Illiberalism and legitimacy

In the Joy of Politics I asked whether politics as I had defined it, “legitimate collective decision-making,” after the Australian political scientist Kenneth Minogue, had to be democratic, and whether democracy as a legitimate form of politics, if not the only, had to be liberal.

The key issue, as I saw it, and which I mostly bypassed, was how one might define legitimacy — the “justification of authority,” as I wrote in The Joy of Politics, or the morally justifiable exercise of a political power which meets a minimal standard of justice, according to Allen Buchanan. My contribution to a better understanding of the subject was admittedly less than inspired.

Now Benjamin Schupmann has published a stimulating essay on the related question whether illiberal democracy — according to which people in a democratic regime might opt to “create a Nazi state, a Christian fundamentalist theocracy, or something equally illiberal… as long as they adhere to the law as they recreate their constitution” — can ever be legitimate.

Schupmann breaks the question down into two components. First, he asks, “which set of constitutional commitments takes priority , liberalism or democracy?” Second, he modifies the question as follows: “Which constitutional commitments reflect the terms of legitimacy?”

In keeping with the notion of militant democracy first articulated in Germany in the late 1930s, Schuppman thinks, legalistically perhaps, that a constitution can be devised which promotes and guarantees in sufficient manner a form of democratic liberalism. The key element in this thinking is the blueprint for the state, its constitution.

It remains nonetheless to situate the magic word in the debate, legitimacy. Does democracy confer legitimacy, regardless of outcome, liberal or illiberal? Is there some other value which legitimately constrains democratic action? Does a focus on legitimacy reveal a hidden liberal bias?

Where, finally, does this leave us with respect to our definition of politics, the institutionalizationized appeal against unchecked power?


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