Thornhill Political Legitimacy

Political Legitimacy: A Theoretical Approach Between Facts and Norms
Chris Thornhill
I. Introduction
The question of political legitimacy is a question that fundamentally divides sociology and political theory.1 Legitimacy is usually examined, by political theory, as the result of rationalized procedures, agreements or norms, or, by sociology, as the result of an aggregate of societally constituted attitudes, shared practices or facts. To date, no theoretical outlook has been developed that persuasively combines these perspectives to account for legitimacy as possessing both a normative and factual dimension, and that provides evidence to explain political legitimacy in both these dimensions at the same time.2 The purpose of this article is to offer a paradigm for analyzing the legitimacy of political power which overcomes the classical dichotomy between normative and sociological inquiry: it outlines a method for constructing and observing legitimacy that at once acknowledges and elucidates the normative premises and articulations of legitimacy, but that examines the norms producing legitimacy in a sociological light as principles whose foundation is not derived from static normative constructions or asocial models of rational deduction. In particular, this article proposes a theory of legitimacy that moves beyond the classical distinction between normative and sociological analysis by illuminating how the norms formative of legitimacy can be conceived as fully societal norms, which are produced as reflexive reactions to processes of inner-societal formation. In setting out this theoretical method, this article aims to examine legitimacy in a perspective that preserves the critical potential of normative political analysis whilst avoiding the elements of self-enabling hypostasis that often characterize such theory, and that preserves the evidential structure of sociology whilst offering a more secure sociological grounding for normative discussion of political order.
II. The Antinomies of Theory

At the level of first principles, the question of legitimacy necessarily brings to the fore a set of fundamental methodological divisions between sociological and political-theoretical analysis.3 Primarily, different normative analyses of legitimacy overlap, first, in the claim that theory can appeal to demonstrable norms (either substantive or procedural) to validate its account of legitimacy; second, in the claim that political systems obtain legitimacy if they integrate social agents under laws to which they accede for motives that they are freely and rationally able to articulate and justify; third, in the claim that the political system can be abstracted from its societal setting and its legitimacy externally measured by normative postulates; fourth, in the assumption that theory can significantly shape the political system, and that theoretical norms can at once evaluate and determine the structure of the political objects to which they refer. In contrast to this, different lines of sociological theory concerning
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legitimacy overlap, first, in the claim that legitimacy cannot be assessed in static, or externally theoretical norms; and second, in the claim that legitimacy must be observed or described in a broad societal constellation, and that it comprises, not only norms and articulated agreements, but a variable nexus of attitudes, practices and functions; third, in the claim that the integrative form of a legitimate political system resides diffusely and subjectively in the motives of social agents, whose compliance is multi-causal and not transparent to rational political analysis; fourth, in the claim that theory has limited capacity to structure social reality, and must content itself at most with a descriptive and observational role. In offering this oppositional account, it is naturally important to avoid over-simplification, and to recognize that normative theory analyzes legitimacy in many different ways. Modern normative theories of political legitimacy have generally been divided into two distinct approaches. Political theorists identified as liberals tend to consider the question of legitimacy as a matter concerning the prior moral or legal conditions under which political power is exercised. Liberals normally espouse a suspicious view of the state, and they argue that a political system possesses legitimacy if its exercise of power is either determined or constrained by demonstrably validated norms, articulated as laws, and if it recognizes addressees of laws as bearers of prior subjective rights, from which the content of particular laws is deducible.4 Political theorists classified as republicans, in contrast, tend to opt for a more positive view of the state, and they examine political legitimacy as a question of participatory engagement and active political identity.5 Republicans normally argue that a political system possesses legitimacy if it obtains the active approval of a majority of citizens, and if it passes laws that originate in practical agreements between citizens. Naturally, there are many sub-categories and intermediary variations within these classifications. Special mention might be made of the distinct, positivist/jurisprudential types of liberalism, which emphasize the status of positive law as a check on power.6 Similarly, utilitarian analyses of political legitimacy fall indeterminately between republican and liberal ideas, as they examine legitimacy as resulting from both the positive and interventional functions of the state and the justified expectations and measured entitlements of citizens.7 In the broadest terms, however, the antinomy between republicanism and liberalism can be observed, at face value at least, as the main fault-line underlying modern political reflection. Similarly, sociology also accommodates many methods for approaching legitimacy. Indeed, there have been numerous attempts to mediate between purely normative and purely sociological theories of legitimacy. From the side of political theory, for instance, some communitarian political analyses have borrowed directly from the attitudinal concepts of legitimacy that are usually seen as specific to sociology.8 Even some of the most influential normative theorists of legitimacy have rejected models of pure rational deduction, and they have attempted to account for the social preconditions of the rationality that produces and appraises the norms that underscore a legitimate polity.9 In addition to this, there are also just as many distinct purely sociological approaches to legitimacy as there are normative-analytical approaches, and many strictly sociological accounts of legitimacy possess a pronounced normative dimension. Some sociologically oriented analyses of legitimacy, clearly, deny that ideas of political legitimacy can be substantially other than ideology.10 Other critical sociological theories view legitimacy as an integrative attribute of a political system, which a particular political apparatus can produce and mobilize as a manufactured and counterfactual resource.11 Other sociological theories, albeit with variations of emphasis, also adopt an anti-normative approach and view legitimacy as the outcome of the political systems capacity for appealing to social agents through reference to deep-lying and structurally embedded symbolic motivations and often barely identifiable social dispositions.12 In a
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different lineage, however, some sociological theories account for legitimacy as a specific normative property of a political system, arising from the fact that the political system legitimizes itself by referring to norms that are embodied in social or cultural structures and by integrating social agents in relatively stable and sustainable value-patterns.13 In recent years, moreover, some sociological analysis has moved close to normative argument in describing the formative social locations of political morality, solidarity and agreements, and in examining the sources of political legitimacy as embedded in particular life-practices and transmitted into law and government from the civil sphere.14 These theories accommodate aspects of political-theoretical arguments in claiming that, in order to be legitimate, a political system must express an identifiable and articulated normative content. Despite this, however, normative and sociological analyses of legitimacy are always separated by certain underlying methodological and evidential distinctions. Above all, these distinctions are reducible to problems concerning the claims and status of theory. For the sociological view, the normative belief that theory is able to prescribe norms for evaluating legitimacy or significantly to adjudicate between opposing accounts of legitimacy appears as an unreflected residue of political metaphysics, in which theory idly posits itself, outside the social world of facts, as a final point of arbitration and absolute objectification. For sociological inquiry, in consequence, normative analyses of legitimacy contribute little to the explanation of the factual or motivational legitimization of power, and they suffer from acute and improbable conceptual literalism (that is, they na vely assume that simple concepts or prescriptions can generate plausibly overarching or even enforceably valid analyses of social processes). In deriving the standard of legitimacy from a socially withdrawn realm of norms, therefore, these analyses burden theory with a degree of externality to its objects that renders its insights unsustainable, and they struggle to produce evidence of legitimacy that might be applicably translated into the realm of objective political facts. The central problem of normative analysis, thus, is (for sociology) most essentially a problem of theory: in elevating theory to the level of prescriptive purism, normative analyses undermine theorys capacity for interpreting, explaining, and proposing valid criticism of particular political conditions. In response to this, however, the objections to sociological theory in normative analysis are also well known and they run along the same methodological fissure. Central to the rejection of sociological inquiry in normative theory is the claim that sociological theories have the common deficiency that, in focusing on the analysis of practices and facts instead of agreements and norms, they struggle to develop generalized theoretical constructs for accountably defining what is and what is not legitimate in the exercise of power. As a result, they fail, in the final analysis, to give reliable conceptual substance to the principle of legitimacy.15 The hostility of normative theory to sociology is thus also finally reducible to a problem of theory: in curtailing the capacity of theory for measuring societal forms by abstracted and defensible criteria, sociology (for normative theory) deprives theory of its ability to provide evidence positively to determine, or to measure the absence of, legitimacy, and it reduces theory to a level of highly contingent and variable description.
III. A Necessary Dichotomy?

If viewed from within an established methodological paradigm, the tension between these methods appears insoluble, and theory must simply elect whether to position itself on the normative or sociological side of this divide and then content itself with analyses pre-determined by this choice. If this position is accepted, theory must remain within its traditional antinomies, it must accept that its accounts of legitimacy are persuasive only to those who accept
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its prior methodological structure, and it must fall short of an encompassing (that is, factually and normatively evidenced) analysis of legitimate power. Alternatively, however, although classical normative theory is surely premised in a necessary hostility to sociology, theoretical sociology, if it reflects on its own foundations, might of itself mark out a path beyond the antinomies of normative and conventional sociological inquiry. Indeed, the occlusion of sociology against normative inquiry reflects, not only a constitutive methodological distinction, but also, arguably, a failure in the theoretical obligations of sociology qua sociology, which sociology might be pressed to overcome. Sociological constructions of legitimacy that devalue normative analysis, in other words, might be seen, in varying ways, arbitrarily to close their inquiries against certain primary objects of sociological observation: sociological analysis might need to assume a more refined normative sensibility to political norms in order to fulfil its explanatory commitments as sociology, and this, in turn, might yield an overarching theory of legitimacy able to satisfy different methodological standards. First, for instance, sociological accounts of legitimacy that denigrate normative principles ignore specifically sociological questions concerning the function of theoretical norms that attach to politics, and they impede examination of the structural or functional motives for which societies tend to explain their political operations in normative categories. For example, it might be observed as a general objective pattern across modern societies that political systems usually attempt to articulate both their foundations and their policies in reference to relatively generalized normative concepts, and they usually express their legitimacy in normatively formulated principles. Sociological theory that does not engage with the salience of norms in the grammar of modern politics thus restricts itself against a crucial and constant set of social phenomena: it might, as sociology, properly consider itself obliged to elucidate the societal functions and causes of political norms, and even to reflect on (and produce evidence for) questions concerning the relative legitimating force of different normative structures. Second, more importantly, sociological analysis of legitimacy that depreciates theoretical abstraction and derides political theory for its normative externality to its contents also closes itself against a further phenomenon that is structurally vital for modern society: that is, it neglects to observe the complex and often functionally non-explicit ways in which theory (and its normative content) relates, and is in fact integral, to factual processes of social and political formation. In this connection, it might also be observed as a general objective pattern across modern societies that political systems are widely constructed as objects of normative theoretical reflection, and that theory resonates through, and in fact objectively tests and pre-constructs, the factual terms in which the legitimacy of political systems is envisaged and accepted through society. The objective content of theory, therefore, might equally be seen as an essential focus of sociological inquiry into political legitimacy, and sociology that does not analyze the formative role of theoretical norms in modern politics also falls beneath the required level of social explanation. In other words, sociological theories of legitimacy often denounce the abstraction of theory, and its normative conclusions, in analytical political inquiry. Yet, in so doing, they neglect to reflect on the interwovenness of theoretical norms and the factual conditions of political legitimacy itself, and they consequently exclude from their view a key group of social functions. On these grounds, common sociological approaches to normative theory might easily although in apparent paradox be seen to suffer from the same conceptual literalism and even the metaphysical reductivism that they habitually reject as a characteristic of normative theory. The sociological devaluation of theoretical norms in politics in fact implicitly accepts normative theorys own self-construction: where it dismisses normative
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theory as simplistically literal and prescriptively external to its object and so as critically irrelevant, sociological theory also accepts and founds its analyses of legitimacy on the implied precondition that normative theoretical debates are conducted as metaphysically disengaged from social process. In consequence, such theory fails to examine, or even to detect, the socio-functional meanings that are contained within the literal meaning of normative theoretical arguments about politics and legitimacy, and it neglects to discern the internal integrity between theoretical norms and the political objects that they construct. Arguably, therefore, sociological views of political legitimacy that depreciate norms and the normative postulates of theory are perspectives that have not yet reached a condition of conclusively sociological reflection in respect of theory. In their inherited opposition to deductive normative inquiry, these views fail to observe the specifically sociological and functionally internal operations of political norms and normative theories concerning legitimacy. Like the normative theories whose reductivism they reproach, they fail to construe legitimacy, in all its dimensions (both factual and normative), as a comprehensively social phenomenon. When sociological critiques diagnose a problem of theory in normative analysis, in short, this is in large part a problem that sociology produces for itself, and it results from the fact that sociology remains obligated to the conceptual premises that it opposes: that is, that it has not yet become fully sociological in its analysis of norms and theory. A full appreciation of the sources of political legitimacy, however, might depend on the ability of sociology to overcome this self-created problem, to adopt a perspective of double reflexivity towards theories engendering political norms, and to interpret theory and theoretical norms from a less literally constructed vantage point. On this basis, this article proceeds from the claim that the methodological division between sociological and normative accounts of power and legitimacy can only be overcome through a self-correction of sociology, and that this self-correction is indispensable for a non-aporetic view of legitimacy. As declared above, this article develops this claim to provide an analysis of political legitimacy that aims to avoid the evidential aporia that both normative and customary sociological inquiry detect in each other. To fulfil this objective, this article seeks to present a theory of legitimacy that is fully sociological (not literal or metaphysical), and it claims that the normative and evidential aporia in other theories result, in the final analysis, from their sociological under-reflection. To elaborate a conclusively sociological account of legitimacy, then, this article proposes a theory that examines the legitimacy of a political order in society by focusing neither solely on its factual sociological preconditions nor on its abstracted normative prerequisites, but by observing how the factual conditions of powers organization and the theoretical principles of normative political reflection interact with each other in order to produce political conditions that are experienced, and can be broadly determined, as possessing legitimacy. On this account, political legitimacy has a primary functional dimension: it resides in certain functional attributes of a political system. In particular, legitimacy results from the ability of a political system to adapt to its functional objectives, to provide political performances that are accurately adjusted to the specific structure of a given society, and generally to use power in a manner that effectively stabilizes the social environments in which it is located. Moreover, legitimacy is a functional resource that depends on the ability of the political system to apply power in relatively simple, consistent and self-reproducing fashion, reliably to include certain societal exchanges in the transfusion of power, and to presuppose reasonably even compliance through society without over-intensified politicization or particular mobilization. This functional aspect of legitimacy, in its implications for specific social agents, is likely to be observable as a condition in which a political system enforces decisions
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that create conditions of stability, effective and differentiated inclusionary integration, and predictable motivation throughout society. To capture this functional aspect of legitimacy, however, it is necessary to qualify legitimacy in terms that are internal to a societys determinate motives for needing and circulating power, and it is necessary to view legitimacy as a resource that is required for the political inclusion (inclusion in power) of a distinct and limited number of social exchanges. In fact, legitimacy is a resource that a political system only has to consume and expend under quite specific societal conjunctures and in relation to quite specific exchanges (those susceptible to regulation through political power), and it is easily depleted if it is expended on questions that are not meaningfully subject to power. The functional legitimacy of a political system thus relies, in no small measure, on its ability to identify and control its in- and exclusionary boundaries in relation to other parts of society, and, at a particular juncture in its evolution, sensibly to regulate the processes in which it transmits power across society and in which it intersects with other functions (for example, law, religion, the economy, or science). In addition to this, however, this article also argues that political legitimacy has a normative reflexive dimension: it resides in certain reflexive attributes of a political system. In particular, legitimacy arises from the ability of a political system to provide generalized constructions of its objectives, to reflect its operations in terms that underline and support its adaptive exigencies and sustain its societal adequacy, and to describe itself and its power in a form that facilitates, generalizes and renders probable the processes of political inclusion and exclusion which it presupposes for its functional adequacy. Indeed, the normative/reflexive dimension of legitimacy might be viewed, above all, as a pre-emptive intelligence within political power by means of which the political system evades uncontrolled inclusion and, by internalizing generally and normatively articulated accounts of its recipients, pre-constructs and adaptively simplifies the inclusionary procedures in which its power is utilized and the social terrains to which it is applied. Both the in clusionary and exclusionary mechanisms required for the abstracted transfusion of power through society thus vitally presuppose an element of normative reflexivity in the political system. In this respect, therefore, although the normative capacities of the political system are inextricably attached to its functional dimensions (i.e. norms support the functional operations of the political system, and they facilitate the proportioned conduct of these operations), political norms also have a certain abstracted consistency and necessity within society: the adequate and inclusive (legitimate) circulation of power through society presupposes certain norms, and it would be impossible without them. In consequence, this article argues that political legitimacy needs to be observed as both a functional and a normative political reality: that is, as a condition in which institutions bearing societys power effectively perform certain basic functions, yet in which they also reflect themselves in external normative categories that promote the integrity and adaptive inclusivity of these functions. Additionally, this article suggests that adequate assessment of legitimacy in both its dimensions presupposes both a specific analysis of societal functions requiring legitimacy and a specific analysis of theoretical norms articulating legitimacy, and it argues that legitimacy needs to be seen as a phenomenon that emerges within a political system when this system adequately and inclusively correlates its practical functions and its normative-reflexive reserves. Because of this, then, this article also suggests that, in order to comprehend political legitimacy, it is necessary to pursue a fully sociological approach to normative theoretical analysis. Therefore, it offers an account of political legitimacy that also incorporates a sociology of political theory. Whilst rejecting theorys claim that it can externally construct or deduce prior norms of legitimacy, this article assesses how, over
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longer periods of time, theory and the normative postulates of theory reflect the functional exigencies of political power, allow political systems reflexively to explain their adaptive necessities and to externalize their functions of in- and exclusion, and contribute integrally to the positive circulation of power (as legitimate power) through society. In this respect, this theory breaks with traditional (metaphysical) preconditions of both normative and sociological inquiry, approaches theoretical norms not (or not only) as derivates of human rationality that are counter-factually imposed on social reality, but also as constitutive inner-societal facts, and denies that theory is a medium that literally produces a total description of society, or a total description of the terms by which a political system legitimizes itself in society. Political theory, on this account, is an internal aspect of the reflexive dimension of a societys political system, and it is invariably implicated in the factual production of legitimacy for society. Political theory offers to the political system a body of articulated normative principles. These normative principles permit the political system, in a particular situation, internally to reflect, adjust to, or even to discard components of its adaptive processes and functional responses: norms extracted from political theory allow the political system to clarify and organize its internal functions for itself, and they directly facilitate and cement its adaptive requirements. Moreover, these normative principles also provide an apparatus in which the political system can observe itself externally, in relation to other realms of exchange in society: norms derived from political theory allow the political system to describe itself for society as a whole, to predefine its addressees, and to identify or correct maladjustments in its self-constructions in society. Above all, theoretical norms provide a set of references in which the political system can externally project a stable image of the conditions of powers transmission and reception, and so more effectively include in its functions the constituent actions and agents of society.16 Theory, in consequence, provides norms for politics, and political power cannot obtain factual legitimacy in a society without reflexive norms. However, the normative constructs that theory provides for politics are not abstract concepts to which a political system is externally or literally (metaphysically) held to account or which monadically distil reliable accounts of the foundations of society. Instead, they are norms on which the political system has an internal functional dependence, and which express an inner functional intelligence within power itself. To understand political legitimacy, therefore, political theory must move beyond the traditional (metaphysical) dichotomy between the analysis of norms and the analysis of functions or facts, and it must comprehend the facts and norms of legitimacy as integrally related. The perspective required for this is a fully and conclusively sociological outlook, which interprets even theory itself, and the norms that theory produces, as a group of reflexively social (and so sociologically constructible) facts. Previous theories of legitimacy (both normative and sociological) have struggled plausibly to construct their object because they have proceeded from an artificially externalized understanding of the status of theory. It is only where theory, in double reflexivity, observes its position within the medium of power that an analysis of political legitimacy might be accomplished that evades the aporia of other perspectives. In pursuing a factual/normative approach to political legitimacy in this fashion, this article, as its title implies, claims that the other primary endeavour to propose a normative theory of society and its political power that surmounts the tension between normative and factual dimensions of legitimacy,17 namely the one proposed by J urgen Habermas, is not fully successful, and it is ultimately inadequate in its sociological construction of the preconditions of legitimacy. To be sure, if viewed from a classical normative/analytical perspective, Habermas approach to legitimacy appears to contain a striking sociological bias. This is the case on two separate counts. On the first front, Habermas argues that the legitimacy
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of public power has the sociological precondition that power (in the state) is constituted by means of discursive legal procedures that are sensitive to consensually oriented interactions in society: the production of legal norms able to constitute legitimate power depends upon, and arises from, factual social situations, in which speech actors secure reflexive agreement on specific matters of social concern.18 The process through which legitimacy arises from legality is thus detached from pure-normative or classical-theoretical models of practical reason: rationality producing norms are embedded in a symbolically formed life-world, and the rational speech acts formative of legitimating political norms reflect the social situatedness of engaged participants in discourse.19 At a widest level, therefore, Habermas indicates that the normative objectives of theory are interlaced with the practical needs of singular human subjects and collectives, such that the norms of reason form foundations for legitimate public structures as they facilitate practical-rational orientation and integration in society:20 reason and practice are never fully separate, and the rational construction of public/political norms is always shaped by distinct sociological motives. On the second front, the sociological dimension in Habermass account of legitimacy is also evident in the fact that he views the ability of participants in discourse to construct normatively generalizable (and politically legitimating) agreements as presupposing distinct societal conditions. This ability presupposes a pre-occurring socio-evolutionary process, through which the life-world has been rationalized to the degree that discursive exchanges are validated by statements requiring general evidence. Moreover, it also presupposes the existence of a public sphere [Offentlichkeit ], in which the communicative acts required for the formation of norms can occur,21 and institutions, such as constitutions and basic rights, which protect the public sphere from coercive encroachment.22 It is therefore sociologically essential for the legal construction of political legitimacy that institutions are present that facilitate the production of norms and that render the political apparatus of society accountable to norms. On these separate grounds, Habermas evidently deviates from pure normative analysis, and the legal-normative preconditions of legitimacy are always in part socially constructed. However, the sociological aspect of Habermass theory of legitimacy can also be accused of a simplistic and hyper-constructed minimalism. There are again several separate reasons for this. First, in Habermas account of legitimacy the communicative elaboration of legal norms that form legitimate power presumes that a society contains certain dimensions of interaction that are relatively immune to wider patterns of societal determinacy, and that discourse can produce norms asserting validity claims that can be generalized at a high level of inner consistency, or even in weak transcendence, across distinct social spaces, as universally acceded principles for the exercise of power.23 In this respect, Habermas necessarily imagines human society as rationally centred, and he argues that different realms of human interaction are uniformly underpinned and connected by claims expressing simple and societally indifferent forms of (human) reason. Second, in consequence, although Habermas claims that power is not a static, zero-sum resource in society and that legitimate power has a social and normative genesis as communicative power,24 he assumes that the discursive legal norms producing and measuring legitimate power can be stabilized against power and that they possess a socially occluded valence as articulations of overarching consensus.25 Third, in the final analysis Habermas account of political legitimacy is also (although Habermas would deeply resent this classification) reducible to the philosophical-anthropological claim that the normative construction and legitimation of power is sustained by inherent resources of human beings, and that legitimate power reflects and materializes the primary socio-integrative dispositions towards solidarity, communication, and consensus that all human social life (albeit often in suppressed form) incorporates.26 This results in the rather
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socially simplified and even tautological presumption that legitimacy in the public exercise of power depends on the ability of a political system to respond to and distil certain basic dispositions that always, although variably, inhere in and constitute the fabric of human society: the production of norms framing legitimacy depends on the positing of a perennial human substrate as the setting both for the production and transmission of legitimate power. The sociological dimension of Habermas account of laws formation of legitimacy and of the normative structure of society more generally thus lastly rests on the claim that the social is inherently human, and that the human in society (for some unspecified reason) always includes rational/normative potentials and rational/consensual orientations. The legitimacy of power, in other words, is demonstrated through the use of power as human power. The exact fashion in which a society generates norms, however, is not elucidated in this theory, and his account of society is sustained by a strategically constructed normative anthropology. Although it marks the most commendable endeavour to conceive legitimacy as both normative and factual, in consequence, Habermas approach struggles to envision the object of legitimacy without reliance on covert normative hypostasis. In this respect, moreover, despite his attempt to translate practical reason into communicative reason and to view reason as intricately embedded in variable societal communications, he also ascribes a socially overarching status to the normative functions of reason. His account of the generation of norms (classically imputed to theory or reflexivity) does not place norm-construction on conclusively societal foundations, and it produces norms in a realm that is evidentially distinct from the realm in which norms are required to apply. The standard of legitimacy, therefore, remains socially abstracted, and the ability of theory to distinguish between legitimate and non-legitimate power presupposes that theory can pre-construct a normative foundation for itself that is self-identical against the social objects that it evaluates. The problem of theory that plagues the relation between sociology and normative analysis, in other words, still persists in Habermas work.
IV. Political Legitimacy as a Category of The Social: A Theoretical History of Legitimacy

The assumption that supports the sociological approach to political legitimacy outlined here, and that most especially sustains the claim that the practice and the theory of political legitimacy are functionally interlocked, can be clarified most effectively through historical reconstruction. Indeed, historical observation of the gradual evolution of the forms and discourses of political legitimacy in modern societies can directly illuminate the constitutive relation between societys factual and normative political facilities. Naturally, it needs to be recognized here that the description of historical formation poses certain meta-level problems for both normative and explanatory analysis, and reference to historical forms as a foundation for normative inquiry always begs the question of whether the insights gained through reconstruction possess exclusively post factum validity. Nonetheless, the analyses below rest on four assumptions, which, it is suggested, authorize the use of historical/functional reconstruction to examine political legitimacy and its normative substructure. First, it is claimed here that modern societies have tended to assume overlapping structural features, and that certain characteristics (expressly: societal differentiation, functional pluralism, and geographical and temporal extensibility) are indispensable for the existence of a society under modern conditions. Second, it is claimed that modern societies rely on their ability to produce reserves of power in distinct and relatively consistent fashion, that the inclusive adaptation of political power to the pluralistic structure of modern societies is a primary
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precondition of the integrity of modern society, and that the legitimacy of power is tied to this process of adaptation. Third, it is claimed that power malfunctions (loses legitimacy) when it cannot be applied to its (broadly drawn) functions and recipients in a relatively generalized, recursive, and inclusionary manner. Fourth, as discussed, it is argued that the postulation of theoretical norms relating to power is an essential element in the adaptivity of political power, that norms intensify powers inclusionary facets, and that some norms do this more effectively, adequately and legitimately than others. The explanatory claim of the historical reconstructions below thus resides in the fact that it aims to indicate (albeit within a wide set of variation) which functions, in a modern society, require power, which norms allow power to adjust to these functions, and which norms enable power to perform these functions in an inclusionary, generalized, and legitimate manner. Underlying this is a claim, contra Habermas, that functional analysis does not preclude normativity, that a theoretical method of normative functionalism is sustainable, and that a modern society articulates, preserves, and legitimizes its political functions in distinct (though variable) normative conceptual form.
Legitimacy in Medieval Europe
European societies first began to express normative ideas about political legitimacy at the same time that they began to evolve social functions and institutions that we would now recognize as characteristic of the modern political system. Indeed, the first formulation of generalized accounts of legitimate power in European societies can be identified in the high and late medieval period, and this coincided with a dramatic functional transformation of European societies and a distinctive formalization of the resources of power that these societies contained. At this stage in their evolution, specifically, European societies experienced, at one and the same time, an increasingly concentrated abstraction and an increasing generalization of their political power, as a result of which political power was required to assume a progressively distilled, iterable, and inclusive form. That is to say, at this time European societies were beginning to locate political power in relatively stable, jurisdictionally centralized, and functionally unique and specialized institutions;27 they were beginning to separate power attached to specifically political actors from power assigned to other social roles and other social functions (that is, from bearers of ecclesiastical or highly embedded local authority); 28 they were beginning to require and to establish instruments to apply power across time and place, and to resolve locally, sectorally, and temporally distinct problems using transferable decisions and reproducible procedures.29 Underlying these transformations in the form of political power, it is also possible to identify a wider process of socio-functional differentiation, which, to varying degrees, determined the structure of all European societies at this time. The abstraction and generalization of power, thus, was a distinctive political expression of a wider, more universal process of differentiation between different realms of social practice. This process stimulated the specific need for societies to utilize political power as a societal resource, which could be applied across society in a form that possessed increasing internal consistency and was relatively insensitive to the structural locations of its recipients.30 These processes had the result, on one hand, that the societies of medieval Europe developed political systems that were bound closely to the law: that is, this period witnessed a rapidly intensified systematization and positivization of the law, and political systems began to rely on law as an internally consistent medium that could simplify and expedite the transmission of power across widening (geographical and temporal) spaces in society.31 At the same time, however, in this period European political systems also began to require
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an increasingly coherent conceptual fabric for explaining their political functions and for applying and circulating political power as a distinct and positively iterable commodity. The fact that these societies were beginning to concentrate power in static institutional locations and to transplant power across complex inner-societal boundaries meant that these societies also had an expanding need for a consistent and easily accessible reservoir of concepts to which they could refer in order to validate, authorize and simplify the application of power in the growing range of societal and jurisdictional settings in which it was now utilized. As a result of this, then, it can be observed that the formative differentiation of political power in the societies of medieval Europe also stimulated a process of conceptual positivization within power: that is, political power, once autonomously abstracted, began to depend on formally positivized principles in order to disarticulate, to explain, and reproducibly to apply itself. This process of conceptual positivization was partly carried out within the law. The systematic organization of the law and the judicial system in European societies offered stable norms and formulae for politics that greatly facilitated the positive transmission of power through society. Indeed, in most cases, the expansion and centralization of European societies coincided with the formal organization of the law and its judicial apparatus.32 Yet this process also stimulated a requirement for concepts of political legitimacy: it generated a societal need for conceptual principles to explain and underwrite power, and to ensure that political systems could envision the sources of their authority in a constant, generalized, and positive fashion and supply a constant description of their power to accompany and simplify its variable utilization.33 The first general constructs of political legitimacy that emerged in European societies, in consequence, were articulated in the context of a functional horizon, which arose from the evolutionary transformation of political power (and other functions) within distinct societies. The concepts of legitimacy that were promulgated in medieval Europe naturally displayed many variations, and these positions cannot be homogenized into one uniform outlook. For example, some early theories clearly asserted that the legitimacy of power depends on religious observance, and that secular power is fully circumscribed by religious authority.34 Other theories granted slightly greater autonomy to worldly power, but still explained the legitimate exercise of political power by defining divinely ordained law as the foundation and limit of governmental authority.35 Other theories argued that the legitimacy of government depends on its interrelation with consensually formed laws, embedded in time-honoured social privileges, customs and corporate agreements.36 Other theorists then began decisively to renounce all religious and conventional ideas of legitimacy, and to examine political institutions as essentially contingent components of social reality, requiring positively founded legal and executive structures.37 For all their oppositional variations or nuanced differences of emphasis, however, all these theories had an overlapping point of reference in the fact that they fulfilled the need of different emergent European societies reflexively to distinguish specifically political modes of agency, and to develop instruments and concepts for demarcating and transmitting their power, specifically, as political power: that is, as a general, functionally distinct, and trans-sectorally inclusive social form.38 All these theories, in other words, produced a conceptual matrix that enabled societies to reflect on the fact that their political functions now pertained to an abstracted and relatively inclusive social domain, that they could not effectively underwrite each act of powers application by relying on external principles, or on particular agreements or local declarations of consent,39 and that powers distribution through society needed to be supported by general, re-usable and iterable principles. Crucially, therefore, early theories of legitimacy all acted to provide a framework in which a society could discursively test the conditions of abstraction and
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generalization for political power. In particular, they allowed societies to enunciate a theoretical template that power could memorize for itself in order to preserve itself in a differentiated form and further to apply itself reproducibly and inclusively, with a minimum of societal contest, beyond the sectoral and patrimonial boundaries and across the extending regional and temporal horizons that developing modern societies contained. The functional result of early norms of legitimacy, in consequence, was that they helped internally to positivize the foundations of politics and political power by enabling power to project a constant account both of its own general source and of the environments in which it was to be used. It is of particular note in this respect that, for all their differences, medieval theories converged around the fact that they saw articulated law as the premise for the legitimate use of power.40 These theories insisted, first, that, to be legitimate, power must (in independence of inner-societal agreements) internalize a legal account of its own necessity; second, that power must be able to demonstrate, at a high level of generality, the legal reasons for its application; and third, that each distinct application of power should conform to principles of (albeit limited) judicial integrity and express justice.41 It is in this respect that the norms of early political theory contributed most to the factual ability of nascent political systems to legitimize their power, and it is in this respect that early political theories acted most pervasively to ensure the emergence of power as a socially iterable resource. The primary norm expressed by medieval legitimation theory that is, the norm of powers attachment to law in fact rapidly became a principle in which power could at once reflect on itself and gradually apply itself at a high degree of general abstraction, and the idea that power had to refract itself through the norms of law greatly increased the inclusionary diffusion of power through society as a general positive commodity. Indeed, it can clearly be observed that those late-medieval societies that had a strongly legal/normative tradition of defining legitimate power were also the societies that were best able to utilize political power in a fluid and positively flexible manner. 42 In such societies, early theoretical analyses of power acted specifically to abstract and extend the political resources that these societies had at their disposal, and they allowed these societies to enter the condition of proto-modernity with a statutory apparatus that is with an acknowledged ius statuendi that enabled them to explain, implement and reproduce their power in relatively positive, autonomous and sectorally overarching fashion.43 In this respect, self-evidently, it is necessary to avoid a complete relativization of the distinct claims of these theories, which in their own settings stimulated the most intense controversy. However, it is also important to note that the controversy between early theories of legitimacy was caused specifically by the fact that these theories emerged at a time when societies possessed an intensified need for legal instruments to abstract and transmit power, and, in different structural contexts, they all provided societies with a conceptual apparatus to adapt to this need. Across substantial theoretical and socio-cultural variations, therefore, early legal norms of legitimacy in medieval Europe were integral to the functional evolution of European societies and played a decisive role in the social abstraction of political power as a differentiated resource. The legitimating construction of politics in legal/normative categories, far from analyzing political conditions in formally deductive concepts, actively served to dislocate political power from other social exchanges, to provide positive foundations for its differentiated content, and so to enable power to distil itself in society as a generalized, inclusive and replicable resource. In acting to generalize and multiply power in this way, however, it is also important to note that the legitimatory descriptions of politics contained in early political theory had the further crucial function that, from the outset, they facilitated the adequate abstraction of societys politics by helping to reduce the social emphasis required in the use of political power.
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One of the central functional features of early concepts of legitimacy was that, because they offered principles to identify, and generally to explain power as an abstracted social object, they also enabled political actors in society to make decisions across relatively expansive social spaces and geographical territories without being forced in each setting to re-articulate, re-emphasize or even re-politicize the reasons and motives that first made these decisions necessary and valid or that gave to these actors the authority to make these decisions. Indeed, it might be argued that the initial emergence of specifically political functions in society (that is, the first evolution of manageably abstracted or implicitly collective forms of power and distinctively political models of administration) depended precisely on the fact that early conceptual patterns of legitimacy could act to locate power in statically delineated institutions, to promulgate constant and replicable principles and legal procedures to explain power as pertaining to and authorized by these institutions, and so to reduce the erratic intensity and, above all, the local variety of powers formation and of societys contest over power. The first generalization and abstraction of political power in society, in other words, relied on a closely correlated de-politicization of society: that is, it relied on an articulation of societys power that separated political power from other forms of social conflict, that generalized its use and minimized its exposure to locally and temporally distinct challenges, and that gradually immunized society as a whole against volatile, diffuse, or functionally amorphous experiences of politicality. If the positive abstraction and generalized or inclusionary multiplication of political power were the first two constitutive preconditions of the formation of the politics of modern society, therefore, both of these preconditions also relied on a restrictive deemphasis of societys political power and on a progressive reduction of the number of decisions and contents in society that needed to be objects of political contest or needed to be held at a high level of politicization. Concepts of political legitimacy, in articulating general normative principles of political validity, contributed fundamentally to establishing each of these preconditions. The legal/normative fabric of medieval political reflection, in sum, played a crucial role in facilitating the first stages of the adequate politicization of European societies. Indeed, the abiding concerns of early European political theory most especially its common insistence that power is contingent on law, that it requires stable and general justifications for its authority, and that its validity must be enunciated in generalized legal categories might all be seen as reflexive responses to the original requirement in European societies for a functionally differentiated realm of politics and for forms of power, centred in this realm, that could be utilized through society in positive, general, selective, yet inclusively consistent fashion. The theory of political legitimacy thus first evolved as integral to the political functions of European societies, and, albeit with great variations, it produced norms that, both reflexively and functionally, allowed these societies gradually to contest and to enunciate an inclusive form for their politicality.
Legitimacy in Early Modern Europe
If medieval political theory first created a normative apparatus to reflect and structure the emergent form of politics in European societies, the political theories that developed in the European societies of early modernity, following the Reformation, further elaborated this function. These theories produced increasingly positive and increasingly flexible and iterable explanations for political power, and they contributed in greater measure to powers functional abstraction and inclusive generalization. In particular, the theories of early modern Europe began to condense around the intuition that the state now existed as a distilled
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focus of political power in society, substantially and permanently distinct both from local social actors and from singular actors temporarily obtaining a share of the states power, and that the state needed to incorporate quite specific principles to explain its consistency, permanence and ongoing self-identity, and so to authorize and accompany (independently) its acts of legislation. Theories arising from the Reformation, to be sure, tended to contest the question of legitimacy in the most harshly polarized and deeply controversial terms, and no fully unifying pattern of reflection can be discerned at this time. Indeed, it might be seen as a specific feature of the Reformation that, in finally dislodging the state from the principles of supra-positive law formulated by the Roman Catholic church and demanding that the state autonomously express and consolidate its foundations, it elevated the state to a level where it became an object of heightened normative discourse in society, such that the state was increasingly judged by acutely intensified and deeply antagonistic principles. Despite this, however, a certain general normative disposition is implicit throughout even the most adversarial political stances of early modernity, and the normative conviction that the state must be able to reflect itself as an agent possessing a personality distinct from more momentary applications of power formed a guiding impetus for theories of this era. First, for example, the theories of legitimacy that were formulated during the immediate era of the Reformation began to reinforce earlier proto-positive constructions of state power by placing these on more generally accepted legal foundations. Although retaining a residual carapace of theocracy, the earliest Evangelical political doctrines tended to converge around a functional analysis of political authority as sustained by limited practical prescriptions of natural law.44 Subsequently, the more politically minded protagonists of the Reformation employed principles of natural law derived from Roman law to provide quasi-secular accounts of the power of early states, 45 and they began to recognize the state as a legal order that is supported and legimitized by its recognition and internalization of natural law, and that perpetuates its own legitimacy, in different settings, by referring to natural law as its own inner essence or legal form. In the early wake of the Reformation, therefore, a practically constructed natural law, albeit one often suffused with religious symbolism, became the tentative basis of the states personality, and it began to act as the foundation of the states statutory freedom, in independence of other (local and ecclesiastical) sources of power. During the Reformation and its aftermath, notably, many states experienced a dramatic growth in their need to produce legislation, and their ability to respond to this by introducing positive statutes depended on their internal normative self-construction.46 In the longer aftermath of the Reformation, then, early theorists of state sovereignty, exemplified in France by Jean Bodin, greatly expanded these emergent theories of the states positive personality, and they argued that where political power is not condensed indivisibly in the state society as a whole is prone to extreme conflict and instability. This idea allowed Bodin to construe societys power, in exclusively functional-political terms, as fully positive, abstracted, and distinct from other modes of social influence and authority.47 In parallel to this, the political theories of late-Renaissance humanism also developed the key idea of raison d etat to concentrate and justify the distinction of political power from other social exchanges, and to provide positivized accounts of power as both socially general and administratively localized in the state.48 At a subsequent point in this positivizing lineage, Thomas Hobbes utilized an atypical theory of the social contract to argue that legitimately exercised power is power that is formed by a common will, and that, if it incorporates such a will, power can be fully concentrated in the perennial artificial personality of the commonwealth, it can be transmitted through society in a positively iterable form, and it need admit no external check on its exercise.49 After Hobbes, European political philosophers extended this
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theoretical tendency by recasting earlier principles of natural law to construct an expansive store of terms to differentiate, justify, and inclusively positivize the sources of political power. During this period, the corpus of natural law came to constitute a functional vocabulary that allowed states, within broadly drawn normative parameters, to internalize positive justifications for their monopoly of power. Samuel Pufendorf exemplified this strategically positivist tendency in natural-law theory, and he employed ius-natural arguments in order at once to segregate the state from the church and other external sources of law, to concentrate the power of the state around a narrow set of functions and legislative tasks, and so positively to liberate the legislative capacities of the state.50 In each of these cases, in sum, theory helped the state to assimilate an account of itself as societally distinct, and to store within itself a contractually or ius-naturally positivized personality from within which it could find and project a constant support for the generalization and inclusive reproduction of its power. Naturally, not all theories emerging from the Reformation offered concepts that allowed the state easily to integrate a positive description of its authority. Post-Reformation France, for example, witnessed a number of political doctrines that defined the states legitimacy as determined by absolute laws, which they positioned as categorically external to the state. Indeed, the modern concept of legitimacy was first coined in debates conducted during the French religious wars. This concept was used to determine the moral obligations of regents, it construed power as legitimate if compliant with external moral norms, and it prescribed a requirement for citizens to depose magistrates who acted in contravention of moral laws. This separation between the state and the sources of its legitimacy culminated in the notorious Calvinist pamphlet Vindiciae contra Tyrannos, which expressed the claim that the moral/legal sources of legitimacy are always external to the monarch, and that the legitimacy of the monarch depends on the most exactingly exterior (natural) legal scrutiny.51 These views were also reflected later (although in rather mollified fashion) in the Germanspeaking territories that converted to Calvinism, where, in particular, Althusius argued that laws of the legitimate polity must accord with absolute principles of natural right: universal law, Althusius argued, is the form and substantial essence of sovereignty [majestatis],52 and all members of the polity, including the prince, are bound by such universal law.53 Even in such theory, however, it can still be observed that the greatest emphasis was placed on the attempt to construct the state as a formal person, and to endow the state with a legal identity that separated it from all other social actors, and to which it could internally refer to sustain, to reproduce and to reiterate its particular laws. Indeed, at the heart of these theories was the recurrent insistence that the legitimate state must personalize itself in a formal-constitutional order, and that those entrusted with the exercise of the states power must be bound by the inner principles of this constitutional personality.54 In the Vindiciae contra Tyrannos, for example, it is argued that legitimate princes are princes who abide by absolute laws. However, these absolute laws are in fact laws that are contractually given to the state by the people,55 and which the state internalizes as its own legal-constitutional order. On this account, thus, the people become the absolute contractual personality of the state, they confer identity and permanence upon the state that imagines itself as deriving legitimacy from them, and the state as it at once adheres to and enacts its own personality, assumes a consistent and articulated internal form from which it can project and generalize its power (for the people subject to it). Here again, therefore, the core pattern of post-Reformation thinking namely, that the state must possess a consistent legal identity, and must assume a perennial distinction against other persons using power (including, if necessary, those singular persons permitted to borrow its own power) received a specific and vital articulation, and this principle dramatically augmented the positive reserves of power stored in the state.
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As in earlier theoretical debates, in sum, it can again be observed that, for all their acute points of antagonism, early modern theories of legitimacy had certain crucial points of convergence. As above, it is necessary to emphasize that stressing the functional convergence of these theories does not need to entail a relativization of their distinctions: clearly, these theories also reflect an extremely high level of conceptual polarity. At the same time, however, these theories all responded diversely to a particular conjuncture in powers morphology, and they offered increasingly positive and free-standing templates through reference to which power could iterably authorize itself. Both the contractual and the ius-natural doctrines circulating through early modern Europe contained the implicit norm that the state must explain itself as an organic political construct and a perennially integral legal person, that it must be severed from all bearers of private or local power, and that it must be able to presuppose within itself a set of detached legal principles to accompany and simplify the application of its power and to envisage its political form as a self-reproducing point of address for political exchanges. In this respect again, theory served to elaborate a conceptual/normative repository for political power, with which power could articulate and satisfy its heightened need for autonomy, and through which it could preserve itself as relatively constant and inclusively self-identical throughout the altering and widening conditions of its transmission. Even in the extreme polarization of an early-modern norm-theoretical controversy, therefore, theory provided a unified apparatus in which power could imagine and apply itself as differentiated, abstracted, and generalizable, through which it could construct itself as a stable legal personality, able to enforce itself through reference to this inner personality and the needs, norms, and agreements that it incorporated. All these theories can be viewed as doctrines that allowed societies to respond to the increasing functional differentiation of political power, and above all, in using the law to separate the state from particular natural persons (that is, in translating power into legally concentrated form), acted to ensure that societies acquired power as an abstracted, positive, and iterably applicable phenomenon.
Legitimacy in the Enlightenment
In the age of High Enlightenment, subsequently, theories of legitimacy continued to perform analogous tasks for society, and the normative constructs of theory remained integrally interlocked with emergent socio-political functions. Whereas earlier theories of legitimacy had focused on crystallizing politics as a societally differentiated and inclusionary realm, however, doctrines of legitimacy in the Enlightenment assumed the additional function that they helped societies to describe and stabilize what they constructed as political within a wider societal constellation that was marked by an increasing degree of functional pluralism. Theories of legitimacy in the Enlightenment consequently served to develop a legitimating self-construction for the political system that permitted it to continue acting as positively self-authorizing, yet that also enabled it to reflect itself, in a rapidly evolving and increasingly diverse society, as co-existent with other increasingly differentiated societal practices and spheres of functional specification. It is for this reason that the primary models of legitimacy in the Enlightenment formed the originating history of the normative political outlooks that are now grouped together as liberalism, and it is for this reason, also, that these doctrines were deeply preoccupied with the normative problem of human rights, and with the constitutional codification and enactment of rights.56 Indeed, during the Enlightenment, theories of absolute human rights assumed the status of a dominant theoretical orthodoxy, and, following Locke, the idea that each person is a bearer of rights became widespread.
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Conventional liberal analysis usually interprets human rights and constitutional rights as legally enforced principles resulting from moral norms and externally deduced moral obligations. Such analysis habitually argues that these principles help to produce legitimacy for political systems because they place enforceable restrictions on the use of power, and they ensure that power obtains legitimacy as subject to external moral authorizations.57 Conventional liberal analysis also usually views early theories of human rights as doctrines that originally raised social awareness about human dignity and that compelled political systems to be attentive to normatively binding principles of human reason and human interest. However, the constitutional rights resulting from the age of Enlightenment can also be analyzed in a far more functional and less humanistic manner. Indeed, the normative theories of legitimacy promoting rights in the era of Enlightenment can also be seen, as in the above cases, as fulfilling specific yet non-explicit adaptive and inclusionary functions for society as a whole, which pure and literal liberal analysis of theory (and norms) struggles to comprehend. If viewed from a (fully) sociological perspective, in fact, early constitutional rights and the normative theories that first advocated the institution of formal rights in public law can once more be viewed as elements of societal self-reflection, whose function was to help societies positively abstract, preserve, and generalize an adequate and inclusive form for their politicality. On this account, rights did not emerge as norms deduced or imposed as external to societys evolving form. On the contrary, the rights of the Enlightenment were norms that emerged as objectively adaptive institutions, and, as such, they enabled societies to shape themselves in a manner consonant with their functional exigencies, and the theories reflecting on and prescribing rights also developed as internal elements of societys adaptive political self-description. Rights performed their functions for European societies in the Enlightenment in a number of different ways. First, reflecting the main impetus of post-Lockean constitutional theory,58 many societies began during the later eighteenth century to establish constitutions that enshrined a body of subjective or human rights.59 These rights served as principles to which states could simply refer to account for their social origins and distinctive legitimacy, and to concentrate their political power in increasingly abstracted form. As they examined themselves as recognizing human rights in their constitutions, states could both internalize and display a fully generalized and unquestioned description of their power and its formation, and this allowed modern societies to ensure that their power was not forced constantly to adjust to varied circumstance or to redefine itself, and to condense power, authorized by inclusionary reference to its addressees as general rights-holders, in unitary states. Human rights, although often construed as results of normative deduction or political emancipation, thus evolved as primary guarantees of powers positive autonomy and institutional concentration, and they allowed bearers of power to articulate highly autonomous legitimating foundations. This had particular importance in settings in which states were constructed on new or highly uncertain social terrains, and, at a functional level, it is no coincidence that rights sustained both governmental legitimacy and the process of institutional consolidation in the revolutionary transitions in both America and France in the late eighteenth century.60 Second, during the Enlightenment a body of substantive or particular rights was also established in state constitutions, and these offered legitimacy to states that gave formal legal recognition to certain activities that were identified as belonging outside the political system (for instance, rights of free movement, rights of free expression, rights of free contract, rights of free labour, rights of free ownership, rights of free scientific inquiry, etc). In this respect, rights acted to delineate the social activities and attributes that they protected as categorically private and not political, and consequently as exempt from direct political
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prerogative or encroachment. Rights thus, manifestly created, or at least sanctioned, spaces of human liberty and autonomy throughout society, and they acted to preserve a sphere of free human action against political colonization. In this literal sense, these rights can be seen (in the classical liberal sense) to have provided legitimacy for political systems by ensuring their legal recognition of basic human needs for freedom. At the same time, however, these rights also had other less obvious functions, and, in demarcating distinct spheres of social autonomy from the state, they also offered important functional and adaptive services to the political systems of European societies. In particular, substantive rights allowed emergent political systems to reflect the fact that other parts of their societies were also rapidly approaching a high degree of functional autonomy and differentiation, and so to define and stabilize their functions of inclusion and exclusion in relation to other spheres of social exchange. In the perceptibly transformational conditions of Europe in the age of Enlightenment, therefore, these rights enabled states, against a highly differentiated general social landscape, adequately to identify and classify what they could and what they could not reliably construct and integrate as pertaining to politics, and so to preserve and objectivize the differentiation of their political resources in a manner proportionate to the increasing differentiation of society as a whole.61 Indeed, in sanctioning certain private freedoms as statutory rights, political systems of the Enlightenment were able to remove large swathes of latent social conflict from the realm of political regulation, and they obtained a device that ensured that they could confine their acts of jurisdiction to that group of (quite restricted) social functions which they could effectively distinguish and accomplish as political. The separation between the private sphere and the public body of the state that was implicit in the substantive rights of the Enlightenment was, in short, a principle that facilitated the construction of states as differentiated inclusionary political actors. Although this separation ` la Habermas, as a public/discursive opening between state and is now habitually viewed, a society, which heightened the accountability of the state to the normative resources of the politically engaged citizenry, this can equally well be viewed as the outcome of a process that states (or political power within states) enacted for their own inner/functional motives. The rights of the Enlightenment in fact helped the state functionally to disarticulate itself from other spheres of interaction, and they strictly focused state power on a series of core operations. Third, during the Enlightenment a body of procedural rights was also instituted in state constitutions. These rights protected the equality of all persons before the law, and in particular they stipulated that legitimacy could only be attached to states prepared to process all cases brought before the law in equal fashion. These rights also originated in the theoretical corpus of the Enlightenment, and from Locke to Abb e Siey` es to James Madison, the assumption was prevalent that the legitimacy of the state depended on personal rights of procedural entitlement, especially in judicial matters.62 Naturally, in a literal perspective, these procedural rights greatly enhanced a general trust in the law, and they reinforced specific social (or human) freedoms against violation or unwarranted political intrusion, and they enshrined the legitimatory principle that all those subject to law were recognized within the law. At the same time, however, these rights also fulfilled less manifest functional requirements for society, and they once again helped European societies to adopt a sustainable positive form in which they were able to use and inclusively apply their power. Central to these procedural rights was the maxim that laws should be applied to persons without regard for their status, sectoral peculiarities or particular structural distinction. These rights thus imputed generalizable legal titles and generalizable subjective status to all social agents, and they ensured that all persons subject to the law were addressed in like manner and accorded with
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legal claims. This had the consequence that, through the imputation of rights, all laws were expected to recognize their addressees as legal subjects, or even as citizens, that all laws incorporated a fully generalized and uniform image of their addressees, and, as a result, that laws could be applied to the most diverse social actors in a formally routinized manner. Beyond their literal function of ensuring equal access to legal justice, therefore, the construction of laws addressees as bearers of rights had a greatly alleviating impact on the procedures in which states used their power, and the idea of the legal subject or the citizen could be employed to form a clear and easily permeable periphery between the political system and other spheres of social exchange. This, in turn, allowed states pre-emptively to organize their power, and it greatly simplified the process through which states could positively generalize, and a society could be transfused with, political power. In fact, the citizen came to act as a simplified channel of transmission between state and other parts of society, which had the result that power could be easily circulated and could easily explain its circulation, and that, as citizens or rights-holders, particular social agents could be held accountable to power in highly predictable, simplified and constantly replicable terms. The formal inscription of rights in (or as) the social periphery of political power, in consequence, might be seen as the final stage in the abstraction, the positive/inclusionary generalization and the de-emphasis of societys power, which had originally accompanied and shaped the first formation of distinct political resources and distinct political theories in European societies. By tracing their perimeters through rights, European states finally reached a position in which they could abstract power as thoroughly positive and specifically political, in which they could internalize a positive and static account of their powers validity, in which their power could be inclusively applied through society in a constant and structurally indifferent fashion, and in which only minimal levels of emphasis and political controversy were required for powers application. In all these respects, the rights, the rightsbased constitutions, and the normative theories of rights that ran through the Enlightenment served greatly to support the abstraction of political power, and to multiply the volume of generalized and iterable power contained and utilized in European societies. Indeed, it is no exaggeration to say that the modern positive form of power depends on the existence of rights, theoretically formulated and constitutionally implemented during the Enlightenment. On this basis, the political theories of the Enlightenment, mainly using normative arguments to insist on constitutional rights as foundations of legitimacy, contributed (factually) to the legitimization of power in European societies in a number of varied ways. This can be observed first of all in the functional dimension of legitimacy. The norms contained in these theories provided an articulated apparatus in which societies could objectivize and adapt to their need for increasing internal plurality, and they allowed societies to construct their reserves of political power as functionally adequate to the increasingly differentiated autonomy of other realms of practice in their social environments. Indeed, the theories of the Enlightenment brought to completion the more general sociological function of normative political reflection: that is, they reinforced the evolution of a differentiated and generally inclusive form for the politics of society, they marked out the inclusionary and exclusionary limits of the political system in relation to other social systems, and they allowed political systems specifically to define what had to be constructed as political in a society. This meant that, because they stored positive normative resources produced by theory, societies obtained political systems that were likely to react effectively and plausibly to their social environments, they evolved political systems that assumed capacities for making fluid binding decisions and for adjusting quickly and proportionately to social changes, and they developed political systems that were able to include particular social agents in accountable,
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pacified, and reproducible manner, and so to apply power through society without encountering destabilizing resistance. In this respect, the norms of legitimacy promoted in the theories of the Enlightenment secured a basic functional and motivational condition of legitimacy through society, fitting the terms of legitimacy usually invoked and described by sociological analysis. At the same time, however, the theories of the Enlightenment also contributed to the emergence of legitimacy in its more expressly reflexive dimension, which is commonly constructed through normative theoretical analysis. The norms of theory produced in the Enlightenment created a situation in which, in allowing societies to generalize and reflect on the pluralistic application of their political power and to project normatively invariable constructs of their members, they promoted the construction of political power as a resource obtaining a high level of inclusivity and specified generality, so as to be met, across a great variety of social constellations, with relatively subliminal compliance. Indeed, theorys norms created a setting in which particular social agents might even, in the conceptual style advocated by the Enlightenment (and later endorsed by Habermas), have begun to view the laws shaping their lives as potentially consonant with their own interests as members of a generalized and pluralistic society. The constructs resulting from theories of the Enlightenment might thus be viewed as expressing an epochal and societally foundational moment, in which the functional and reflexive preconditions of political legitimacy in modern society began to enter a close overlapping correlation. This set the abiding, although subsequently often negated, template of legitimacy for modern politics as a whole. Central to the formation of political legitimacy in modern societies, in consequence, was the advent of rights as a dominant element in social grammar: rights in fact brought the reflexive and the functional dimensions of legitimacy into relative articulated congruence. In according this importance to the normative principles of the Enlightenment, however, it needs to be observed that rights and legitimating theories of rights were consolidated at this time as components of societys exchanges about itself. The prescription of rights as constitutive aspects of political legitimacy resulted, not from an external or literal (metaphysical) diagnosis of societys needs, but from societys own reflexive self-observation. Rights and theories of rights were the functional and reflexive forms in which a society constructed and legitimized its politicality as adjusted to its own incrementally differentiated reality, and so as proportioned to the (limited) functions accorded to the modern political system. It is only if rights, theories of rights, and the normative functions of rights are examined in a fully sociological perspective as internal elements of societys self-reflection that the modern condition of political legitimacy can be fully comprehended.
V. Post-Enlightenment Political Theory: A Sociological Approach

The two main traditions in a post-Enlightenment theory of legitimacy, both in Europe and outside Europe, can also be observed in the socio-functional perspective used above to describe the formative trajectory of European political reflection. Indeed, this perspective is especially apt for examining social-historical settings, such as North America, in which originally European legal and political concepts were transplanted into new social environments.63 If reconstructed in light of their functional reflexivity, in fact, the declared self-conceptions of the main lines of modern political theory also appear as illusory and obstructively literal, and the more deeply reflexive meaning of these theories is best appreciated through functional reconstruction. As mentioned at the beginning of this article, debates on more contemporary theories of legitimacy tend to polarize into outlooks characterized as liberalism and outlooks
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characterized as republicanism. On the basis of the analysis given above, it is not difficult to identify the functional-reflexive qualities inherent in liberal doctrines of legitimacy. Indeed, the classical assumptions of liberalism namely, the belief that political legitimacy requires law and is the result of constitutional rights that at once determine, restrict and generalize the use of political power have manifestly perpetuated the societal legacy of the Enlightenment by producing reflexive resources that have determined and facilitated the political evolution of modern societies. As discussed, the norms and rights of classical liberalism have helped to shape and control political power in a limited and relatively diminished manner, proportionate to the pluralistic structure of a modern society, to integrate social agents in societys political functions in stable and relatively non-coercive fashion, and to separate many social practices from the state. In fact, the post-Enlightenment extension of general liberal rights to include rights of minorities has also performed an analogous function: this, where consistently practiced, has acted further to reduce the singular political intensity attached to conflicts over rights and juridically to regularize the boundaries between the political system and the rest of society. Additionally, even the social rights advocated in more recent liberal-normative theory can be viewed as principles that perform the essential function that they allow societies, especially those marked by widening political constituencies, to reflect on and gauge the interfaces between exchanges covered by political power and other spheres of practice, and to construct exchanges between politics and other social spheres (perhaps as welfare or sanctioned material redistribution) in predictably articulated and controllable form.64 Contrary to the literal (metaphysical) self-comprehension of liberalism, therefore, the legitimacy conferred by liberal ideas on political systems does not arise from any capacity of laws, rights or theories of laws and rights to obligate the exercise of political power to value-rational norms that are produced externally to the political system. Nonetheless, when observed as elements of reflexivity within the political system, the normative theoretical reserves of liberalism act as a crucial legitimating resource for society, without which the functional fabric of modern society could not evolve and the modern political system could not, either functionally or reflexively, obtain or preserve its legitimacy. In relation to this, then, if liberal theory has made a crucial contribution to the reflexive articulation of modern societys political power, the same (albeit less straightforwardly) can also be said of theories attached to republicanism. In literal terms, as discussed, republican theory is usually seen as the antithesis of liberalism.65 Unlike liberalism, republican theory normally insists on the positive importance of a strong state as the dominant centre of action in a society, and it ascribes great weight to the unified sovereign/democratic will of the nation, comprising all members of a society, as the source of the states legitimacy;66 it stresses the significance of the popular presence and participation of citizens (expressing public virtue) in the formation of the state and in the general pursuit of the common good; in its more radical expressions, it even argues that the holding of invariable subjective rights by particular persons prevents the emergence of the state as a fully legitimate public body and binds political power to private distinctions, privileges and interests:67 potentially, therefore, it champions democratic participation at the expense of all formal restrictions on political power. For these reasons, republicanism offers an expansive participatory norm for political legitimacy. This norm is seemingly counter-posed to the restrictive and societally pluralistic bias of liberalism, and it might even countervail the effective and iterable differentiation of societys politics by incorporating highly diverse social contents within the perimeters of state power and by assuming that the constant possibility of dramatic or emphatic re-foundation is an index of the political systems legitimacy.
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Beyond this literal surface, however, it is arguable that the normative content of political theories associated with republicanism has performed, and continues to perform, a social function similar to that performed by liberal norms. Indeed, it is arguable that, in particular socio-cultural locations, republican theories, like liberal arguments, have also assumed the core legitimating function for modern societies that they have helped to stabilize political power as distinctively and autonomously delineated, and as capable, across the diverse spheres of a differentiated society, of applying itself in abstracted, inclusively specialized and largely unemphatic fashion. First, for example, it can be argued that the republican belief that the general will of the nation is the foundation of state legitimacy has (however counter-intentionally) directly reinforced the function of liberal ideas in assisting the positivization of modern politics. Above all, the belief in early republican theory that the nation, the national will or even the sovereign nation is the origin of legitimacy first emerged as a general formula which states could internalize as a simple reference for differentiating their power from local sources of authority, and for accompanying their power as at once abstractly monopolistic and uniquely inclusive: it allowed power to presuppose an abstract singular origin for itself, and it instilled within power the principle that it was authorized by, and applicable to, highly generalized and socially abstracted subjects. The principle of national-republican authorization, thus, enabled states, in which power was located, to explain themselves and their competences in geographically and temporally overarching categories, to differentiate their power from private power (from power originally attached to local privilege, patrimonial rights, religious orientation, or time-honoured regional conventions), generally and positively to utilize their power across large and demarcated regions, without regard for the structural particularities of those subject to power, and pre-emptively to imagine and shape the surfaces to which they applied their power. Parallel to the status of rights in liberalism, therefore, the concept of national or popular/democratic sovereignty in republicanism had the sociological function that it helped to distil political power as a positively and easily applicable and universal commodity, and it allowed power to integrate a store of highly generalized and relatively perennial self-analyses to simplify its social transmission. National sovereignty is often seen as a political concept that accentuates the importance of shared practices and broadly enacted social agreements to legitimize power. However, republican nationalism might equally, like early liberalism, be seen as a doctrine that evolved in order to condense the complex sociological reality of the people into a conveniently simplified legitimating reference, and then to use this reference to produce contingent, intensely abstracted and highly iterable normative justifications for power.68 Like liberalism, moreover, republicanism has habitually served to reinforce the self-referentially positivized, and so outwardly integrative, structure of societys power: it has greatly augmented the reservoir of concepts through which power has been able to articulate its own source and project from within this a set of controlled formulae for simplifying the particular processes of its application. Like liberalism, therefore, it has acted both to intensify the adaptive abstraction of power and to endow power with explanations of itself that facilitate its even, restrictively differentiated and inclusionary circulation through contemporary society. In this respect, rights-based national-democratic sovereignty might even be seen as the necessary norm for political power as it evolved as an abstracted inclusionary social medium. Second, it is arguable that the republican concept of the citizen has also reflected similar functional purposes and acquired similar functional resonances. At one level, early republican ideas asserted that the participatory (not rights-holding) citizen was the absolute and irrevocable foundation of legitimate power. This was especially pronounced in the first preC
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1787 American state constitutions, in which legislatures were particularly dominant and rights were not yet consistently employed to limit legislative power.69 At this primary level, early republican ideas claimed that states only obtain legitimacy by virtue of their active (not virtual) inclusion of the entire national corpus of the citizenry in the political system:70 that is, by allowing the political system to be constantly modified and re-devised by the popular/legislative will of the citizens. In this respect, again, republicanism appears at face value as a prescriptive doctrine that militates against the differentiating social functions of political norms described above. Alternatively, however, it can also be observed that republican doctrines quickly learned to alter their initial construction of the citizen, and republicanism as a whole soon followed broader liberal ideas in defining citizens, not primarily as active constituents of the political system, but as political subjects determined by their possession of rights. On this basis, the concept of the citizen in republican theory began to generate normative theoretical principles that were very functionally beneficial for political actors and for political power more generally, and it began to articulate important dialectical references for explaining, simplifying and preserving the abstraction of political power. Most particularly, republican theory argued that states recognizing their subjects as citizens obtain legitimacy through national inclusion, and it offered the principle of inclusion to political actors as the primary positive explication of their power. In allowing states to construct their citizens as bearers of subjective rights, however, republican theories dialectically allowed states to proclaim inclusion as the source of their legitimacy whilst factually referring to citizens only in their narrowly manufactured quality as rights-holders, and thus acting to exclude citizens from any constitutive role in powers formation. In purporting to integrate and represent citizens as rights-holders, republican states were able to store a deeply reduced construct of the sovereign nation and the sovereign citizen as the grounds of their legitimacy, they were able to preserve and enunciate this legitimacy through a highly symbolized pattern of representative inclusion, and they were able to secure inclusionary legitimacy whilst conducting a structured process of exclusion.71 Like liberalism, therefore, republican doctrines specifically permitted states to produce an account of themselves as centres of integrative political legitimacy, reflecting all social agents as implicitly recognized in power: this allowed states easily to transmit their power through society, and to presuppose generalized conditions of inclusion, integration and receptiveness for this power. Additionally, though, these theories also enabled states to curtail the concrete political presence of citizens to a set of pre-structured and simplified entitlements, to secure their societal peripheries and predetermine the form and content of their exchanges with other realms of social function, and so factually to restrict the extent to which political power and its apparent sources needed to be directly or recurrently politicized.72 Moreover, as they came to enshrine rights of citizens in constitutional catalogues, states legitimized by republican theories also learned to use written constitutions to stabilize the terms in which members of society were able to demand or articulate new freedoms, and republican constitutions gradually formed a construct in which societal conflicts could be elaborated and/or defused within relatively static and apolitical constraints. Constitutions thus came to formalize a key dialectical element of in- and exclusion at the core of the republican states legitimacy, and, as in liberalism, the normative insistence on rights contained in constitutions became a functional precondition of the states self-consolidation as a differentiated, autonomous and inclusive political actor.73 In addition to this, third, it is also arguable that, once its first revolutionary-participatory ardour had waned, republican political thought rapidly began to distance itself from its foundational and socially integrative promises, and it reconfigured its core ideas in categories far more attuned to the pluralized environments of modern society. The idea of the
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sovereign general will, for example, was soon transformed into a doctrine that designated, not full popular sovereignty or repeated political re-foundation, but representation and the separation of powers as the most effective instruments for guaranteeing that national consensus forms the bedrock of governmental legitimacy. This conceptual transformation made it possible for societies and their governments to assume founding republican authorship for their power whilst in fact eliminating the nation from the direct authorization and exercise of power and conserving their power in strictly circumscribed and static institutions.74 Indeed, the great conceptual achievement of Siey` es was that he succeeded, first, in controlling the political dimensions of popular sovereignty by tying the concept of popular legitimacy to the principle of representation, and, second, in suggesting that the idea that sovereignty could be preserved in a constitution, which might itself be placed under politically withdrawn judicial protection.75 Moreover, early republican theory also increasingly transported the presence of the founding general will from the large number of natural persons that formed the unified body of the sovereign nation to the more positive legal person that was embodied in the constitution of the state.76 In its surrogacy as a legal person, then, the states constitution was expected both to represent and to formalize the founding will of the people, to preserve this will against potential misconstruction (by those whose will it expressed), and to limit the sovereignty contained in this will to a number of appointed executors and interpreters.77 Constitutionalism quickly became one of the dominant outlooks in republicanism, and the constitutional variant on republican theory was able progressively to attenuate the foundational impetus of republicanism and to accept a definition of the written or unwritten constitution as the legitimating foundation or the supreme juridical form for all legislative activity within the political system. By means of this definition, theories of constitutional republicanism were able to concentrate an account of the will of the people into an abstracted and easily iterable legitimating form,78 and so to use this form both to reflect the foundationally inclusive legitimacy of the political system and to impose definite limits on the volume of social themes and the number of social actors that needed to be factually integrated into the political system.79 For this reason, even the most fervently proclaimed republican ideals ultimately proved compatible with (and in fact immediately promoted) the formation of political systems that renounced claims to identity with their subjects as the source of legitimacy.80 In France, in particular, where the republican experiment was subject to many revisions and gradualist attenuations, the fusion of republicanism and liberalism that began concertedly after 1795 created a repository of founding reflexive terms that made it possible for power to be applied (albeit gradually) at a heightened level of abstraction and at a controlled level of inclusion.81 Like liberal ideas of legitimacy, therefore, the conceptual body of republicanism played a formative role in the political evolution of modern societies. At a functional level, these concepts offered a normative apparatus through which the modern political system could adapt to and consolidate its position in a differentiated society. At a reflexive level, these concepts provided a founding reference for the positive use of power, and they became invaluable to modern societies as they translated power into a form that could selectively control its inclusion of social agents and proportion its circulation through society. In consequence, the dominant antinomy in modern political theory that is, the antinomy between theorists committed to liberalism and theorists committed to republicanism is a false antinomy. Rights-based democracy, fusing liberalism and democracy, does not, as sometimes suggested,82 involve an awkward fusion of disparate theoretical constructs: instead, it is a functionally balanced norm that underwrites the positive form of modern power. In this assertion, my analysis again refers respectfully yet critically to Habermas, whose work
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also contains an attempt to resolve the antinomy between liberalism and republicanism. Habermas proceeds from the argument that this antinomy can be superseded through an analysis of democracy that accentuates the co-originality of the rights of liberalism and the public/participatory freedom of republicanism,83 and that envisages a recuperation of popular sovereignty through the exercise of political autonomy in the proceduralized deliberative politics of a polity whose participatory processes are made possible by basic rights.84 My approach, however, although accepting Habermass claim that this antinomy is unnecessary, suggests that Habermass approach to both lines of theory suffers from a lack of socio-functional reflexivity, it takes the claims of liberal and republican outlooks too literally, and in so dong it ultimately contributes to the persistence of the unnecessary antinomy between them. The assumption of a liberal/republican antinomy in fact generally reflects a quasi-metaphysical methodological blindness at the centre of both these theoretical canons. Both lines of theory, if observed as articulations of societys own political reflexivity, converge in the fact that they generate concepts that are functionally interwoven with the fabric of European and other Western societies, and they allow these societies reflexively to evolve as societies capable of abstracting political power. The ideas of legitimacy promulgated by these theories have allowed societies to construct accurately their functional requirements, to integrate social agents as bearers of only marginally disputable compliance, and so to evolve towards a condition of simultaneously functional and reflexive legitimacy. However, the legitimating role of these theories can only be comprehended through a fully sociological (that is, non-metaphysical) lens. The normative status and content of political theory can only be appreciated if conceptual literalism is suspended and if theories are approached as societys communications and if norms are approached as societys norms. From this standpoint, political theory is not a measure of a real or absolute object (i.e. legitimacy) outside itself, and the norms that it expresses are not prescribed by a real or absolute subject that is external to the political reality that it constructs. On the contrary, theory is a reflexive element in political power. The value of theory and theoretical norms can only be measured if their internality to power and the functions that are covered by power is acknowledged, and if theory is examined as a sensibility that heightens powers adaptive and inclusionary abstraction and is endlessly and recursively involved in societys production of legitimacy.
VI. Between Facts and Norms: A Re-formulation of Political Sociology

By offering this historical-functional reconstruction of political legitimacy and its interpenetration with normative political theories, this article does not imply that theory must withhold all critical comment concerning actual conditions of legitimacy, or that reflection on legitimacy cannot express a justifiable preference for one theory of legitimacy over others.85 In proposing this reconstruction, in fact, this argument expressly differs from standard sociological inquiry in that it refuses to relativize either legitimacy itself or the normative contents of theories giving accounts of legitimacy. On the contrary, this reconstruction insists that comprehensively sociological approaches to theories and practices of legitimacy have a particular qualification for offering critical analysis of governmental systems and even, to a degree, for adjudicating between the rival claims of different theories of legitimacy. In setting out this claim, however, the analysis proposed here suggests that a sustainable theory of legitimacy must evaluate the legitimacy and claims of different theories of legitimacy in a fully and integrally sociological perspective. This means, as discussed, that theory must construe legitimacy as an integrated functional and reflexive condition of a society, in which a society evolves adaptive functions, both practical and theoretical, for the sustainable
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positive abstraction and specified yet inclusive transmission of political power. For this reason, theory must examine the plausibility of different accounts of legitimacy, not because of their internal or abstracted normative structure, but because of their reflexive sensitivity to the functional evolution and inclusive generality of societys power. Integrally sociological theories of legitimacy, in other words, must approach both the object of legitimacy and the normative claims of theory about this object from a perspective that is internal to the functions of societys politics, and that, in double reflexivity, assesses theory and its normative claims in terms of their adequacy to the observable emergent form of society and its political power. Fully sociological political theory, therefore, might criticize certain governmental conditions or certain theories of governmental legitimacy. But it will articulate such critiques on the basis of a recognition of the co-constitutive relation between theory and its object, and in the knowledge that theorys role is to stimulate for a society normatively articulated descriptions of its power and of those exchanges that, at one moment in its evolution, this society can determine, both functionally and theoretically, as included within political power. A sociological theory of legitimacy might formulate a critique of the prevailing conditions in which a political system in one or another society seeks to legitimize itself, or of the theoretical principles used to deduce and account for the legitimacy of this system. At the centre of this sociological critique, however, must always be the principle that the fact of legitimacy and the norms of legitimation theory are fundamentally interlocked, and that the only reliable approach to determining the status of legitimating practices and legitimating norms is to observe the degree to which they allow a society to sustain an inclusive construction of its power and its politicality. On this basis, however, the argument proposed here claims that, because it combines factual and normative inquiry, a fully sociological analysis of legitimacy actually possesses a distinctive entitlement to engage in normative debate, and it can provide more reliable evidence to support political critique than other either normative or sociological theories of legitimacy. Fully sociological analysis can in fact elaborate socio-normative principles to examine both political legitimacy and theories of political legitimacy: a fully integrated analysis of legitimacy can offer precepts regarding the practice and the theory of legitimacy that address both the functional and the reflexive dimensions of legitimacy, and it can provide evidence that is applicable to both these dimensions. Through this dual perspective, a (fully) sociological theory of legitimacy can criticize both factual governmental practice and existing theoretical norms, and it can provide overlapping evidence that is both sociologically and normatively valid to sustain its critique in both of these applications. A (fully) sociological theory of legitimacy, thus, might claim entitlement to offer an account of legitimacy that authorizes itself both in the realm of reflexive norms and in the realm of objective facts, in which the norms are supposed to apply. On these grounds, a (fully) sociological approach to political legitimacy can offer three general insights into the likely preconditions of legitimacy in the factual politics and the political-theoretical norms of a modern society. Each of these is derived from a sociological mode of factual observation and construction, yet each can also be articulated in the form of a relatively free-standing and generalizable normative prescription. First, a sociological theory of legitimacy might suggest that modern politics, in order to consolidate and perpetuate itself as an inclusively general realm of practice, must necessarily explain itself as constrained by a regular and prescriptible legal order, and that theories of legitimacy expressing and promoting such legal order have a fundamental validity. It has been argued in the above that the political systems of modern societies first evolved and then preserved their self-construction as distinctively and inclusively political by virtue of their
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internal conjunction with positively iterable legal formulae, and that societies effectively abstracting and obtaining legitimacy for their politics usually establish a functional and reflexive link between political power and temporally stable (though incessantly adaptive) legal principles. Formative for the politics of a modern society is a constitutive and coevolutionary relation between law and power, which both furthers the abstraction and easy generalization of political power and generates juridical instruments to multiply, transmit and legitimize this power, as iterable and inclusive power. The result of this is that in contemporary societies, power usually needs to organize and explain itself through the enunciation of formal laws and rights, normally framed in a constitution, which it then reflects as a countervailing prerequisite of its legitimacy. A fully sociological theory of legitimacy, therefore, is likely to offer a sociological adjunct to standard normative analysis of political power, and of the relation between power and law. It is likely to argue that legitimate power in modern society necessarily depends on constitutional laws, norms and rights (which it reflects and constructs for itself), and that, where it acts outside the law by disregarding or transgressing against these legal norms, it is likely to stimulate unforeseeable legitimatory predicaments, to obstruct its own inclusive application and iterated social transmission, and perhaps even to cease to function effectively as modern power: that is, as pluralistically reflexive and inclusive power. From a sociological view, in consequence, the common normative/analytical claim that societies obtain political legitimacy through laws and rights is perfectly sustainable, and normative theories promoting rights as elements of legitimate power are thoroughly justified. This claim, however, is sustainable, not for normative reasons, but for sociological reasons. In fact, it is sustainable for reasons that might be best described as socio-normative: that is, for reasons sustained by norms that are functionally produced by society itself. The legitimating function of laws and rights resides, not in their substantial normative content, but in their facilitation of societys adequately political self-construction, in their contribution to the preservation of the political realm as a discretely abstracted, yet also effectively inclusive, set of social functions, and, correlatively, in the restriction of the social functions that have to be construed as political. From a sociological point of view, nonetheless, there is strong evidence to insist that the legal inscription of a rights regime at the centre of political power, and the normative theoretical apparatus supporting this, are crucial foundations of powers legitimate exercise. In conjunction with this, second, a sociological theory of legitimacy might also argue that one further condition of political legitimacy is that a political system, at least over longer periods of time, finds mechanisms to avoid over-intensifying its power and its politicality or coercing all society into structurally exclusionary descriptions of its dominant principles. Sociological theory can in fact use socio-normative evidence to demonstrate that the attempt to bring all society into convergence around political power, or around the principles claimed to justify it, is likely both to destroy the pluralistic fabric around which modern societies evolve, and to burden the political system with potentially unrealizable and destabilizing legitimatory self-descriptions. A sociological theory of legitimacy might argue that, as it has evolved and sustained itself autonomously as one group of social functions, the modern political system has focused its positive inclusivity on a restricted sphere of social purchase, and it has repeatedly indicated a primary exclusionary interest in stabilizing its own societal boundaries and in constraining itself against other social functions. Indeed, the modern political system has tended to undermine itself and forfeit legitimacy and inclusivity wherever it has lost this ability to articulate and externalize its peripheries, and it has been most effective in conditions where theories have been available to reflect and give objective form to its societal limits. Ultimately, therefore, the modern political system cannot uncontrollably
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inflate or extend its politicality without eroding its own self-construction as constitutively political. It is required reflexively to acknowledge that its legitimacy must admit societal pluralism as its external factual prerequisite, and it must accept that it cannot for long periods of time extend definitions of its legitimacy into all areas of social practice. For this reason, once again, sociological theory might suggest that written constitutions, and the theoretical precepts underlying them, are highly probable elements of a legitimate political system. The norms contained in constitutions enable political systems to give a formally circumscribed legitimatory articulation to their functions, they identify those social locations that do not require legitimized power, and they usually impede socially over-extended accounts of political authority.86 A sociological theory of legitimacy, in sum, might react with deep scepticism to the societal over-expansion of the objectives assigned to the political system, and it might also strongly oppose socially exclusionary or dominant assertions of the principles to which the political system ties its legitimacy. Theories that promote unsustainable patterns of legitimacy or that actively damage the legitimating reserves of the political system are usually those that unreflexively or arbitrarily disrupt the inclusionary and exclusionary balance within power, and that unsettle the capacity of the political system for employing rights to trace out its boundaries.87 At the heart of a fully sociological analysis of legitimacy is the belief that the idea of legitimacy, in its final residues, is a political systems construction of itself and its reserves of power, and it is in the nature of this self-construction that it cannot for long be promulgated as an overarching or approximately total description of society in its entirety. A sociological theory of legitimacy, therefore, might also suggest that theoretical positions that promote totalized and exclusionary ideas of the legitimate polity are likely, over longer periods of time, to undermine the capacity of the political system for inclusive application of its power. Third and most importantly, a fully sociological theory of political legitimacy might also offer the insight that societies that construct their politics in a reliable and sustainably inclusive fashion are usually societies that express their concepts of legitimacy in principles whose positive iterability is ensured by the fact that they can be applied in relatively unemphatic style.88 The de-emphasis of politics (that is, the capacity for making political decisions without recurrent or trans-sectoral re-negotiation of their justification and their application) might in fact be viewed as the defining political accomplishment and precondition of all modern societies: modern societies rely structurally on the fact that they hold most contents at a very low level of politicality, and they develop intricate procedures and instruments to ensure that what they construct as political power is transmitted in a highly distilled, differentiated and selected form. If this is the case, the construction of legitimacy in modern societies is integrally linked to the fact these societies acquire a normative system (incorporating a body of theoretically articulated norms and legal rights) which acts at once to de-politicize the social themes that are referred to the political system, the political systems responses to these themes, and the legitimatory basis of the political system itself. In consequence, a sociological analysis of political legitimacy might propose the socio-normative thesis that political actors or political theories that strategically place political emphasis on contents that are not necessarily susceptible to politicization, or that make political legitimacy dramatically contingent on principles that cannot easily (that is, without recurrent contest) be replicated across different temporal and societal settings, run the grave risk of offsetting the constitutive dynamic of modern social and socio-political formation. Political actors and theories of this kind are likely to erode the devices (primarily, that is, the legal formulae and rights) around which societies differentiate and de-politicize (or politically legitimize) themselves, and they are likely to render controversial the foundations of power in a manner that cannot
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be resolved whilst power is in the process of being utilized. Political actors and theories of this kind are likely to cause a crisis in powers positive inclusionary form. In this respect, sociological theory might again observe that written constitutions and constitutional rights are fundamental to legitimacy: constitutions and constitutional rights have the inestimable sociological benefit that they state the legitimating principles of politics as a clear, replicable, inclusive, and politically withdrawn set of norms and, in consequence, they tend to reduce the risk of the arbitrary or circumstantial inflation of political actions or values.
VII. Conclusion
Theory that observes political legitimacy as the self-construction of a social system organizing societys power and that observes the normative theory of legitimacy as one constitutive element of this system has the advantage over other theories that it can analyze politics and political legitimacy without simplifying the processes through which legitimacy evolves and without relying on hypostatic evidences from socially unreflected theories of legitimacy. However, this does not mean that sociological reflection has nothing to contribute to normative or critical debate about norms, legitimacy and the terms of acceptable societal inclusion. On the contrary, such theory has the distinct merit over other theories that it produces both normative and factual that is, socio-normative claims with which to support and promote critical assessment of legitimacy. In this respect, such theory can claim to resolve the problem of theory that causes the persistent antinomy between normative and sociological inquiry. Such theory might endorse many assertions of standard normative analysis, both liberal and republican, especially in respect of rights, legal inclusivity, the rule of law, and the necessity of constitutional forms in the use of power, and it might recognize that political systems that do not uphold these institutions are both likely functionally to degenerate and can be subject to sustainable normative criticism. It is crucial to the sociological theory of legitimacy, however, that it derives the grounds of its critique from a sociological construction of legitimacy, and, in fact, from theorys doubly reflexive self-analysis as internal to societys legitimating self-constructions. In other words, the concepts of legitimacy in fully sociological theory gain impetus for critical social commentary from the fact that modern societies need politics, as a discrete and inclusive group of functions, that modern societies presuppose (with variations) certain types of theoretical self-description for their politics, and that certain practices in political systems and certain normative principles in political theories lead societies to risk undermining their politicality and debilitating their basic ability to sustain an effective use of political power. A fully sociological theory of legitimacy is thus able to argue, both normatively and sociologically, that political systems that renounce a regularized and generalized legal order, that found the application of their power in highly expansive, or even exclusionary, principles, or that ascribe undue emphasis to their definition and application of political order, are unlikely to operate in a manner sustainable in a distinctively modern society and are in fact likely to produce malfunctions in their own operations and throughout society as a whole. In each respect, states protect themselves from malfunction through their normative respect for generalized laws and subjectively attributed rights, and so through their ability to produce conceptual norms that explain and prescribe laws and rights as the precondition of powers exercise. On this point, however, this article suggests that the norms that support legitimacy, analytically deduced by normative theory, are in fact modern societys own norms. A society that ignores these norms is in danger of forfeiting its modernity, and the advantages that are attached to modernity. Yet, to understand and preserve these norms, theory must break its attachment to the metaphysical
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traces attached (by theory) to society, and it must examine society and its norms as the terms of societys own (rather fragile) self-constructions.
NOTES I would like to express my gratitude to my colleague, Chris Berry, for commenting incisively on an earlier version of this article. 1. Sociology might be seen as in toto founded in a primary hostility to normative political analysis. For this view, see Robert Nisbet, The Sociological Tradition (London: Heinemann, 1970), 7; Hermann Strasser, The Normative Structure of Sociology. Conservative and Emancipatory Themes in Social Thought (London: Routledge, 1976), 27. 2. This article attempts to resolve some problems I began to apprehend in an earlier publication. See Chris Thornhill, Towards a Historical Sociology of Constitutional Legitimacy, Theory and Society 37, no. 2 (2008): 161197. 3. Even the most anti-liberal elements of republican theory, which insist that political norms can only be discursively provisional and subject to constant emendation, still stipulate that legitimacy depends on theoretically secure norms. See Benjamin R. Barber, Strong Democracy. Participatory Politics for a New Age (Berkeley: University of California Press, 1984), 170. 4. Immanuel Kant, Zum Ewigen Frieden, Werkausgabe, in 12 vols, ed. W. Weischedel, (Frankfurt am Main: Suhrkamp, 1967), XI:195251. 5. See Jean-Jacques Rousseau, Du contrat sociale (Paris: Garnier-Flammarion, 1966), 70. 6. Georg Friedrich Puchta, Cursus der Institutionen, in 3. vols (Leipzig: Breitkopf & H artel, 1841), I: 29; Hans Kelsen, Uber Grenzen zwischen juristischer und soziologischer Methode (T ubingen: J.C.B. Mohr, 1911), 223. 7. Robert E. Goodin, Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995), 41, 44. 8. Charles Taylor, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985), 2756 9. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 223. 10. Karl Marx, Zur Judenfrage, in Werke, in 43 vols. (Berlin: Dietz, 1958), I: 347377. 11. Claus Offe, Strukturprobleme des kapitalistischen Staates (Frankfurt am Main: Suhrkamp, 1972), 25; J urgen Habermas, Legitimationsprobleme im Sp atkapitalismus (Frankfurt am Main: Suhrkamp, 1973), 106. 12. Max Weber, Wirtschaft und Gesellschaft. Grundri der verstehenden Soziologie (T ubingen: Mohr, 1921), 12276; Vilfredo Pareto, The Mind and Society: Treatise on General Sociology, trans. A. Bongiorno and A. Livingston (New York: Harcourt, Brace & Co., 1935), 12991300; Pierre Bourdieu, The State Nobility, trans. L.C. Clough (Cambridge: Polity Press, 1996), 265. 13. See Talcott Parsons reading of Durkheim, which stresses the role of patterns of normative culture as social facts internalized by particular social agents, which build social structure and stabilize the social system as a whole: Talcott Parsons, Sociological Theory and Modern Society (New York: Free Press, 1965), 78. Further, see Robert Mertons theory of cultural structure as an aggregate of general values that promote conformity to institutionalized norms: Robert Merton, Social Theory and Social Structure, revised edition (Glencoe, Illinois: Free Press, 1957), 166. 14. See the postulated interrelation of the normative and the real in Jeffrey Alexanders recent work on the resources of civil power in the civil sphere (Jeffrey C. Alexander, The Civil Sphere (Oxford: Oxford University Press, 2006), 53, 110. Note further Hauke Brunkhorsts argument that democratic solidarity is the fundament of social practice (Hauke Brunkhorst, Solidarit at. Von der B urgerfreundschaft zur globalen Rechtsgenossenschaft (Frankfurt am Main: Suhrkamp, 2002), 217. 15. See Richard H. Fallon Jr, Legitimacy and the Constitution, Harvard Law Review, 118, no. 6 (2005): 17871853, 1796. 16. For related analysis of political theory as semantic self-description of the political system, see Niklas Luhmann, Die Politik der Gesellschaft (Frankfurt am Main: Suhrkamp, 2000), 319371. 17. J urgen Habermas, Faktizit at und Geltung: Beitr age zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt am Main: Suhrkamp, 1992), 21. 18. Ibid., 109. 19. Ibid., 18. 20. Ibid., 19.
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21. Ibid., 451. 22. Ibid., 445. 23. Ibid., 34. 24. Ibid., 182. 25. Ibid., 366. 26. Ibid., 59, 363. 27. On this process in very general terms, see Martin Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999), 128; Susan Reynolds, Kingdoms and Communities in Western Europe, 9001300, 2nd edition (Oxford: Clarendon Press, 1997), 39. 28. On the separation of politics and religion in different contexts, see Colin Morris, The Papal Monarchy. The Western Church from 1050 to 1250 (Oxford: Oxford University Press, 1989), 154181. It should be noted that the movement away from personalized law-finding did not follow an unbroken path, and erratic or local sources of legal power were periodically resurgent. On this, see, for example, John Bellamy, Crime and Public Order in England in the Later Middle Ages (London: Routledge, 1973), 128; Michael Hicks, Bastard Feudalism (London: Longmans, 1995), 110. The crucial process of political abstraction in this respect was the suppression of private jurisdiction under feudal law. In some societies, this began in the late twelfth century. For examples, see Robert C. Palmer, The County Courts of Medieval England 11501350 (Princeton, NJ: Princeton University Press, 1982), 292; George Burton Adams, Council and Courts in Anglo-Norman England (New Haven: Yale University Press, 1926), 185. But in some societies this was not yet completed fully in 1850. See Monika Wienfort, Patrimonialgerichte in Preussen. L andliche Gesellschaft und b urgerliches Recht 17701848/49 (G ottingen: Vandenhoeck und Ruprecht, 2001), 34, 79, 151, 251. 29. Jena-Pierre Poly and Eric Bournazel, The Feudal Transformation, 9001200, trans. C. Higgitt (New York: Holmes and Meier, 1991), 47, 81. 30. See the concept of political power in Parsons and especially Luhmann. Luhmann rejected the classical theory of power that defines power as a quality founded in physical superiority and thus as possessing system-forming, state-building and peace-establishing force: Niklas Luhmann, Klassische Theorie der Macht: Kritik ihrer Pr amissen, Zeitschrift f ur Politik 16, no. 2 (1969): 149170. Particularly useful in Luhmanns theory (in my opinion) is the fact that he viewed power, in strict terms, as the medium of communication for the political system and for the political system alone. Note, though, that my account of power as a differentiated societal resource argues, contra Luhmann, that the differentiated construction of power occurred, not in the eighteenth century, but in later medieval society. 31. For one example, see Anthony Musson, Medieval Law in Context. The Growth of legal Consciousness from Magna Carta to the Peasants Revolt (Manchester: Manchester University Press, 2001), 120; M. T. Clanchy, From Memory to Written Record. England 10661307 (London: Edward Arnold, 1979), 46, 50. 32. See for example Musson, Medieval Law in Context, 47; Susan Reynolds, The Emergence of Professional Law in the Long Twelfth Century, Law and History Review 21, no. 2 (2003), 347366, 361 2; Martine Grinberg, La r edaction des coutumes et les droits seigneuriaux: Nommer, classer, exclure, Annales. Histoire, Sciences Sociales 52, no. 5 (1997), 10171038. For the classic prototype of an early state with a centralized judiciary and strict legal order, see Christian Friedl, Studien zur Beamtenschaft sterreichischen Akademie Kaiser Friedrichs II im K onigreich Sizilien (12201250) (Vienna: Verlag der o der Wissenschaften, 2005), 219. 33. Niklas Luhmann, Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp, 1993), 280. 34. As extreme examples of this, see James of Viterbo, On Christian Government, edited and translated by R.W. Dyson (Woodbridge: Boydell Press, 1995); Giles of Rome, On Ecclesiastical Power, ed. and trans. R.W. Dyson (Woodbridge: Boydell Press, 1986). 35. Thomas Aquinas, Summa Theologiae, in 61 vols., ed. and trans. D. Burke and A. Littledale (London: Blackfriars, in conjunction with Eyre and Spottiswoode, 1969): XIV, 13. 36. Glanvill, The Treatise on the laws and customs of the realm of England, ed. and intro. by G.D.H. Hall (Holmes Beach, Florida: Gaunt & Sons, 1983), 2; Bracton, On the Laws and Customs of England, in 4. vols., trans. S.E. Thorne (Cambridge, Mass.: Harvard University Press, 1986), II, 305; John Fortescue, De Laudibus Legum Anglie, ed. S.B. Chrimes (Cambridge: Cambridge University Press, 1942), 5. 37. William Ockham, Opera Politica, ed. H.S. Offler (Manchester: Manchester University Press, 1974), 230; Marsilius of Padua, Defensor Pacis (New York: Columbia University Press, 1956), 37. 38. This argument might appear contentious if applied to theocratic ideas of legitimacy. However, there is much evidence to suggest that, even earlier than the period discussed here, the church acted as an agent that produced generalized ideas of law, which were then borrowed by states as principles of essentially positive legal justification. See Hartmut Hoffmann, Gottesfriede und Treuga Dei (Stuttgart: Hiersemann,
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1964), 2; Hans Hirsch, Die hohe Gerichtsbarkeit im deutschen Mittelalter, second edition (Cologne: B ohlau, 1958), 149 39. Niklas Luhmann, Staat und Politik. Zur Semantik der Selbstbeschreibung politischer Systeme, Politische Vierteljahresschrift, Sonderheft 15 (1984), 99125; 102. 40. Standing in, through its seminal importance, for a vast body of literature on this, see Fritz Kern, Recht und Staat im Mittelalter, Historische Zeitschrift, 120, no. 1 (1919), 179. 41. Throughout Europe early ideas of legitimacy gravitated around the idea that the king or emperor must be the highest judge and the most irreproachable dispenser of justice. For a tiny selection of the literature, see Otto Franklin, Das Reichshofgericht im Mittelalter, in 2 vols. (Weimar: B ohlau, 1867), 1; ` la Revolution (Paris: Editions Franc ois Olivier-Martin, Histoire du droit franc ais des origines a du CNRS, 1985), 215. 42. By this, I mean that political systems that were capable of mobilizing an idea of power as legitimized by law usually produced effective parliaments, and parliaments, legitimized by the show of consensus within political society, were powerful agents behind the positivization of law as statutory law. For accounts of the interplay between the legal framing of government and statutory freedom in England (a state with advanced statutory powers), see T.F.T. Plucknett, Legislation of Edward I (Oxford: Clarendon Press, 1949), 4. In France, the parlement of Paris also played a crucial role in positivizing law. The parlement was reinforced mainly by the rivalries between church and state, when its power was underwritten by the l egistes, and it was less strongly (although still substantially) supported by normative conventions. See ` Charles VII (13141422). Sa competence, ses F elix Aubert, Le Parlement de Paris. De Philippe le Bel a attributions (Geneva: Slatkine, 1977), 7. 43. The evolution of statutory powers was an (if not the) essential element of modern law in all national settings. The principle of ius statuendi as a formal power of states was elaborated in the Italian city-states of the later Middle Ages. See Bartolus, Super prima Parte in Digestum Vetus (Lyon: 1555), fol. 11; Baldus, In primam Digesti veteris Partem Commentaria (Venice: 1616), fol. 13. To exemplify this with discussions of the English context, see George W. Keeton, The Norman Conquest and the Common Law (London: Ernest Benn, 1966), 76, 78, 204); Alan Cromartie, The Constitutionalist Revolution. An Essay on the History of England, 14501642 (Cambridge: Cambridge University Press, 2006), 12. 44. Martin Luther, Von weltlicher Oberkeit, Weimarer Ausgabe, in 120 vols. (Weimar: B ohlau, 1883), XI: 245281, 252. 45. Philip Melanchthon differed from other reformers in that in the 1520s he began to endorse a doctrine of practical/political ius-naturalism, founded in Roman law. See Philip Melanchthon, De dignitate legum oratio, Melanchthons Rechts- und Soziallehre, ed. G. Kisch (Berlin: de Gruyter, 1967), 210213. 46. Stanford E. Lehmberg, The Reformation Parliament 15291536 (Cambridge: Cambridge University Press, 1970), 156; G. R. Elton, The Parliament of England 15591581 (Cambridge: Cambridge University Press, 1986), 34 47. Jean Bodin, Les Six Livres de la Republique (Paris: Jacques du Pays, 1579), 122. 48. Giovanni Botero, Della ragione di stato (Ferrara: Vittorio Baldini, 1590), 17. 49. Thomas Hobbes, Leviathan (London: J. M. Dent, 1914), 140. 50. Samuel Pufendorf, De jure naturae et gentium, in Gesammelte Werke, planned for 9 vols., ed. W. Schmidt-Biggemann, (Berlin: Akademie Verlag, 1997), IV: 30. 51. Stephano Iunio Bruto Celta [Pseud.], Vindiciae contra Tyrannos (1579), 1056. 52. Johannes Althusius, Politica, 3rd edition (Herborn, 1614), 174. 53. Ibid., 177. 54. Th eodore de B` eze, Du droit des magistrats, intro. and ed. R. M. Kingdon (Geneva: Droz, 1970), 445. 55. Celta, Vindiciae contra Tyrannos, 105, 136. 56. For the most seminal concepts of rights in the early Enlightenment, see John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1960), 367. For the later translation of concepts of rights into fundamental laws of state, see Paul Henri Thiry, Baron dHolbach, Ethocratie ou le gouvernement fond e sur la morale (Amsterdam: Mare-Michel Rey, 1776), 2025. On the early theory of rights as inalienable attributes of human subjectivity, see Immanuel Kant, Metaphysik der Sitten, in Werkausgabe, in 12 vols., ed. W. Weischedel, (Frankfurt am Main: Suhrkamp, 1976), VIII: 309634, 569. 57. See Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 149 58. See Blackstones claim that society is designed to protect individuals in the enjoyment of absolute rights: William Blackstone, Commentaries on the Laws of England, in 4 vols. (Chicago: University of Chicago Press, 1979), I: 120 and Tom Paines argument that legitimacy of civil power depends on the degree to which it secures those natural rights of man that human beings cannot preserve or fulfil on their own: Thomas Paine, Rights of Man (London: Penguin, 1985), 69.
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59. This began with the transformation of English law in the American states. But by 1800 many European states, including, in addition to France, Poland, the Netherland, and parts of Italy, had obtained rights-based constitutions. Even some pre-constitutional documents, such as the Landrecht of 1794 in Prussia, were shaped by ideals of natural rights. 60. J. Paul Selsam, The Pennsylvania Constitution of 1776. A Study in Revolutionary Democracy (Philadelphia: University of Pennsylvania Press, 1936), 46; John Markoff, The Abolition of Feudalism: Peasants, Lords, and Legislators in the French Revolution (University Park, PA.: Pennsylvania State University Press, 1996), 557. 61. Niklas Luhmann, Grundrechte als Institution: Ein Beitrag zur politischen Soziologie (Berlin: Duncker und Humblot, 1965), 135. 62. Siey` es argued that a state founded in national sovereignty needed also to be founded in equal judicial rights: Abb e Siey` es, Quest-ce que le Tiers-Etat? (Paris: Pagnerre, 1839), 17980. Madison also came round to the view that rights including judicial rights were essential for conduct of government. See Edward Dumbauld, State Precedents for the Bill of Rights, Journal of Public Law 7 (1958), 232344 63. On this transplantation, see Jack P. Greene, Peripheries and Center. Constitutional Development in the Extended Polities of the British Empire and the United States 16071788 (New York: Norton, 1988), 22, 81; David Ammerman, In the Common Cause. American Response to the Coercive Acts of 1774 (Charlottesville: University Press of Virginia, 1974), 1445; Robert Allen Rutland, The Birth of the Bill of Rights 17761791 (Chapel Hill: University of North Carolina Press, 1955), 14. 64. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971), 303. 65. Barber, Strong Democracy, 4. 66. Claude Nicolet, Lid ee r epublicaine en France (17891924). Essai dhistoire critique (Paris: Gallimard, 1982), 109. 67. Rousseau, Du contrat sociale, 51. 68. On the sovereign people as vanishing enigma, see Pierre Rosanvallon, Le peuple introuvable. Histoire de la repr esentation d emocratique en France (France: Gallimard, 1998), 42 69. Robert F. Williams, Experience must be our only Guide: The State Constitutional Experience of the Framers of the Federal Constitution, Hastings Constitutional Law Quarterly 15 (1988), 403427; 41620. 70. Note the rejection of virtual representation in early American constitutionalism. See Gordon S. Wood, The Creation of The American Republic 17761787 (New York/London: Norton, 1969), 176; Selsam, Pennsylvania Constitution, 170. 71. On the dialectic underlying this between souverainet e-principe and souverainet e-exercice, see Rosanvallon, La d emocratie inachev ee. Histoire de la souverainet e du people en France (Paris: Gallimard, 2000), 20. 72. As is widely known, in the USA early constitutionalists did not naturally advocate a bill of rights parchment barriers for the federal constitution, but ultimately accepted its value as a means for both reinforcing and controlling state power. See Leonard W. Levy, The Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 223. 73. Some historical literature observes the relation between the growth of public power and the sanctioning of private rights of individuals in early republican practices as paradoxical. However, this observation is telling for the argument of this article. See Gordon Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992), 324. 74. For an excellent account of debates around this, see Jon Cowans, To Speak for the People. Public Opinion and the Problem of Legitimacy in the French Revolution (New York: Routledge, 2001). On the crucial role played by Siey` ess ideas on representation in stabilizing republican government and in fusing liberalism and republicanism, and on Napoleons subsequent gratitude to these ideas, see Louis Girard, Les lib eraux franc ais 18141875 (Paris: Aubier, 1985), 12. For later fusions of republican ideals and representative government in France, see Odile Rudelle, La R epublique absolue. Aux origines de linstabilit e constitutionelle de la France r epublicaine 18701889 (Paris: Publications de la Sorbonne, 1982), 289. Regarding the USA, see James Madison, Alexander Hamilton and John Jay, The Federalist Papers (London: Penguin, 1987), 12627; J.R. Pole, Political Representation in England and the Origins of the American Republic. (London: Macmillan, 1966), 378; James R. Sharp, American Politics in the Early Republic. The New Nation in Crisis (New Haven: Yale University Press, 1993), 26. For a brilliantly sardonic account of this phenomenon generally, see Edmund S. Morgan, Inventing the People. The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), 254260. For an alternative view, which stresses the belief in sovereignty as actively exercised by the people in the American revolution, see Larry D. Kramer, The People Themselves. Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004), 8.
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75. Siey` es views on the need for a legal guardian for the constitution are reprinted in Appendix 4 in Michel Troper, Terminer la R evolution. La Constitution de 1795 (Paris: Fayard, 2006), 523539. These ideas it needs to be emphasized were not incorporated in the 1795 constitution. In fact, French constitutionalism remained largely hostile to judicial review of statutes until after 1958. But, even in France, the idea of the constitution as a supra-positive norm became vital for later republican theory and governance. 76. See for example Kants argument that republicanism equates with a moral constitution, centred in the power of moral elites, in Immanuel Kant, Metaphysik der Sitten, in Werkausgabe, VIII: 309634, 4301). 77. This function of constitutions is missed or even criticized by rather more literal analyses. See Richard Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007), 3. 78. Gordon S. Wood, The Creation of The American Republic 17761787 (New York/London: Norton, 1969), 266; Gary Wills, Explaining America: The Federalist (London: Penguin, 1982), 213; Sharp, American Politics in the Early Republic, 13; Pierre Duclos, La notion de constitution dans loeuvre de lAssembl ee Constituante de 1789 (Paris: Dalloz, 1932), 11. 79. Elisha P. Douglass, Rebels and Democrats. The Struggle for Equal Political Rights and Majority Rule during the American Revolution (Chapel Hill: University of North Carolina Press, 1955), 69. Hence the early use of the term anti-Constitutionalists to designate republicans in America. See Marc W. Kruman, Between Authority and Liberty. State Constitution Making in Revolutionary America (Chapel Hill/London: University of North Carolina Press, 1997), 58. 80. Sharp, American Politics in the Early Republic, 26. Analyses that accentuate the radicalization or democratization of American politics after 1800 might disagree with this view. However, even these analyses accentuate the fact that the Jeffersonian era also aimed at a limiting of government and a promulgation of a modern highly possessive (i.e. not specifically political) construct of liberty. See Joyce Appleby, Capitalism and a New Social Order. The Republican Vision of the 1790s (New York: New York University Press, 1984), 4, 22. This transformation of republicanism in France found its first apotheosis in Benjamin Constants claim that in modern societies people can only expect modern freedom. However, this might also be taken as the reason for the ultimate coalescence of political republicanism and post-Comtean positivism in republican France. For more general comments on the ultimate rather undramatic fate of French republicanism after 1875, see James R. Lehning, To be a Citizen. The Political Culture of the Early French Third Republic (Ithaca/London: Cornell University Press, 2001) 9; Sanford Elwitt, The Making of the Third Republic. Class and Politics in France, 18681884 (Baton Rouge: Louisiana State University Press, 1975); Nicolet, LId ee R epublicaine en France, 156, 164. 81. Vitally, see Pierre Rosanvallon, Le moment Guizot (Paris: Gallimard, 1985), 18 82. Bruce Ackermann, The New Separation of Powers, Harvard Law Review 113, no. 3 (2000): 634729, 722. 83. Habermas, Faktizit at und Geltung, 135. 84. Ibid., 133, 649. 85. Here my analysis is directly opposed to Luhmann, who had little time for critically inflected theory. For Luhmann theoretical attempts to explain the legitimacy of politics are consequently little more than acts of displacement, by means of which paradoxes of justification which have become strained are refigured or rendered less problematic and disruptive. See Niklas Luhmann, Die Paradoxie des Entscheidens, Verwaltungs-Archiv, 84 (1993): 287310. 294. 86. Carl Schmitt, in my view, is fundamentally wrong in arguing that constitutions give total expression to principles of political form. See Carl Schmitt, Verfassungslehre (Berlin: Duncker und Humblot, 1928), 121. 87. As an example of this, it might be argued, for example, that the years after 1918 saw a highly disruptive inflation of the theories of rights espoused by liberalism and the theories of national citizenship presented by republicanism. In consequence of this, many inter-war European states began to transform subjective rights into programmatic rights and group rights, and they began to re-define the nation as a unified and absolutely cohesive body that underscored and had to be objectively integrated into the state. This expansionary conception of politics, initiated by a distortion of the concepts of liberalism and republicanism, ultimately led, in those societies that converted to the ideology usually known as fascism, to a political saturation of society and to a social saturation of societys politics. 88. My analysis of this is strongly indebted to the brilliant essay by Jean Clam: What is modern power? Luhmann on Law and Politics. Critical Appraisals and Applications, eds. Michael King and Chris Thornhill (Oxford: Hart Publishing, 2006), 145162; 152.
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Chris Thornhill is Professor of European Political Thought and current Head of the Politics Department at the University of Glasgow, UK. His recent and forthcoming publications include: Niklas Luhmanns Theory of Politics and Law (co-author, 2003/2005); Luhmann on Law and Politics: Critical Appraisals and Applications (co-editor, 2006); German Political Philosophy: The Metaphysics of Law (2007); Legality and Legitimacy: Normative and Sociological Approaches (co-editor, 2010); A Sociology of Constitutions: Constitutions and State Legitimacy in historical-sociological Perspective (2011).

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Political Legitimacy: A Theoretical Approach Between Facts and Norms

II. The Antinomies of Theory

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

III. A Necessary Dichotomy?

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

IV. Political Legitimacy as a Category of The Social: A Theoretical History of Legitimacy

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

Legitimacy in the Enlightenment

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

V. Post-Enlightenment Political Theory: A Sociological Approach

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

VI. Between Facts and Norms: A Re-formulation of Political Sociology

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.

Constellations Volume 18, Number 2, 2011

2011 Blackwell Publishing Ltd.

A Theoretical Approach Between Facts and Norms: Chris Thornhill

2011 Blackwell Publishing Ltd.