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Why should we be governed?
Social contract and the problem of state legitimacy from Hobbes until today.

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Legitimacy – Ladislav Vyhnánek / Department of Constitutional Law
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What is legitimacy? Basic problems.
̶http://existentialcomics.com/comic/211
̶Normative vs. descriptive concepts.
̶Why do we need legitimacy? Right to rule, justification of political power? What happens, if the
state lacks legitimacy?
̶It is important to distinguish between power and authority. Only the latter is connected to
legitimacy.
̶Does legitimate authority imply obligations?
̶Connected to other concepts (e. g. justice, power, coercion, but also support).

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Basic problems - continuation
̶Is there a difference between justifying states in general and a political legitimacy of a certain
state in particular?
̶Anarchist argument. How can autonomous individuals be under a general obligation to subject their
will to the will of someone else? Wolff argues that because there cannot be such a general
obligation to obey the state, states are necessarily illegitimate.
̶There is a lot of disagreement and legitimacy is still a very contested concept.
̶

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Descriptive concepts
̶An influential account by Weber: „ “the basis of every system of authority, and correspondingly of
every kind of willingness to obey, is a belief“.
̶Does not use a normative benchmark (does not depend on a certain procedure being used to establish
legitimacy or on respect to a certain substantive value.
̶Sources: tradition, charisma or legality.
̶Even under descriptive conceptions: How to determine „true“ beliefs or support, while maintaining
the power/authority distinction.

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Normative concepts
̶Requires a benchmark for justification of authority as „legitimate“
̶What is the benchmark? Is it consent (social contract theories), beneficial consequences (order,
protection of human rights ro simply development of civilization), democratic nature of the system
and democratic procedure?
̶

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Beneficial consequences
̶Bentham: Legitimacy depends on whether state and its laws contribute to happines of citizens.
̶Mill and other liberals: Protection of liberty and political participation
̶Problem of „objective values“; do they exist? If not, does it hinder articulation of general
conditions of legitimacy in substantive terms? And what about the „losers“?
̶But still – support of the population is often based, at least partly, on „substantive goods“ that
are delivered to the people.

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Social contract
̶Real or hypothetical?
̶Kant: It is a thought experiment – connected to public reason – the criterion is, whether
individuals could have consented to it (see the Rawlsian connotations).
̶Criticism: Just a myth, a hypothetical scenario? Real states were founded by acts of violence (but
Kant, above tries to refute it). Americans tend to stress the „real nature“ of their constitution.

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Democratic justification
̶Important innovation of the social contract theories.
̶The distinction between „binders“ and „bound“ disappears.
̶Still, the theories oscillate between „pure proceduralist“ and other conceptions (that also stress
the „good outcomes/substantive goods“).

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Legitimacy and democracy. Open vs. closed societies.
̶ Responsiveness that promotes stability as an „empirical“ advantages of democracy (democratic
instrumentalism).
̶In other words – finding out about the real levels diffuse and specific support can be beneficial.

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Modern constitutions and legitimacy
̶Modern constitutions, in a way, express their own conditions for legitimacy. Many of them are
shared – consider the concept of liberal democracy (democracy, rule of law, fundamental rights
etc.).
̶The problem remains, that is almost impossible to create a generally accepted, generally
applicable theory (the multitude of approaches will arguably always be there).

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International community and state legitimacy
̶What is the importance of recognition?
̶The idea of „minimal standards that justify non-intervention (Rawls).