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ON REALIST LEGITIMACY

  • Fabian Wendt (a1)
Abstract:

In the last ten or fifteen years, realism has emerged as a distinct approach in political theory. Realists are skeptical about the merits of abstract theories of justice. They regard peace, order, and stability as the primary goals of politics. One of the more concrete aims of realists is to develop a realist perspective on legitimacy. I argue that realist accounts of legitimacy are unconvincing, because they do not solve what I call the “puzzle of legitimacy”: the puzzle of how some persons can have the right to rule over others, given that all persons are equals. I focus on the realist accounts of legitimacy developed by Bernard Williams and John Horton.

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1 For an overview, see Galston, William, “Realism in Political Theory,” European Journal of Political Theory 9 (2010): 385411; and Rossi, Enzo and Sleat, Matt, “Realism in Normative Political Theory,” Philosophy Compass 9 (2014): 689701. Among the most influential realist works are Gray, John, Two Faces of Liberalism (New York: New Press, 2000); Williams, Bernard, In the Beginning Was the Deed (Princeton, NJ: Princeton University Press, 2005); and Geuss, Raymond, Philosophy and Real Politics (Princeton, NJ: Princeton University Press, 2008).

2 Not all realists aim at a theory of legitimacy. Geuss apparently is a skeptic: “The beliefs that lie at the base of forms of legitimation are often as confused, potentially contradictory, incomplete, and pliable as anything else, and they can in principle be manipulated, although in most cases not ad libitum” (Philosophy and Real Politics, 36).

3 Williams, In the Beginning Was the Deed; Horton, John, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” European Journal of Political Theory 9 (2010): 431–48; Horton, John, “Political Legitimacy, Justice and Consent,” Critical Review of International Social and Political Philosophy 15 (2012): 129–48.

4 See, for example, Christopher Heath Wellman, “Liberalism, Samaritanism, and Political Legitimacy,” Philosophy & Public Affairs 25 (1996): 211–37, at 212; Copp, David, “The Idea of a Legitimate State,” Philosophy & Public Affairs 28 (1999): 345 , at 13–6; Buchanan, Allen, “Political Legitimacy and Democracy,” Ethics 112 (2002): 689719, at 695. On Hohfeldian rights, see Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. David Campbell and Philip Thomas (Burlington, VT: Ashgate, 2001 [1913/17]).

5 See Wendt, Fabian, “Political Authority and the Minimal State,” Social Theory and Practice 42 (2016): 97122, at 117–21.

6 See, for example, Copp, “The Idea of a Legitimate State,” 4–5; A. John Simmons, “Justification and Legitimacy,” Ethics 109 (1999): 739–71, at 746, 752; Raz, Joseph, “The Problem of Authority: Revisiting the Service Conception,” Minnesota Law Review 90 (2006): 1003–44, at 1012; Christiano, Thomas, The Constitution of Equality (Oxford: Oxford University Press, 2008), 244; David Estlund, Democratic Authority: A Philosophical Framework (Princeton, NJ: Princeton University Press, 2008), 143; Edmundson, William, “Political Authority, Moral Powers and the Intrinsic Value of Obedience,” Oxford Journal of Legal Studies 30 (2010): 179–91, at 180.

7 Horton, “Political Legitimacy, Justice and Consent,” 130. Sleat, whose account of legitimacy is inspired by Williams, explicitly speaks of the right to rule. See Sleat, Matt, “Justice and Legitimacy in Contemporary Liberal Thought: A Critique,” Social Theory and Practice 41 (2015): 230–52, at 248; as does Philp, Mark, “What is to be Done? Political Theory and Political Realism,” European Journal of Political Theory 9 (2010): 466–84, at 471.

8 Horton, “Political Legitimacy, Justice and Consent,” 135.

9 Buchanan, “Political Legitimacy and Democracy.”

10 It should be noted that a particular government may lack legitimacy even within a legitimate state.

11 I here presuppose that the right to rule is exclusive: not everyone has it. This is disputed by Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 89, 108–9, 114–15. I critically discuss Nozick’s account in my “Political Authority and the Minimal State”.

12 I will briefly discuss the idea of tacit consent later.

13 Being a “philosophical anarchist,” Simmons argues that there may nonetheless be good reasons not to oppose some kinds of states. One reason not to oppose illegitimate states may be that (some kinds of) states promote justice (“Justification and Legitimacy,” 752–54). Elsewhere I argue that one cannot separate the questions of a state’s justice and its political authority so easily: states without political authority are unjust because they have legal powers over others, but lack the corresponding moral powers. See Wendt, Fabian, “Justice and Political Authority in Left-Libertarianism,” Politics, Philosophy & Economics 14 (2015): 316–39.

14 For his theory of political obligations, see Horton, John, Political Obligation (Basingstoke, UK: Palgrave Macmillan, 2010); for his theory of legitimacy see Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi”; and Horton, “Political Legitimacy, Justice and Consent”. He certainly thinks that the two should fit together in some way.

15 Of course, there are sophisticated theories of democracy that try to solve the puzzle of legitimacy (Christiano, The Constitution of Equality). I cannot discuss these theories here.

16 Williams seems to disagree (In the Beginning Was the Deed, 10).

17 Hall, Edward, “Bernard Williams and the Basic Legitimation Demand: A Defence,” Political Studies 63 (2015): 466–80, at 468.

18 Horton, “Political Legitimacy, Justice and Consent,” 137–41.

19 Rossi is most explicit about the appeal of a realist consent theory, although he rejects it in the end. See Rossi, Enzo, “Consensus, Compromise, Justice, and Legitimacy,” Critical Review of International Social and Political Philosophy 16 (2013): 557–72. Rossi focuses on compromise as a realist substitute for consent (not acceptance or acceptability, as Horton and Williams do). I critically discuss this idea elsewhere. See Fabian Wendt, Compromise, Peace and Public Justification: Political Morality beyond Justice (London: Palgrave Macmillan, forthcoming), chap. 4.4.

20 Horton, “Political Legitimacy, Justice and Consent,” 141.

21 Ibid., 141–45.

22 Ibid., 142. On the notion of “consent” he writes: “If one wants to call such recognition or acknowledgement ‘consent’ then there need not necessarily be any great harm in that; but it will result in a serious misunderstanding if it leads one to think that it is consent that is the ground or reason that explains political legitimacy” (ibid., 143; see also 141–42).

23 Ibid., 142.

24 Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 439, 442–43.

25 Ibid., 438.

26 Ibid., 438–39; see Horton, John, “John Gray and the Political Theory of Modus Vivendi,” Critical Review of International Social and Political Philosophy 9 (2006): 155–69, at 164.

27 Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 442–43; see Horton, “John Gray and the Political Theory of Modus Vivendi,” 164.

28 Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 443.

29 Ibid., 439.

30 Williams, In the Beginning Was the Deed, 3. Horton also suggests that providing security and order is a necessary condition for legitimacy (Political Obligation, 176–77, 191; “Political Legitimacy, Justice and Consent,” 140). See also his above remarks on modus vivendi arrangements.

31 Williams, In the Beginning Was the Deed, 4.

32 Ibid.

33 Ibid., 6. Somewhat similar to Williams, David McCabe upholds a basic “justificatory requirement.” See David McCabe, Modus Vivendi Liberalism (Cambridge: Cambridge University Press, 2010), 5–8, 153–65. He explicitly leaves open what the precise nature of that requirement is (ibid., 164). He sometimes spells it out in terms of “reasonable rejectability” and hence (non-)acceptability (e.g., ibid., 119). Sometimes, though, it sounds as if meeting the justificatory requirement would demand actual acceptance or “endorsement,” not acceptability (ibid., 155–56, 158).

34 For related worries about the critical theory principle see Newey, Glen, “Two Dogmas of Liberalism,” Critical Review of International Social and Political Philosophy 9 (2010): 449–65, at 462.

35 Williams, In the Beginning Was the Deed, 135–36.

36 Horton, “Political Legitimacy, Justice and Consent,” 143.

37 Ibid.

38 Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 443. He suggests this with regard to the legitimacy of modus vivendi arrangements. I here assume that one could say the same about the legitimacy of states.

39 Williams, In the Beginning Was the Deed, 10.

40 Ibid., 8. For discussion of Williams on modernity and liberalism see Matt Sleat, “Bernard Williams and the Possibility of a Realist Political Theory,” European Journal of Political Theory 9 (2010): 485–503, at 498–500; Hall, “Bernard Williams and the Basic Legitimation Demand: A Defence,” 474–75.

41 Ibid., 472.

42 Sleat, “Bernard Williams and the Possibility of a Realist Political Theory,” 497.

43 Wertheimer, Alan, Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003), 144.

44 Heidi Hurd, “The Moral Magic of Consent,” Legal Theory 2 (1996): 121–46; Alexander, Larry, “The Moral Magic of Consent II,” Legal Theory 2 (1996): 165–74.

45 A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), 83; David Archard, Sexual Consent (Boulder, CO: Westview Press, 1998), 4; Wertheimer, Consent to Sexual Relations, 144–52.

46 A. John Simmons, “’Denisons’ and ‘Aliens’: Locke’s Problem of Political Consent,” Social Theory and Practice 24 (1998): 161–82, at 168; Saunders, Ben, “Opt-Out Organ Donation without Presumptions,” Journal of Medical Ethics 38 (2012): 6972, at 71.

47 David Hume, “Of the Original Contract,” in Hume, Political Essays, ed. Knud Haakonssen (Cambridge: Cambridge University Press, 1994 [1748]), 186–201; John Locke, Second Treatise of Government, in Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960 [1689]), 341–42, 347–49 (§§ 110, 119–22). For discussion of tacit consent see also Simmons, Moral Principles and Political Obligations, chap. 4; and A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), chap. 4.1.

48 I thank John Horton for this objection.

49 Jeremy Waldron, “Theoretical Foundations of Liberalism,” The Philosophical Quarterly 37 (1987): 127–50, p. 144.

50 Simmons, “Justification and Legitimacy,” 761–62.

51 For a recent critical discussion see Huemer, Michael, The Problem of Political Authority (London: Palgrave Macmillan, 2013), chap. 3.

52 See Wendt, “Political Authority and the Minimal State,” 112–15. I think moral powers pose a special problem here. For a more general discussion of this form of argument, see Enoch, David, “Wouldn’t it Be Nice if p, Therefore, p (for a Moral p),” Utilitas 21 (2009): 222–24.

53 Williams, In the Beginning Was the Deed, 1–3; see also Geuss, Philosophy and Real Politics, 6–9; and Chantal Mouffe, On the Political (London: Routledge, 2005), 5.

54 Williams, In the Beginning Was the Deed, 5. Thus Sleat’s motivation for the above modification of Williams’s theory of legitimacy is to avoid relying on the “foundational moral premise that all persons matter.” He wants to avoid this premise since it would undermine the project of a nonmoralist theory of legitimacy that only builds on resources “internal to politics” (“Bernard Williams and the Possibility of a Realist Political Theory,” 495–96). Hall argues that Williams’s account is not based on this foundational moral premise (“Bernard Williams and the Basic Legitimation Demand: A Defence,” 470–72).

55 Williams, In the Beginning Was the Deed, 5.

56 Ibid. As Sleat puts it: “Legitimacy speaks not to the moral question of whether a state respects the freedom and equality of its members, but the political question whether the state can be recognized as a form of political rule that therefore also implies relations of obligations to obey and rightful coercion” (“Justice and Legitimacy in Contemporary Liberal Thought: A Critique,” 249). For another defense of Williams’s account of legitimacy as “derived from the practice of politics,” see Hall, “Bernard Williams and the Basic Legitimation Demand: A Defence,” 476–78.

57 For discussions of the realist rejection of “ethics-first views” see Freeden, Michael, “Interpretative Realism and Prescriptive Realism,” Journal of Political Ideologies 17 (2012): 111; Philp, Mark, “Realism without Illusions,” Political Theory 40 (2012): 629–49; Bavister-Gould, Alex, “Bernard Williams: Political Realism and the Limits of Legitimacy,” European Journal of Philosophy 21 (2013): 593610; Hall, Edward, “The Limits of Bernard William’s Critique of Political Moralism,” Ethical Perspectives 20 (2013): 217–43; Larmore, Charles, “What is Political Philosophy?” Journal of Moral Philosophy 10 (2013): 276306; Eva Erman and Niklas Möller, “Political Legitimacy in the Real Normative World: The Priority of Morality and the Autonomy of the Political,” British Journal of Political Science 45 (2015): 215–33; Rob Jubb and Enzo Rossi, “Political Norms and Moral Values,” Journal of Philosophical Research (forthcoming). Geuss is skeptical about the very distinction between the normative and the descriptive (Philosophy and Real Politics, 16–17).

58 See also Freeden, “Interpretative Realism and Prescriptive Realism,” 6.

59 Horton, “Political Legitimacy, Justice and Consent,” 139.

60 Ibid., 139–40.

61 Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 444.

62 Horton, Political Obligation, 9.

63 Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999), 7; Mason, Andrew, “Rawlsian Theory and the Circumstances of Politics,” Political Theory 38 (2010): 658–83, at 668; Sleat, “Justice and Legitimacy in Contemporary Liberal Thought: A Critique,” 245–47.

64 Mason, “Rawlsian Theory and the Circumstances of Politics,” 669–70.

65 On modus vivendi arrangements and legitimacy, see Horton, “Realism, Liberal Moralism and a Political Theory of Modus Vivendi,” 437–42; Wall, Steven, “Political Morality and Constitutional Settlements,” Critical Review of International Social and Political Philosophy 16 (2013): 481–99. In a recent, so far unpublished paper, Horton says more on the relation between his account of modus vivendi arrangements and his account of state legitimacy (“Modus Vivendi and Political Legitimacy”). For my own take on modus vivendi, see Wendt, Compromise, Peace and Public Justification: Political Morality beyond Justice, chap. 2.1; and my so far unpublished article called “The Moral Standing of Modus Vivendi Arrangements.”

* I am grateful to John Horton for extremely helpful written comments. Earlier versions of the article were presented at a conference on compromise and disagreement in Copenhagen in May 2015 and at a conference on modus vivendi in Münster in July 2015. I would like to thank both audiences for excellent discussions.

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