “Legitimate by what criteria?” is the thesis that there is a core of universal values, a set of moral obligations that hold for all human beings, and that such values provide the needed Archimedean point and can serve as a basis for cross-cultural judgment about which acts are legitimate.

How is one to recognize a value that is universal? A significant branch of philosophy holds that there are select values (or “moral causes”) that speak directly to all human beings, which those who hear their voice find compelling.Footnote ⁴⁴ People find that these values demand their compliance (somewhat the way religious people speak about revelation or a calling). America's Founding Fathers based the legitimacy of the new regime they created on what they referred to “self-evident” truths—evident not to Americans but to all human beings.

Michael Zuckert has provided in this journal a very carefully argued case that the Founding Fathers did not mean by this phrase truths that everyone will immediately recognize as valid, but truths that “we” (i.e., Americans) “hold” (i.e., believe) to be valid.Footnote ⁴⁵ There can be little question that the text can be interpreted in this way, and Zuckert provides many reasons to hold that this is indeed what was on the Founders' minds. However, it does not follow that we cannot understand the claim that certain truths speak to us in a particularly compelling, direct way. For instance, while Peter Singer may argue against the ethical precept that we have extra obligations to our children, above and beyond those we have to all children, for the rest of us the moral truth of our extra obligations to our own children is so self-evident that it requires no reflection. Surely, we can and do probe this precept to see if it holds up against criticism, but this reflection comes after our recognition of the precept's validity and—to be truthful—most of us will not find reflection necessary. The claim is simply too self-evident. Also, as I show below, it makes a world of difference—for the world—if we interpret the Founding Fathers' declaration in a “naive” way (that they claimed that only those who are morally blind will not see the light) instead of in a “sophisticated” way, that these truths are some kind of American, political, positional statement.

Several social scientists have provided additional examples of such moral causes. James Q. Wilson points to a “moral sense” that informs people what these values are.Footnote ⁴⁶ Fairness is often given as an example of a value that people of very different backgrounds “sense” as compelling.Footnote ⁴⁷ Frances Harbour provides a list of primary values, including justice, beneficence, special beneficence to compatriots, subordinating interests of individual to group, good faith and veracity, courage, and self-control.Footnote ⁴⁸

The present author has asked groups on four hundred different occasions, in a large variety of cultures and subcultures, whether children should be taught that truth telling is morally superior to lying (with the qualification “under most conditions,” allowing for exceptions, typically in extreme situations and situations where the lie serves others and not oneself—for instance, one in which a Nazi solider knocks on one's door and asks whether one is hiding Jews). The response in all of these groups was the same: they were puzzled. They could not see a question. The preferred course was self-evident. (Even in cultures that put a high value on saving face, doing so without lying was preferred to lying.)

The obligation of stewardship toward Mother Earth, to at least not bequest it to our children in a worse condition than it was bequeathed to us, is another example of a universal value and, as such, a major source of legitimation. Reference to “Kyoto protocols” is often used as shorthand both to evoke this commitment and to criticize the nations that have failed to live up to it (either by not endorsing these protocols or not abiding by the requirements spelled out in these protocols). The compelling nature of this obligation is highlighted by the observation that no nation denies the legitimacy of this normative commitment, and that instead they limit themselves to arguing about how best to abide by it or when they can expect to be able to live up to this obligation given their state of economic development.

Human rights as a basic moral concept command universal respect, even by those who violate it often and grossly. This observation is supported by violators' tendency to become defensive about their failure to act in line with the dictates of human rights, rather than dismiss their normative standing.

The thesis that there is a limited core of select values whose normativity is self-evident across cultures, and that these can and do serve as an Archimedean point for bestowing legitimacy, is not based on some survey that shows that all the people of the world see these values as self-evident. The thesis is merely that (a) those who recognize these sources of normativity do not base them on rational deliberations but “automatically” see their moral validity (as illustrated by the response to the question about lying), and (b) that those who do not share this moral sense will do so if allowed open access to moral dialogues.

The first point is so far supported only by informal observations and introspection. The second point is very much subject to empirical verification by studying the people who formerly lived in closed cultures (whether totalitarian or theocratic) or were otherwise prevented from access to open dialogues. The test is the direction they move once their societies or their minds are opened up and they have continued access to moral dialogues. If they move toward the aforesaid values, their universality would be supported. Large scale systematic studies of such changes seem unavailable.