(Normative) Force follows Function: The Concept of Legitimacy and the Functions of Political Institutions

The proposed paper aims at contributing to the ongoing debate (cf. for example Ladenson 1980, Raz 1986, Edmundson 1998, Buchanan 2002, Applbaum 2010) over the concept of political legitimacy– the “right to rule” – by developing and applying a novel methodological approach for evaluating different conceptual theories: the functional adequacy test. Inspired by Searles philosophical theory of institutions, the paper starts from the assumption, that social institutions are characterized by a distinctive set of normative advantages (i.e. claims, privileges, powers and immunities) which they need to fulfill their functions. Drawing on this idea, the paper argues further, that we can evaluate the different theories of legitimacy by asking the following question: What are the most important functions of government? Which set of normative advantages would a political institution need to fulfill these functions? Does a given theory of political legitimacy ascribe these normative advantages to political institutions? According to the functional adequacy test, a theory of legitimacy is only convincing if it connects a normative plausible and attractive theory of the telos of political institutions with the functionally adequate set of normative advantages. By applying this methodological approach, the paper argues that the concept of legitimacy is best understood as a Hohfeldian power-right. This power-right includes the normative capacity to create, abolish and modify privileges, claims, powers and immunities. The paper defends this view against two prominent contenders: The so-called traditional view, which holds that legitimacy is a claim right to command which corresponds with a duty of obedience owned to the relevant political institutions and a revisionist view, which holds that political legitimacy – in contrast to political authority – basically consists in a privilege to use coercion to enforce morally justifiable rules.